This story was co-published with The National Law Journal .
When Judge Henry Kennedy Jr. ordered the release of a Guantánamo Bay detainee last spring, the case appeared to be a routine setback for an Obama administration that has lost a string of such cases.
But there turns out to be nothing ordinary about the habeas case brought by Uthman Abdul Rahim Mohammed Uthman , a Yemeni held without charges for nearly eight years. Uthman, accused by two U.S. administrations of being an al-Qaida fighter and bodyguard for Osama bin Laden, is among 48 detainees  the Obama administration has deemed too dangerous to release but “not feasible for prosecution.”
A day after his March 16 order  was filed on the court’s electronic docket, Kennedy’s opinion vanished. Weeks later, a new ruling  appeared in its place. While it reached the same conclusion, eight pages of material had been removed, including key passages in which Kennedy dismantled the government’s case against Uthman.
In his first opinion, Kennedy wrote that one government witness against Uthman had been diagnosed by military doctors as “psychotic” with a mental condition that made his allegations against other detainees “unreliable.” But the opinion the public sees makes no mention of the man’s health and discounts his testimony only because of its inconsistencies.
The alterations are extensive. Sentences were rewritten. Footnotes that described disputes and discrepancies in the government’s case were deleted. Even the date and circumstances of Uthman’s arrest were changed. In the first version, the judge said Uthman was detained on Dec. 15, 2001, in Pakistan by Pakistani authorities. Rewritten, Kennedy said in the public opinion that Uthman admitted being captured “in late 2001 in the general vicinity of Tora Bora,” the cave complex where bin Laden was thought to be hiding at that time.
The creation of the additional opinion stemmed from a mishap inside the Justice Department: Kennedy’s first opinion was accidentally cleared for public release before government agencies had blacked out all the classified information it cited.
While the government privately took responsibility for the error, it initially refused to correct it. Two people familiar with the discussions said prosecutors in the Justice Department’s Civil Division gave Kennedy a choice: his entire decision would remain classified or he could write a new version that did not reference classified evidence.
Justice Department sources offered a different account. They said the department later relented and gave Kennedy a properly redacted version of the opinion, in which classified material had been blacked out. The sources said this opinion was meant to be published. But for reasons that remain unclear, the edited opinion became the starting point for the creation of an entirely new version.
Matthew Miller, a spokesman with the Justice Department, said “the department’s practice in all of these cases is to propose release of a properly redacted opinion.”
The second opinion, drafted after a contentious exchange between Kennedy and the prosecutors, did not refer to the earlier version and gave no indication material had been removed.
Legal scholars and classification experts said the drafting of a second opinion was a deception. All previous opinions in Guantánamo habeas cases have noted when material has been blacked out or removed to protect security.
Stephen Gillers, who teaches legal ethics at New York University School of Law, said Kennedy may well have had a legitimate concern about “national security issues.”
“But 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,” Gillers said.
ProPublica obtained the original version of Kennedy’s opinion when it appeared briefly in the court record and conducted a line-by-line comparison with what was published five weeks later. That comparison, highlighting information that was removed, can be found here .
Reporting for this story was complicated by the fact that much of the evidence is classified, and judges, lawyers and prosecutors are barred from discussing most aspects of the litigation. But an examination of the opinions and additional documents, as well as interviews with government and intelligence officials, former military prosecutors and key players in the habeas cases, makes it possible for the first time to publicly examine the evidence against a detainee designated for indefinite detention.
To justify Uthman’s incarceration, the government relied on statements from five current or former detainees  who were previously discredited by judges in other cases, questioned by internal Obama administration assessments or found unreliable by military psychiatrists because they were mendacious, mentally ill or subjected to torture.
Kennedy’s first opinion reveals that some of the government’s evidence came from a detainee who committed suicide at Guantánamo three years ago after months of hunger strikes. In the second opinion, the detainee’s name is concealed, making it impossible for the public to know he is dead.
DOJ’s Miller said witness testimony is thoroughly reviewed before it is presented. “In every habeas case where we ask the court to rely upon detainee statements, we do so because we believe courts can and should consider their accounts based on the totality of the evidence,” Miller said.
The Justice Department has appealed Kennedy’s ruling and officials there declined to say what they might do if the government does not prevail.
Uthman, according to senior government officials, is on the secret list of 48 Guantánamo detainees who the Obama administration designated for indefinite detention and, officials said, he is the first of those men to win his habeas petition.
Further complicating matters, Uthman hails from Yemen — a country the White House has deemed too unstable to handle such a transfer. Should he send Uthman home, President Obama risks a fierce political backlash from Republican lawmakers eager to portray the president as weak on terrorism.
Disclosure of the Uthman case comes at a pivotal moment in the government’s complicated efforts to prosecute detainees and close the prison at Guantanamo Bay, Cuba. On Oct. 6, a federal judge in New York barred the government from using its main witness  against a terrorism defendant because the information that led investigators to the witness was obtained through torture.
When Kennedy, who serves on the U.S. District Court for the District of Columbia, ruled in February that Uthman was being improperly detained, his 27-page opinion was turned over to a court security officer for classification review.
The judges themselves have very little insight into the process and no sway over what is redacted. Government security officials review filings in the habeas litigation and other cases involving classified evidence and remove sensitive information.
In the Uthman case, that clearance process took three weeks. Kennedy’s decision was stamped “Redacted,” by the court’s security officer and returned to his chambers on March 16. The deletions were minimal. For the first 16 pages, the only word blacked out was “secret,” stamped at the top and bottom of each page.
