Vanishing Ruling Gives Insight Into the Redaction Process
On March 16, 2010, Judge Henry Kennedy, Jr., of the U.S. District Court in Washington, D.C., granted a habeas petition for the release of Uthman Abdul Rahim Mohammed Uthman. He has been in US custody since late 2001, and has been in Guantanamo Bay, Cuba, since 2002. Uthman was the 44th prisoner in Guantanamo to have his habeas petition heard—of those 44, his is the 33rd to have his detention declared illegal.
Judge Kennedy said, in his March 16 ruling, that several of the government witnesses were unreliable because they had been subject to torture. One of the witnesses had been diagnosed as “psychotic,” and had a mental condition that made his testimony “unreliable.” Prior to publication, the March 16 ruling had been cleared for release by the Justice Department, and marked “REDACTED” at the top of each page. On March 17, the opinion was pulled from the court’s electronic docket, to be replaced several weeks later with a highly altered version of the opinion, missing eight pages of information. The altered version did not mention the “unreliable” government witness, and also deleted the circumstances of Uthman’s capture. Nor does it mention that one of the witnesses relied upon by the government committed suicide in Guantanamo three years ago.
Normally, when an opinion is published, and information is redacted, those portions are marked as such. But this opinion has had whole paragraphs and footnotes deleted, and sentences rewritten. This makes one wonder, is such a wholesale rewrite of an opinion for public consumption unusual, or is this the norm? It seems that, in this case, the Justice Department had approved the opinion before doing a thorough review for classified information, and then gave Judge Kennedy a choice: write a new version that did not include classified information, or the whole opinion would be marked as classified. But the second, rewritten version neither refers back to nor acknowledges the presence of the original opinion. Stephen Gillers, legal ethics professor at NYU School of Law, said that there might be legitimate national security issues, “[b]ut that concern then inspired him to participate in the creation of a parallel universe that fools everyone except a small circle of judges. We don’t allow the justice system to create false impressions.”