WASHINGTON — The Justice Department improperly withheld important psychiatric records of a government witness who was used in a "significant" number of Guantanamo cases, a federal judge has concluded.
The government censored parts of the records, but enough has been made public that it's clear that the witness, a fellow detainee, was being treated weekly for a serious psychological problem and was questioned about whether he had any suicidal thoughts. The witness provided information in the government's case for detaining Aymen Saeed Batarfi, a Yemeni doctor who the government announced last week it would no longer seek to detain.
In a little-noticed ruling last week, Judge Emmet Sullivan found that the witness's testimony in other cases could be challenged as unreliable.
During a hearing last week, Sullivan castigated the government for not turning over the medical records and ordered department lawyers to explain why he shouldn't cite them for contempt of court.
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"To hide relevant and exculpatory evidence from counsel and from the court under any circumstances, particularly here where there is no other means to discover this information and where the stakes are so very high . . . is fundamentally unjust, outrageous and will not be tolerated," Sullivan said, according to a transcript of the hearing.
"How can this court have any confidence whatsoever in the United States government to comply with its obligations and to be truthful to the court?"
He also criticized the government for deciding at the last minute to drop the case against Batarfi, who's been held at Guantanamo for seven years, and questioned its motives for doing so. He suggested that the government's announced plans to seek a country that would take Batarfi were really just a scheme to continue to detain him without due process.
"I'm not going to let this case drag on, or any of the other cases on my calendar, indefinitely while the government embarks on what it calls its diplomatic process, because I have seen in the past that that diplomatic process can indeed span months and years, and I have some serious concerns as to whether it's yet and still another ploy . . . to continue with his deprivation of his fair day in court."
Sullivan threatened to have government attorneys return to court in 14 days to report on the progress of freeing Batarfi "and every 14 days thereafter."
"I'm not going to continue to tolerate indefinite delay on the part of the United States government," Sullivan said. "I mean this Guantanamo issue is a travesty . . . a horror story . . . and I'm not going to buy into an extended indefinite delay of this man's stay at Guantanamo."
It's unclear what information the witness, who wasn't named, provided against Batarfi or the other detainees. The Justice Department decided last week to release Batarfi, signaling that it no longer had sufficient evidence that he was an enemy combatant although he was held for seven years.
Sullivan ordered the Justice Department to notify other judges of the psychiatric records so they could assess whether the government's failure to reveal the extent of the witness's mental problems have bearing on other detainee cases.
Court records appear to indicate that the witness had an antisocial personality disorder. In a legal brief, Batarfi's lawyers point out the diagnosis could mean the person is prone to lying and lacks regard for the difference between right and wrong.
"Given the nature of the medical records about this particular detainee it is difficult to conceive how the government might offer him as a credible witness," said Batarfi's lawyer, Bill Murphy, who said he couldn't reveal information about the witness because of a court order.
Justice Department lawyers say the medical records were released inadvertently to Batarfi's lawyers and argue that they'd already released documents that raised similar questions about the witness's reliability, as required under evidence sharing rules.
"Indeed, (the government's) prior disclosure of information undermining the credibility of the detainee-witness was much more explicit and likely to be far more helpful to the petitioner's case than the medical record at issue" said Justice Department spokesman Dean Boyd in response to questions about the matter.
Sullivan, however, was skeptical of the government's explanation and warned that "someone's going to pay a price" for not disclosing the information.
"The sanction is going to be high," he said. "I'll tell you quite frankly if I have to start incarcerating people to get my point across I'm going to start at the top."
Coincidently, Sullivan presided over the corruption trial of former Alaska Republican Sen. Ted Stevens and was similarly critical of the Justice Department's handling of evidence in that case. Attorney General Eric Holder recently asked the judge to dismiss the indictment against Stevens after concluding prosecutors withheld important evidence from the defense in the case.
The discovery of the records in Batarfi's case raises larger questions about the quality of the government's Guantanamo witnesses and whether the government has fulfilled legal requirements to provide the detainees' lawyers with evidence that could clear their clients.
According to court records in a separate case, an unidentified government witness who was believed to have psychiatric and substance abuse problems provided information to the government about 40 other detainees.
And earlier this year, news reports revealed that the government relied on testimony by detainee Yasim Muhammed Basardah for evidence in dozens of cases although his reliability was questioned by military officials. Last week, a federal judge ordered him released, although the government is unlikely to free him anytime soon because it says he can't be sent back to his native country, Yemen.
Batarfi, the doctor, is also unlikely to be released because of similar problems. There are nearly 100 Yemenis among the 240 or so Guantanamo captives, in part, because Bush administration officials never succeeded in negotiating a repatriation agreement for those who'd been earlier approved for release.
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