Kennedy’s clerk added the document to the electronic court file late in the day. Twenty-five hours later, the security office sent out urgent notices to attorneys and the judge that the opinion had not been ready for release and needed additional deletions. The decision was promptly removed from the public docket.
In a closed hearing in his courtroom four days later, Kennedy lashed out at the government for releasing classified information. He and Justice Department attorneys then argued over what to do, according to three sources familiar with the discussion.
Kennedy insisted that the reasoning behind his first habeas ruling be made public. But the Justice Department resisted releasing it in redacted form, arguing that blacked out portions would call attention to the exact material the government wanted to conceal.
With Uthman slated for indefinite detention, the stakes were high.
During the next month, government lawyers scoured the Internet for the original decision; the legal database Westlaw was asked to remove it from archives; defense attorneys were instructed to destroy their electronic copies.
Even the court docket was altered. When the opinion was originally posted on March 16, the docket noted Kennedy’s grant of the writ of habeas corpus to the petitioner. Today, the entry for March 16 simply reads: “Document Entered In Error Erroneously.”
Kennedy ordered the Justice Department to explain how the information was released and to suggest solutions. In the written response, according to three people who saw it, the department took responsibility for the error. Kennedy rejected the government’s initial attempt to keep the opinion classified, insisting on other options, according to three people with knowledge of the matter.
One Justice Department source said the department relented, gave Kennedy a properly redacted copy of his opinion, and expected him to publish it. But two others said no such intention was conveyed to Kennedy.
Classification experts could not recall another case in which a second decision was secretly created.
“Reconstituting and replacing a judicial opinion without public notice is active deception,” said Steven Aftergood, a classification expert with the Federation of American Scientists in Washington. “There is a role for classification and there are things that need to be redacted, but there is never a justification for deception in the judicial process and that’s what this is,” Aftergood said, after reviewing both versions of Kennedy’s ruling in the Uthman case.
Two senior officials in the Obama administration and two others with direct involvement in habeas cases were surprised to learn that Kennedy’s final opinion was a different version than the original.
Changing the Record
Uthman was 21 years old and traveling with about 30 other men when he was taken into custody by Pakistani police in the town of Parachinar, near the Afghan border. It was Dec. 15, 2001, and U.S. troops were in the middle of a five-day battle against an al-Qaida stronghold known as Tora Bora, where bin Laden was believed to have taken shelter. Parachinar and Tora Bora are 12 miles apart but separated by a treacherous mountain range that takes two to three days to traverse.
The government maintains that Uthman was in Afghanistan to fight for bin Laden; Uthman has claimed he went there to teach the Quran to children. Some facts of his story are not in dispute, some critical ones are. They look different depending on which of Kennedy’s two opinions you read.
Kennedy’s original opinion noted that Uthman was seized in Parachinar; that he reached the town after an eight-day trek from the Afghan town of Khost, nowhere near Tora Bora; and that his journey to Pakistan began around Dec. 8, 2001. Those facts make it difficult to portray Uthman as a fighter in a battle that took place between Dec. 12 and Dec. 17 at Tora Bora. Two footnotes in the original opinion note that the government does not contest that Uthman was taken into custody in Parachinar.
Both were removed in the second opinion and Kennedy substituted wording to write instead that Uthman admitted he was seized “in late 2001 in the general vicinity of Tora Bora, Afghanistan.”
The intent of this editing may have been to conceal the role of the Pakistanis in capturing al-Qaida fighters although those details were long ago declassified. But the effect was to link Uthman more closely to the retreat of bin Laden and his inner circle through Tora Bora.
It is unclear precisely what restrictions or classification requests guided Kennedy’s alterations. Neither the judge nor the Justice Department would say.
Gillers said such editing has an effect on public opinion, even when it doesn’t change the outcome of the case.
“The ability to influence Kennedy’s opinion gives the government a public relations advantage,” Gillers said. “These battles are fought outside the court system as well as within it.”
Another advantage has been the government’s ability to largely conceal the identities of its witnesses.
In ordinary federal proceedings, from mob cases to white-collar crime, prosecutors would be loath to attempt such strategies because repeated use of a discredited witness would provide a significant opening to defense attorneys. In the habeas cases, it is difficult for defense lawyers and judges to learn of the roles played by flawed witnesses in previous cases.
The issue arose in a separate habeas case in May 2009, when Judge Gladys Kessler of the U.S. District Court for the District of Columbia noted that a government witness had been diagnosed by Guantánamo medical staff as suffering from “psychosis.” In a footnote, she said she was troubled that the diagnosis had come to her attention “through the diligent work” of the defense attorney “and not as a result of the government’s obligation to provide” it.
Attorneys with security clearances can access classified information the government plans to raise in court at a secure facility near the Pentagon. But the material is not easy to use.
The facility is staffed by court security officers and Justice Department officials who determine what information the lawyers can remove from the facility, including, in some cases, their own notes. No classified information can be shared over the telephone or Internet, a significant burden for lawyers who reside outside the Washington area.
“It’s monumentally difficult to fight these battles when the government holds all the cards,” said David Remes, one of the attorneys representing Uthman. Neither Remes nor Uthman’s other Washington attorneys, including William Livingston at Covington & Burling, would discuss the details of the Uthman case.
Near Total Secrecy
Although President Obama inherited many aspects of U.S. detention policy from his predecessor, Guantánamo detainees have been fighting their detentions in the U.S. District Court for the District of Columbia almost entirely on his watch.
