Evidence? What Evidence? Files, Files, Who Has The Files?

I am very dismayed over what I am reading of late concerning the lack of files on the Gitmo detainees.

As any practicing attorney knows, whether the work is civil, criminal or transactional, there are files. Files are necessary, and indeed, crucial. Files can be stored on computers, can be hard copies bound in legal folders, or stored on disks or flash drives. And physical evidence is generally stored in boxes, bags or other containers, and tagged and logged.

The Bush Administration has been housing approximately 245 human beings at Gitmo, claiming the "evidence" is clear and convincing that these human beings are a threat to society as a whole, for the entire planet, and that in the end, the American Government will prove their guilt and justify their detention.

Um ... maybe not. Per Hilzoy over at The Washington Monthly:

Imagine my surprise, then, when I found the following, on p. 3 note: OMC-P is "Office of Military Commissions -- Prosecutions"; CITF is "Criminal Investigative Task Force"):

"7. It is important to understand that the "case files" compiled at OMC-P or developed by CITF are nothing like the investigation and case files assembled by civilian police agencies and prosecution offices, which typically follow a standardized format, include initial reports of investigation, subsequent reports compiled by investigators, and the like. Similarly, neither OMC-P nor CITF maintained any central repository for case files, any method for cataloguing and storing physical evidence, or any other system for assembling a potential case into a readily intelligible format that is the sine qua non of a successful prosecution. While no experienced prosecutor, much less one who had performed his or her duties in the fog of war, would expect that potential war crimes would be presented, at least initially, in "tidy little packages," at the time I inherited the Jawad case, Mr. Jawad had been in U.S. custody for approximately five years. It seemed reasonable to expect at the very least that after such a lengthy period of time, all available evidence would have been collected, catalogued, systemized, and evaluated thoroughly -- particularly since the suspect had been imprisoned throughout the entire time the case should have been undergoing preparation.

8. Instead, to the shock of my professional sensibilities, I discovered that the evidence, such as it was, remained scattered throughout an incomprehensible labyrinth of databases primarily under the control of CITF, or strewn throughout the prosecution offices in desk drawers, bookcases packed with vaguely-labeled plastic containers, or even simply piled on the tops of desks vacated by prosecutors who had departed the Commissions for other assignments. I further discovered that most physical evidence that had been collected had either disappeared or had been stored in locations that no one with any tenure at, or institutional knowledge of, the Commissions could identify with any degree of specificity or certainty. The state of disarray was so extensive that I later learned, as described below, that crucial physical evidence and other documents relevant to both the prosecution and the defense had been tossed into a locker located at Guantanamo and promptly forgotten. Although it took me a number of months -- so extensive was the lack of any discernable organization, and so difficult was it for me to accept that the US military could have failed so miserably in six years of effort -- I began to entertain my first, developing doubts about the propriety of attempting to prosecute Mr. Jawad without any assurance that through the exercise of due diligence I could collect and organize the evidence in a manner that would meet our common professional obligations."

You cannot prosecute without evidence, and you cannot have evidence without files. It is patently obvious why the Bush Administration dragged their collective feet these past eight years and refused to prosecute the Gitmo detainees. There is no evidence.