Los Angeles, United States of America - Al-Qaeda may attempt to attack the Guantanamo Bay prison and free the men who are detained there - if the US government is compelled to reveal certain details regarding the genital searches of prisoners, the Justice Department has said in court documents.
In a 13-page brief filed on Friday in federal court in Washington, DC, government lawyers assert that a June 3 declaration signed by Guantanamo prison warden Colonel John Bogdan, which sought to justify the rationale behind the genital search policy , contains details about "operational-security and force-protection procedures" that, if made public, "would better enable our enemies to attack the detention facilities at Guantanamo or undermine security at the facility".
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"Protecting these operational-security and force-protection procedures from the public remains critically important, as evidenced by the recent al-Qaeda attacks on prisons at Abu Ghraib and Taji in Iraq," the Justice Department's brief says.
"Those attacks killed 16 Iraqi guards and released hundreds of al-Qaeda prisoners. Of note, Ayman al-Zawahri, al-Qaeda's leader, identified the [Joint Task Force-Guantanamo] detention facilities as a target during a 22-minute video posted July 31, 2013, stating: 'The terror network will spare no effort to free prisoners held at the US military-run detention centre in Cuba.'"
The government made these claims in response to a motion to intervene filed by this reporter in federal court last month which sought to unseal Bogdan's six-page declaration. Journalists can intervene in court cases and argue for the release of certain materials on the grounds that the public has a right of access to judicial records.
The warden's declaration was submitted by the government - under seal - in response to a lawsuit filed by Guantanamo attorneys, who argued the genital search policy Bogdan enacted at the height of a mass hunger strike in April interfered with prisoners' access to their lawyers. The new procedures required prisoners to agree to have their genitals searched whenever they left their cells to meet with attorneys, and upon return, to ensure they were not transporting "contraband". Rather than submit to the searches, numerous prisoners declined to meet with their lawyers.
Last month, US District Court Judge Royce Lamberth banned the searches, calling them "religiously and culturally abhorrent". Lamberth said the protocol Bogdan implemented under the guise of security was actually intended to deter prisoners from meeting with their lawyers. The judge noted the "government is a recidivist when it comes to denying counsel access" to the prisoners.
Three days after Lamberth issued his opinion, this reporter's Washington, DC-based attorney, Jeffrey Light, filed a motion to intervene to unseal Bogdan's declaration. The following week a federal appeals court reversed Lamberth's decision while the government prepared a formal appeal.
Secret, or not secret?
In response to the court filing, the government on Friday released a partially redacted version of Bogdan's declaration, and argued that the blacked-out passages in the document should remain secret - because they contained sensitive "operational-security information" about Guantanamo.
But it appears government lawyers were unaware that another version of Bogdan's declaration - one that contained a different set of redactions - was publicly released last month, in documents filed with the federal appeals court when the government asked Lamberth's decision to be put on hold.
Redacted passages that the government says needs to remain secret are unredacted in the earlier version filed on the public record as part of the government's appeal. At the same time, some unredacted passages in the declaration submitted on Friday are redacted in the public version of Bogdan's declaration filed with the appeals court last month.
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Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, told Al Jazeera the two versions of Bogdan's declaration were "a great illustration of the subjective nature of the redaction process".
"Most, if not all, of these decisions to withhold information are judgment calls, not simple questions of right or wrong," Aftergood said. "And depending on who does the redacting, you can often get a different result."
Indeed, in the public version of Bogdan's declaration submitted to the appeals court last month, the following passage is unredacted:
If the detainee would need to use the restroom in Camp 6, the meeting must end and the detainee would need to be moved by guard staff back to his cell.
The same passage, however, appears this way in the version of Bogdan's declaration released on Friday:
If the detainees would need to use the restroom in Camp 6 [redacted] .
Another passage in Bogdan's declaration released on Friday says:
The frisk search that is conducted is to ensure there is nothing concealed between the clothing and the body.
However, the word "frisk" is redacted from the public version of Bogdan's declaration submitted to the appeals court last month. The earlier version also says: "At no time is the detainee's actual groin exposed to the staff," whereas that passage is redacted in its entirety in the version of Bogdan's declaration the government released on Friday.
A passage in the earlier version of Bogdan's declaration says:
Additionally, for security reasons, internal moves could not be conducted in proximity to the attorney visits.
That sentence has been redacted in the version of Bogdan's declaration released on Friday.
Another passage in the most recent version of Bogdan's statement says:
During the brief movement to the camps, detainees are restrained in a manner consistent with standard procedures for military corrections.
However, the last part of that sentence, "in a manner consistent with standard procedures for military corrections", was redacted in the public version of the declaration the government released last month.
In all, the first five pages of Bogdan's declaration released to this reporter on Friday contain redacted passages that appear entirely unredacted in the version of his declaration submitted to the appeals court last month. Meanwhile, the final paragraph of Bogdan's declaration contains many unredacted passages that are redacted in the public version filed with the appeals court.
"Strictly speaking, this declaration was not classified, it was 'For Official Use Only'. But the same phenomenon shows up in the classification process," Aftergood said. "One clever technique used by some [Freedom of Information Act] requesters is to request the same document from different agencies, because the agencies would de-classify it differently, and it was a good way to get more information released."
The seemingly arbitrary nature of whether or not a statement should be concealed from the public has ramifications over the whole nature of the secrecy of government documents, he explained.
"The subjectivity of the classification process is important because it has implications for efforts to combat overclassification," Aftergood added. "If decisions to classify information can be independently reviewed by other 'subjects' who have no self-interest in the classification decision, I think that kind of review process can help to strip away lots of unnecessary classification."
Still, Justice Department lawyers submitted yet another declaration by Bogdan under seal on Friday, explaining why the redacted passages in his June 3 declaration should remain secret, even though most of the same passages, those that government lawyers said - if revealed - would make Guantanamo vulnerable to an attack, are unredacted in the version of his statement the government itself made public in its case with the appeals court last month:
In particular, the June 3, 2013, declaration discusses operational-security information concerning:
- How and where detainees are moved,
- When detainees cannot be moved,
- The capabilities and limits of current guard force staffing,
- Details about the physical layout of the detention facilities,
- Certain risks for introducing contraband into the facility,
- The physical details of the vans used for transporting detainees.
The declaration also provided precise details of how detainees are now searched for external movements outside their residence camps... These details, if publicly disclosed, would better prepare enemies to attack the detention facility… But were the declaration released, it would reveal to the public specific operational-security measures or force-protection procedures, and thus the limitations of those measures and procedures. This will enable our enemies, foreign or domestic, to better prepare for an assault or operation against [Joint Task Force-Guantanamo], thereby enhancing the risk to national security and endangering United States personnel.
With regard to the way prisoners' genitals are searched, Lamberth disclosed those details in his July 11 order.
He said guards were instructed to search a detainee's genital area "by placing the guard's hand as a wedge between the [detainee's] scrotum and thigh and using [a] flat hand to press against the groin to detect anything foreign attached to the body". Guards use "a flat hand to frisk the detainee's buttocks to ensure no contraband is hidden there".
Moreover, the government's assertion that if secret portions of Bogdan's declaration were unsealed it would reveal "details about the physical layout of the detention facilities" doesn't take into account that satellite images of the camps have long been accessible via Google maps . Nor does the government acknowledge that this reporter and dozens of other journalists have toured the prison and published detailed stories about the facility.
Light, the Washington-based attorney, intends to file a formal response to the government in federal court in the weeks ahead.
Follow Jason Leopold on Twitter: @JasonLeopold