The U.S. Supreme Court ruled in June 2008, as Obama was campaigning for president, that detainees could challenge their detentions in federal court under the constitutional doctrine of habeas corpus, which protects individuals from unlawful imprisonment by the government.
Obama, still a senator then, issued a statement calling the ruling “an important step toward re-establishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy.” The first challenges were decided on Nov. 20, just three weeks after Obama’s election.
Lawyers from the Justice Department’s Civil Division handle the Guantánamo litigation in coordination with intelligence agencies and the Department of Defense, which acts as warden of Guantánamo. The litigation process was built around the government’s assertion that the bulk of the evidence is classified, a claim that has enabled the government to operate under a cloak of near total secrecy, with judges and defense attorneys barred from publicly discussing most aspects of the litigation. Court filings that reveal details about the cases undergo classification review before they are made public.
Intelligence and military officials take the lead in determining what can be released. As this story was going to publication, the Justice Department released an unclassified version of its appeal brief  in the Uthman case. A number of details that were excised from Kennedy’s final opinion appear in the appeals brief.
Justice Department spokesman Miller said, “as a general matter, Justice Department litigators are not responsible for classification or declassification decisions in habeas cases.”
Officials at other agencies said they had a fairly free hand in removing information supplied for the government’s case. “Whenever a court security officer identifies a document slated for posting on the court’s public docket as potentially containing classified information, the officer refers that document to appropriate agencies for classification review,” Maj. Tanya Bradsher, a spokeswoman for the Pentagon, said.
One government official who spoke on the condition of anonymity acknowledged that the classification process has been plagued with inconsistencies and that no one is coordinating the effort. In most declassified habeas filings, the names of all detainee-witnesses are removed; in others, a name or two slips past the redaction process.
Some government-ordered deletions clearly appear designed to conceal names of confidential informants, associations with foreign intelligence services and the identities of certain federal agents. But the Uthman case shows that many of the deletions go further.
“This censorship has nothing to do with protecting ‘national security’ and everything to do with covering up government mistakes and malfeasance,” said Jonathan Hafetz, a professor at Seton Hall University School of Law who has represented a number of detainees in habeas litigation. The practice, he said, allows the government to “mislead the American public on issues of profound importance to the country by skewing the perception of who really is at Guantánamo.”
There have been some attempts, but with limited results, to make more of the habeas proceedings public. Nearly two years ago, as the litigation was getting under way, three media organizations — The Associated Press, The New York Times and USA Today — sought access to the court filings in which the government argued for holding the detainees.
The government fought the request but Judge Thomas Hogan, then the chief judge of the U.S. district court in Washington, ordered the government to release redacted, unclassified versions of its filings within 14 days .
David Schulz, a First Amendment attorney who is representing the media group, said the government is flouting Hogan’s order.
“The frustrating thing about this litigation is that the judge in no uncertain terms upheld the public’s constitutional right to inspect the records of the habeas proceeding and yet, nearly two years after the documents were supposed to be filed and publicly available, we are still waiting to get properly redacted filings,” Schulz said.
The government is now seeking to amend Hogan’s order to include six new broad categories of information that it can restrict without review by a judge unless the detainee objects. Schulz has opposed this idea . Both sides are waiting to hear from Hogan.
When the media group first fought for access, just weeks after the 2008 presidential election, the Bush administration was still in office. But Schulz said the election has had no impact on the department’s position in this area.
Said Schulz: “The Obama Justice Department has fought as hard and resisted as strongly the right that the public has to see these court records.”
Update April 25, 2011: On Sunday night, a number of news outlets and WikiLeaks published a trove of classified documents  on detainees at Guantanamo Bay. ProPublica has been reporting on Gitmo  and the issues surrounding indefinite detention for more than two years. In October 2010, Dafna Linzer revealed how the Obama administration censored one federal judge’s Gitmo decision  that had questioned the government’s evidence against a detainee.
Hundreds of readers at ProPublica and Slate  responded to a recent piece I wrote about the U.S. citizenship test and how some answers were wrong or incomplete . Some readers shared stories of their own journeys toward citizenship. Others wrote about helping their parents or spouses become U.S. citizens. And some readers flagged what they see as additional, problematic or sometimes humorous questions in the test.
Steven Lubet , a law professor at Northwestern University, pointed out Question 87: Name one American Indian tribe in the United States. Among the correct answers is “Inuit.”
“Although they are Native Americans, the Inuit are not Indians, they do not consider themselves a tribe, and they live in Canada, not the United States,” Lubet wrote. “Their relatives in Alaska typically call themselves Inupiak or Yupik, and they are not mentioned in the model answer to question 87.”
Lubet was an early fact-checker of the test when it was in the pilot phase. He found problems with 19 questions  and wrote about them then for Salon.
A number of immigration lawyers wrote that they had been complaining about the current test since it was introduced in late 2008.
Paul Good, an immigration lawyer from Virginia, took tongue-and-cheek issue with Question 78: Name one war fought by the United States in the 1900s. Among the correct answers are Korean War, Vietnam War and (Persian) Gulf War. Good noted that the last time Congress declared war during the 20th century was December, 1941. “Since only Congress, according to the Constitution, can declare war we have been free of war since the end of WWII. At least Truman was aware of the problem since he titled the Korea War a ‘Police Action’.”
Of course, few would dispute that those U.S. military engagements were in fact wars.
