Court decisions tend to be comprised of two parts, findings of fact and conclusions of law.  They are, in the best of circumstances, related.  They should be, in all circumstances, reasonably accurate.  This may be a quaint notion.  Via Pro Publica, the decision in the habeas petition of Gitmo detainee, Uthman Abdul Rahim Mohammed Uthman, is otherwise.

District Judge Henry Kennedy, Jr. granted Uthman’s petition and ordered him released.  It turns out the government’s claim against him was complete crap.  What a surprise.  But the order itself became the problem.

A day after his March 16 order was filed on the court’s electronic docket, Kennedy’s opinion vanished. Weeks later, a new ruling [5] 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.

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.

In opinions dealing with “national security” issues, such as detainees, judicial opinions are subject to review to make sure they don’t reveal secrets.  After all, imagine the havoc the terrorists could wreak if they knew the date in 2001 when Uthman was seized.  Judge Kennedy’s decision was vetted, supposedly redacted by cover all the stuff that could destroy the fabric of society, and released.  Later that day, somebody decided that it hadn’t been sufficiently redacted, and it was pulled.

Instead of the blacking out process one would expect, no matter how silly it often turns out to be or how ludicrous the concerns over revelations like mentioning the “general vicinity of Tora Bora,” because bin Laden didn’t know the name of the place where we thought he was hiding a decade ago, this is what our government spends its time doing to protect us from the next attack.

This time, the results were different.  Instead, a second opinion appeared, making no mention of either the initial opinion or the materials deleted.  Instead, it was just a made-up decision.

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.

The law relies heavily on precedent, looking to past decisions so that we can determine what is lawful going forward and how the law will apply to similar circumstances.  This becomes particularly difficult when the contents of decisions are fiction.

Gillers is absolutely correct, and it’s outrageous that a decision issued that essentially created a false scenario.  It’s one thing for the court to write that it can’t reveal salient details.  Frankly, that’s bad, as it makes it impossible to ascertain the extent to which the government’s actions were wrong.  We don’t do secret courts here.  At least, we’re not supposed to.

But to fabricate facts in order to conceal the truth is absolutely mind-boggling.  At least when the decision states that facts are concealed, whether rightly or wrongly, we know they are concealed.  The creation of a “parallel universe” in a judicial decision reduces the decision to a farce.  It deliberately puts a fiction out there as truth.  It actively misleads.  It lies.

Under the banner of national security, apparently anything goes.  No longer can we count on reading the findings of fact in a court decision of any meager controversy and believe it accurate.  We won’t be told when the facts are fiction; the parallel universe will look the same as any other court decision.  But for the quirk in this case that brought the manufacture of a parallel universe to light, no one would have ever known.

Maybe there really is a Fringe Division in our government, except it’s in the judicial branch rather than the executive.  That a judge acquiesced in this, actively did this, is simply shocking.  If the facts are so sensitive that they can’t be revealed, then don’t reveal them.  But never should a judge write fiction and call it a decision.