Readers went back and forth with regards to the flag and whether the 13 stripes represent 13 original states or the 13 original colonies. The current test says the stripes represent the colonies. I wrote  that they represent the states. The dispute touched off a history hunt for readers.
Perhaps folks at the U.S. Citizenship and Immigration Services, which administers the test, could hunt a bit more too. Question 7 on the citizenship test  that was in circulation through the summer of 2008, asked applicants:
What do the stripes on the flag mean? Official Answer: “They represent the original 13 states.”
The flag was adopted in 1777, nearly a year after the Declaration of Independence by the “13 united states of America.” The Flag Act of 1777 doesn’t specify what the stripes and stars represent—just that there are 13 of both. When Vermont and Kentucky later joined the union, two additional stripes and two additional stars were added to the flag and later removed.
A lot of people questioned whether the vice president is elected, and a number of commenters feel that he ought to be in the president’s Cabinet no matter what.
The story fueled intense debates on legal blogs  and comments from immigration advocates.
Some wondered how U.S.-born citizens would fare on the test. Judging from the responses, I would say many would do very well.
A friend at the State Department shared a favorite “citizenship” quote dating back to Appomattox . Robert E. Lee had just surrendered. There was an awkward moment. Lee realized that Col. Ely Parker, Ulysses S. Grant’s military aide, who was present in the room, was a Native American. Lee was said to have remarked: “I’m glad to see one real American here.” Parker reportedly replied: “We are all Americans, sir.”
For the English proficiency exam, several readers note that they were given the same sentence for their test that I was given: “Columbus Day is in October.” June Thomas, an editor at Slate, was asked to choose her own sentence when she took the test. “My country ’tis of thee, sweet land of liberty, of thee I sing,” she wrote. “Then I worried that those old-timey words would seem like typos,” she recalled. Fortunately, it all worked out.
Farhad Manjoo, who writes the technology column  for Slate, shared his own experience. “It’s impossible not to cry when you’re being sworn in,” he told readers. “I was a college student, didn’t think I’d be moved by it, but the emotion was sudden and powerful. It’s an amazing thing to feel like you’re accepted in this amazing place.”
Not all ceremonies are alike. I wrote about the moving video message from President Obama that was played at my swearing-in ceremony. That message is played at all USCIS ceremonies. A reader noted that at ceremonies in federal district courts, however, the video is not always played. Indeed, a Slate reader noted that it was not played when her husband was sworn in at a recent ceremony in Baltimore.
Most readers who wrote to me or commented online said they were tickled and then moved by the story. I, in turn, have been moved by their responses. The only swearing-in ceremony that some readers had seen occurred during an episode of “The Simpsons” when Apu took the test . Some said they were now inspired to attend a swearing-in ceremony.
My swearing-in, known as an “administrative ceremony,” was a simple affair in a federal building. But USCIS hosts some truly grand ceremonies across the country in spectacular settings. There have been ceremonies at the base of the Statue of Liberty on the 4th of July, at Fenway Park and at the Lincoln Memorial, at Mount Rushmore and Disneyworld, Martin Luther King Jr. Memorial Library in Washington and the White House Rose Garden. Ceremonies are open to the public, but few are advertised. USCIS does post information on its website  for ceremonies held on July 4th and on Constitution Day.
In an interview about the story with Southern California Public Radio station KPCC, host Madeleine Brand asked  me what the experience had taught me about the United States.
I told her of a friend’s reaction to the story. “This is classic democracy,” he said. America is a country where you can have lots of different answers, right answers and wrong answers. In a dictatorship, there may only be one.
A similar sentiment was echoed by another Slate reader: “There is always room for discussion in America. That is truly what our Founding Fathers believed. Welcome to the discussion!”
Last month, I became an American citizen, a tremendous honor and no easy accomplishment, even for a Canadian. After living here for 12 years, I thought I knew everything. Then I learned how we mint Americans .
After years of steep filing fees and paperwork (including one letter from Homeland Security claiming that my fingerprints had “expired”), it all came down to a test. I passed, and, my fellow Americans, you could, too — if you don’t mind providing answers that you know are wrong.
Friends told me I didn’t need to study, the questions weren’t that hard. But I wanted to and so for months I lugged around a set of government-issued flashcards , hoping to master the test. I pestered my family and friends to quiz me. Sometimes I quizzed my sources. I learned things (there are 27 amendments to the Constitution) and they learned things (there are 27 amendments to the Constitution). But then we began noticing errors in a number of the questions and answers.
Take Question 36. It asks applicants to name two members of the president’s Cabinet. Among the correct answers is “Vice President.” The vice president is a cabinet-level officer but he’s not a Cabinet member. Cabinet members are unelected heads of executive departments , such as the Defense Department, or the State Department.
The official naturalization test booklet even hints as much: “The president may appoint other government officials to the cabinet but no elected official may serve on the cabinet while in office.” Note to Homeland Security: The vice president is elected.
Still, a wonderful press officer in the New York immigration office noted that the White House’s own website  lists the vice president as a member of the Cabinet. It’s still wrong, I explained. I told her that my partner wrote an entire book about the vice president and won a Pulitzer Prize  for the stories. I was pretty sure about this one. A parade of constitutional scholars backed me up.
In fact, the Constitution aligns the vice president more closely with the legislative branch as president of the Senate. Not until well into the 20th century did the vice president even attend Cabinet meetings.
Then there is Question 12: What is the “rule of law”?
I showed it to lawyers and law professors. They were stumped.
There are four acceptable answers: “Everyone must follow the law”; “Leaders must obey the law”; “Government must obey the law”; “No one is above the law.”
Judge Richard Posner, the constitutional scholar who serves on the U.S. Court of Appeals in Chicago, was unhappy. “These are all incorrect,” he wrote me. “The rule of law means that judges decide cases ‘without respect of persons,’ that is, without considering the social status, attractiveness, etc. of the parties or their lawyers.”
So, where do these questions come from?
U.S. Citizenship and Immigration Services , a department within Homeland Security, spent six years consulting scholars, educators, and historians before the current test was introduced in 2008. The result: 100 questions and answers designed to provide an in-depth treatment of U.S. history and government.
“The goal of the naturalization test is to ensure America’s newest citizens have mastered a basic knowledge of U.S. history and have a solid foundation to continue to expand their understanding as they embark on life as U.S. citizens,” said Christopher Bentley, a spokesman for USCIS.
During the citizenship interview, applicants are asked a randomly selected 10 questions from the test and must answer six correctly. In addition to the questions, there is a reading and writing test for English proficiency.
My immigration lawyer accompanied me to my interview. In the security line, I told her I was bothered by Question 16: Who makes the federal laws?
Each of the three possible answers, it seemed, was incomplete. The official answers were: “Congress”; “Senate and House (of representatives)”; “(U.S. or national) legislature.” I’m not a lawyer but even Canadians watched Schoolhouse Rock . Where, I wondered, was the president, whose signature is what makes a bill into a law?
My lawyer sighed, she agreed. But: “If you get asked that question, just give the official answer,” she said. I didn’t get that question.
I also wasn’t asked Question 1: “What is the supreme law of the land?”
The official answer: “the Constitution.” A friend and legal scholar was aghast. That answer, he said, is “no more than one-third correct.” He’s right.
Article VI, clause 2 in the Constitution, known as the Supremacy Clause , explicitly says that three things — the Constitution, federal laws, and treaties — together “shall be the supreme law of the land.”
Question 96 asks: Why does the flag have 13 stripes? The official answer: “because there were 13 original colonies.” In fact, the flag has 13 stripes for the 13 original states.
Many of the test questions, organized under topics such as “system of government,” “geography,” and “American history” are correct and informative. Since I’m a reporter, one tugged at my heart.
Question 55 asks: What are two ways that Americans can participate in their democracy? Among the correct answers: “write to a newspaper.”
At my interview, I was asked questions on presidential succession, the Cabinet, Senate terms, and the Supreme Court. I was asked to name a branch of government. (I went with the executive.)
I was asked Question 8: What did the Declaration of Independence do?
Heeding my lawyer’s advice, I went with the official answer: “declared our independence.”
I answered six consecutive questions correctly and moved on to the language section of the exam. Native English speakers are not exempt from this section and I was asked to read aloud the following sentence: “Columbus Day is in October.”
I was then asked to write a sentence in English. Remarkably, it was the same sentence: “Columbus Day is in October.”
Next, I reaffirmed answers I had given on my citizenship application .
Was I a member of the Communist Party? Was I member of a totalitarian party? Am I a terrorist? Although I was born in 1970, I was asked: Between March 23, 1933 and May 8, 1945, did I work for or associate in any way with the Nazi government of Germany? Had I worked at a concentration camp?
The officer who interviewed me, Sandy Saint Louis, had to ask me the questions. But she didn’t even look up or wait for my responses. She checked off “No” after each one.
She did pay attention when she asked whether I was a habitual drunkard, a polygamist, a drug-smuggler, a felon, a tax-evader.
My paperwork was in order, my background check was complete. When the interview was over, Saint Louis pressed a large wooden seal into a red ink pad and stamped “approved” across my application. A wave of relief washed over me and my lawyer shot me a sweet smile. Ten days later, when I returned for the swearing-in, a brief and final questionnaire asked if I had engaged in prostitution since the interview. I checked “No.”
On Friday, Jan. 28, accompanied by my family, I was among 160 citizens-in-waiting who filed into a 3rd floor auditorium in lower Manhattan to be sworn in as Americans. On our seats were an American flag, a copy of the Constitution, a booklet featuring the stories of prominent naturalized Americans, and a welcome letter from President Obama.
Reading the letter, I began to cry. I had spent more than one-quarter of my life hoping to become American, and I was suddenly overwhelmed by the honor and the significance of the moment. The place I have called home for 12 years was finally claiming me as well.
I looked around the room and saw other fortunate souls with long journeys now behind them, quietly weeping with joy.
An immigration official asked us all to stand, and to remain standing, when the name of our country of origin was called out. After he read through the names of 44 countries, we were all standing, waving our flags.
Together, we took the Oath of Allegiance and were then seated as citizens of one nation.
Everyone in the room that day had scored a perfect 100 percent on the test and, for fun, an official decided to test us all once more. Who wrote “The Star Spangled Banner”? he asked. Only a few called out “Francis Scott Key,” perhaps because that question is no longer on the test. It was prominently removed four years ago. 
A newly sworn-in citizen led us in the Pledge of Allegiance. We sang the national anthem and then watched a video message  from the president shown at every swearing-in ceremony across the country.
“It’s an honor and a privilege to call you a fellow citizen of the United States of America,” Obama told us. “This is now officially your country.”
There were more tears. At the end of the hour, we received certificates of naturalization and were given instructions on how to obtain U.S. passports.
My family and I left soon afterward. It was 10:30 a.m. and cold outside. We took the subway uptown. Three children got off at three different stops, headed to their schools or the library. We took the youngest up to his school. He walked in clutching his American flag and announced proudly to his teachers that “Mommy is American.”
At a party that evening, I displayed the letter from Obama and laid out the flashcards. Over Sam Adams beer and mini-burgers, I spoke about the ceremony and test. The host led us all in the Pledge of Allegiance, my second of the day. Looking around the room, I realized that a significant number of my friends are journalists, writers, academics, and lawyers. It’s a nitpicky crowd and during three hours of celebration they noticed additional errors in the questions.
At the end of the night, one of the catering staff gathered up the flash cards and as she held them out to me, she revealed that next month she too will take her citizenship test. I was thrilled. I closed my first day as an American citizen by handing them over to her. “Which ones did you say were wrong again?” she asked. “Just give the official answer,” I said, “and you’ll do fine.”
You can follow Dafna at @dafnalinzer .
President Obama, under pressure from supporters and opponents alike, issued a statement  late Friday objecting to legislative provisions that severely limit his ability to transfer detainees from Guantanamo, but stopped short of challenging their constitutionality.
Without such an objection, the statement, though strongly worded, amounts to little more than a complaint. Still, it helps the president to avoid a potential fight with a new Congress over Guantanamo.
The provisions were included in a law funding the military through September. Shortly after signing the legislation, the president released a statement saying his administration would “work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.”
House Republicans have said they plan to put the restrictions in additional legislation.
The legislation contains provisions that would limit Obama’s ability to move Guantanamo detainees to the United States, either for prosecution or for continued imprisonment. It also will make it difficult to transfer detainees to other countries. Congressional Republicans have made a ban on such transfers a goal.
Some of Obama’s advisers had pushed for a broad repudiation  of the provisions, claiming they constituted undue infringement on the president’s right to prosecutorial discretion. But White House lawyers disagreed. Obama could have vetoed the bill, but said he chose to sign it, despite his strong objections, “because of the importance of authorizing appropriations for, among other things, our military activities in 2011.”
For supporters of Obama’s pledge to close Guantanamo, this was a moment to watch. His response to the provisions, many argued, would test his commitment  to a policy that has come under assault.
If the president accepts the provisions as a total ban on transferring out detainees, “then he is letting Congress roll him on a priority issue,” said Chris Anders of the American Civil Liberties Union. “And once you get rolled, you will get rolled over and over again. I think it will make his job extraordinary difficult for the rest of this Congress.”
The ACLU interpreted Obama’s statement favorably, but there were critics, too.
David Remes, a Washington lawyer who represents a number of detainees, said, “Obama should have issued no statement rather than this one, which is a confession of impotence” with regards to implementing his policies.
Benjamin Wittes of the Brookings Institution said the statement was so weak that it “borders on the trivial.”
“It not only fails to make a constitutional objection, it does not interpret the provision. All it does is complain,” he said.
To the president’s opponents, any effort to skirt the provisions would likely be seen as provocative.
Kentucky Republican Hal Rogers, the incoming chairman of the House Appropriations Committee, said in a radio interview  yesterday that the provisions in the pending defense spending legislation were designed to “prevent any detainee at Guantanamo from being brought to this country for any purpose.”
Rogers said the same provision would appear in a continuing resolution or omnibus spending package to fund the rest of the government through 2011. Guantanamo, however, will be fully funded, he said, ensuring that it remains open.
Obama administration officials say they plan to reject Congressional efforts to limit the president’s options on Guantanamo, setting the stage for a confrontation between the president and the new Congress on an issue that has been politically divisive since Inauguration Day.
The Guantanamo provisions, which include limits on where and how prisoners can be tried, were attached to a spending bill for military pay and benefits approved by Congress late last year. Some Administration officials are recommending that President Obama sign the spending bill and then issue a “signing statement” challenging at least some of the Guantanamo provisions as intrusions on his constitutional authority. Others have recommended that he express opposition to the Guantanamo sections without addressing their constitutionality.
The statement, officials said, would likely be released along with a new executive order that outlined review procedures for some — but not all — of the 174 Guantanamo prisoners still held without charge or trial.
Obama has used signing statements in the past, but this one would carry political significance as the first test of his relationship with a Congress in which the House is firmly in Republican control.
Officials said the White House is still weighing how to calibrate the signing statement. A statement rejecting all of the bill’s Guantanamo provisions would almost certainly be viewed as provocative by Congressional Republicans and some Democrats. But administration officials view the provisions as clear encroachments on the president’s right to prosecutorial discretion and some are pushing for their blanket repudiation.
The reliance on detention orders and a signing statement — tools used repeatedly by former President Bush, who built Guantanamo nearly a decade ago — is seen by Obama’s advisers as among the few options left for an administration that has watched the steady erosion of its first White House pledge nearly two years ago: to close the prison.
“There is obviously an irony here,” said one Obama administration official, “but if we resort to this, it is to close Guantanamo, not keep it open.”
While the signing statement and the executive order would leave some room for Obama, they would do little to bring his policy goals to fruition. Over the last two years, Congress and the administration, working separately and in conflict, have woven together a complicated set of categories, policies and restrictions that make it difficult, if not impossible, to close Guantanamo.
What the White House once saw as bipartisan support for shuttering the prison soon became a bipartisan effort to thwart the administration’s plans.
The spending measure effectively bars the president from prosecuting any detainees in federal court or conducting military commission trials on U.S. soil. The bill makes it increasingly difficult to transfer detainees to foreign countries, even if the administration deems them safe to release. And it complicates the review process Obama plans in the executive order for nearly 50 detainees the administration has designated as too dangerous to free.
A small circle of policymakers and lawyers from the White House, the Justice Department and State Department spent the closing hours of 2010 considering drafts for a statement. A number of administration officials who discussed the internal deliberations declined to be identified because they were not authorized to speak on this subject.
They said the statement could amount to a presidential intent to disregard some, but not all, of the provisions relating to Guantanamo detainees. Under consideration are claims that the provisions amount to “undue infringement” on the president’s authority to exercise prosecutorial discretion, or that they are viewed by the White House as an “unnecessary and unwarranted intrusion,” on that power.
Several advisers were pushing for a broader statement that would also take issue with provisions related to detainee transfers. Obama has twice issued signing statements claiming that legislative provisions interfered with his constitutional authority to conduct foreign relations and could do so again. But there is some concern that the White House is on less firm ground in that area. The bill, while making future transfers difficult, does not ban them outright.
“There is an honest debate right now, centered primarily inside the White House Counsel’s office, and among a number of top staff,” said one official who spoke on the condition of anonymity. “The question is: Can we work with some of this stuff and, if not, how sharply do we make that point.”
The president could veto the spending bill. But officials said the White House will not block legislation on military pay and benefits, especially after the military’s support for repealing “Don’t Ask, Don’t Tell,” legislation in December. Spokesmen at the White House and the National Security Council did not respond to requests for comment.
The White House has, until now, balked at confrontation even as it watched its policy options dwindle. Not one administration official who spoke about the internal deliberations could say for sure whether the White House, in moving to protect the right to prosecute detainees in federal court, would in fact use it.
“All presidents want to preserve maneuverability and authority, that is natural,” said Elisa Massimino, president of the civil rights organization Human Rights First. “But President Obama has had the authority to move prisoners to the United States, he’s done the background work to identify people to bring to justice and he’s squandered the opportunities to exercise that authority. It is striking to now see a fiercer desire to preserve authority than to use it,” she said.
In a May 2009 speech at the National Archives, Obama laid out a pathway for dealing with the 240 detainees then held at Guantanamo .
A small number would be confined indefinitely without charge or trial, but the great majority would have their status resolved by civilian or military trials or outright release. Two years later, there is no clarity on any of those tracks. No formal charges have been brought against the three dozen men designated for eventual trial. Others long cleared to return home languish in custody in part because of the administration’s self-imposed moratorium on transfers to Yemen.
In effect, detainees face indefinite prosecution, and indefinite release — concepts unknown before Obama’s presidency. In the interim, the number of Guantanamo inmates designated for open-ended detention has grown while the number who await trial has declined.
An executive order would deal in part with some of those cases. Currently, the draft order would provide a full review process for the 48 detainees in the indefinite detention category — suspects the administration will not charge nor free. Those detainees would have access to lawyers and could challenge their detention and some of the evidence against them. The order also envisions a review of potential prosecution cases to determine which are still viable and in what setting. But the detainees in that category and those in all other categories have no way to challenge those determinations.
“If the executive order only applies to the 48 detainees that the administration says they are detaining indefinitely, then that is a failure to acknowledge reality,” said Laura Pitter, a lawyer with Human Rights Watch. “There are 174 detainees still at Guantanamo and whether the administration says they will be tried, detained or released, they are in fact indefinitely detained and have been for a long time.” Human Rights Watch, along with other civil rights groups, opposes indefinite detention. “The administration needs to either prosecute them or release them,” Pitter said.
The bill makes both of those options more difficult and complicates the aims of the executive order.
Under the terms of the order, an administrative board would meet periodically to evaluate detainees case by case. The board could, in theory, approve the release of a detainee at any time. But language in the defense spending bill allows for the direct release of a detainee only through a court order. For all other releases, the administration would need to seek waivers and in some cases, additional certifications, the terms of which would not likely be achievable.
As a result, the executive order review would be rendered meaningless for nearly all but a small handful of the detainees. Some officials said there have been ongoing efforts to redraft elements of the order, alongside the signing statement, to create a process consistent with the spending bill provisions. But it has been a difficult task.
The bill is most at odds with the administration’s longstanding intent to prosecute detainees accused of committing crimes. Its provisions prevent any detainees from being transferred to the United States for any reason, language that effectively kills plans for trials on U.S. soil.
It is this provision that first raised the ire of the administration. In a sharply worded letter to Congressional leaders before the bill was passed, Attorney General Eric Holder wrote that limiting the Justice Department’s options for federal court prosecutions was “an extreme and risky encroachment on the authority of the Executive branch to determine when and where to prosecute terrorist suspects.” Holder specifically noted the president’s authority to exercise “prosecutorial discretion.”
If the bill were signed without challenge, the remaining prosecutorial option left for the administration would be to charge detainees in military commissions at Guantanamo, with those convicted serving time at the facility. So far, the administration has been unwilling to bring new charges in that setting.
“The bill,” said one administration official, “undermines the principles outlined in the president’s archives speech and there is no way to pretend you are closing Guantanamo if that law goes through unchallenged.”
The bill is also likely to unravel the only working leg of the administration’s Guantanamo effort: transfers of some detainees home or to third countries. Mostly with the help of European allies, the State Department has transferred or resettled 66 detainees, roughly one-quarter of the detention facility’s population when Obama came into office. That program is still completing transfers or returns for another 30, non-Yemeni detainees.
While the bill does not prevent future transfers outright, it determines that the secretary of defense, and to some extent, the secretary of state, must ensure that any released individual cannot engage in activity harmful to the United States. Administration officials said the wording makes it all but impossible to carry out additional transfers.
A recent U.S. intelligence assessment said that five detainees released during Obama’s presidency have engaged in or are suspected of engaging in terrorist or insurgent activity. During the Bush administration, more than 500 prisoners were released and the recent report by the Director of National Intelligence said as many as 150 of those former detainees have engaged in or are suspected of participating in efforts to harm the United States.
Obama has issued a number of signing statements taking issue with more than a dozen legislative provisions and has come under some criticism for it from both Republicans and Democrats. Shortly after he took office, Obama promised to use them with less frequency than former President Bush, noting in a presidential memorandum in March 2009: “I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded.”
Bush established Guantanamo through executive order and issued over 150 signing statements, more than any other president. The practice was especially controversial when Bush applied it to legislation dealing with detainee treatment.
The American Bar Association issued a report in 2006 that called signing statements “contrary to the rule of law and our constitutional separation of powers.” The report was signed by a number of legal scholars including Harold Koh, who was then dean at Yale Law School and is today the top lawyer at the State Department and one of several advisers involved in the administration’s Guantanamo policy.
The White House is preparing an Executive Order on indefinite detention that will provide periodic reviews of evidence against dozens of prisoners held at Guantanamo Bay, according to several administration officials.
The draft order, a version of which was first considered nearly 18 months ago, is expected to be signed by President Obama early in the New Year. The order allows for the possibility that detainees from countries like Yemen might be released if circumstances there change.
But the order establishes indefinite detention as a long-term Obama administration policy and makes clear that the White House alone will manage a review process for those it chooses to hold without charge or trial.
Nearly two years after Obama’s pledge to close the prison at Guantanamo, more inmates there are formally facing the prospect of lifelong detention and fewer are facing charges than the day Obama was elected.
That is in part because Congress has made it difficult to move detainees to the United States for trial. But it also stems from the president’s embrace of indefinite detention and his assertion that the congressional authorization for military force, passed after the 2001 terrorist attacks, allows for such detention.
After taking office, the Obama administration reviewed the detainee population at Guantanamo Bay and chose 48 prisoners for indefinite detention. Officials, who spoke on the condition of anonymity, said that number will likely increase in coming months as some detainees are moved from a transfer category to a continued detention category.
If signed by President Obama, the new order will provide added review for detainees designated for long-term detention. The order, which is being drafted jointly by White House staff in the National Security council and the White House counsel, will offer detainees in this category a minimal review every six months and then a more lengthy annual review. Detainees will have access to an attorney, to some evidence against them and the ability to challenge their continued detention.
Prisoners who have been deemed “high-value detainees,” including the alleged conspirators of the 2001 attacks, have been designated for prosecution in civilian or military courts.
“It’s been clear for a while that the government would need to put in place some sort of periodic review, and that it would want it to improve on the annual review procedures used during the previous administration,” said Matthew Waxman, a professor at Columbia Law School who worked on detainee issues during the Bush administration.
A White House official, who asked to speak on the condition of anonymity, later confirmed that the draft order has not yet been given to the president. The official had few details but said the order “would set up periodic review of the detention status of those detainees who cannot be tried,” in either military commissions or federal courts.
In 2008, Guantanamo detainees won the right to challenge the lawfulness of their detention in court. The executive order aims to create an executive branch review which would occur separately from the court review and would weigh the necessity of the detention, rather than its lawfulness, officials said.
“Perhaps the dangerousness of the detainee’s country of origin could change, or the group that the detainee is affiliated with could cease to exist,” one official explained.
Some detainees from Yemen may be sent home if security conditions there improve. Currently, there is a moratorium on transfers from Guantanamo to Yemen.
The official described the draft order as “an important piece of the government’s approach to Guantanamo.”
At a speech on Guantanamo in May 2009, Obama said that “a thorough process of periodic review,” was needed to ensure that “any prolonged detention is carefully evaluated and justified.”
The White House first began work on an Executive Order in the spring of 2009 that was the subject of a joint story by ProPublica and the Washington Post  in June 2009. An administration official at the time said the order was under consideration but had not yet been completed. Civil rights groups which oppose indefinite detention came out strongly against the possibility of an executive order.
Weeks later, administration officials said the White House had decided to work with Congress on indefinite detention, rather than through Executive Order. But by the end of 2009, the White House had said it would not support legislation.
Then, in 2010, a government task force on Guantanamo completed a year-long review that placed 48 detainees in long-term detention. In its report, task force members said those detainees would be “subject to periodic Executive Branch review.”
Bobby Chesney, a law professor at the University of Texas who worked briefly on the administration’s detention task force, said an executive order would provide detainees which an additional layer of review. He also said it offered a compromise since an executive order can be withdrawn at anytime.
“The order takes on additional restraints and lasts as long as the president wants. The White House gets just what it wants, no more or less. And, unlike with legislation, the order doesn’t have staying power if the next administration doesn’t want it.”
Jameel Jaffer, a national security lawyer at the American Civil Liberties Association, agreed that “more review is better.” But he said that an executive order would only “normalize and institutionalize indefinite detention and other policies,” that were set in place by the Bush administration.