Leaking the Guatánamo prisoner names: How and why a former Navy lawyer took such a huge risk

"Could I live with myself for the rest of my life knowing who knows how this would turn out?" Matt Diaz said

Published November 11, 2019 2:00PM (EST)

The main gate at the prison in Guantanamo at the U.S. Guantanamo Naval Base on October 16, 2018. (Sylvie Lanteaume/AFP via Getty Images)
The main gate at the prison in Guantanamo at the U.S. Guantanamo Naval Base on October 16, 2018. (Sylvie Lanteaume/AFP via Getty Images)

Excerpted from "A Place Outside the Law: Forgotten Voices from Guantánamo" by Peter Jan Honigsberg. Copyright 2019. Excerpted with permission by Beacon Press.

After the attacks on 9/11, Mohamedou Ould Slahi was seized by the Mauritanian secret police at his family’s home. The police told the family that Slahi was in a safe place. The family presumed this meant that he was in a police station in Mauritania. But he was not. Slahi was in Guantánamo.

His family was fortunate. They learned of Slahi’s fate through an article on Guantánamo in the German magazine Der Spiegel. Slahi’s brother, who was living in Germany, had seen the article.

Other families were not as fortunate. Many families had heard nothing from their loved ones after the U.S. bombing of Afghanistan following the 9/11 attacks. The families thought that their husbands, sons, and fathers had been killed in the bombings. But many of the men had not died. They had been captured by Afghan and Pakistani soldiers and sold for bounty to the Americans. Then they were disappeared into Guantánamo.

Because the U.S. refused to release the names of its prisoners, many families did not know the fate of their loved ones. It was not until May 2006—more than four years after the first 20 detainees were transferred to Guantánamo in January 2002—that the US officially released the names of the detainees. And it is possible that the government would not have released the names even then were it not for US Navy staff attorney Lieutenant Commander Matt Diaz.

* * *

As a young man, Diaz was a high school dropout working as a full-time dishwasher, going nowhere. He and his girlfriend were living in a motel off a freeway in San Bernardino County, in Southern California. Three people—his father, the motel manager, and one of the cooks in the restaurant—were very concerned about him. Each of them individually encouraged Diaz to enlist in the military and find direction. He followed their advice.

Diaz took college courses while in the military. Later he pursued a law degree to become a judge advocate general officer in the navy. (“Judge advocate general,” or JAG, is the term used for military attorneys.) He enrolled in JAG school and obtained an LLM, or master of laws, degree. While working toward the degree, Diaz took a semester of international law classes. When the opportunity arose to choose a foreign station, he decided on Guantánamo, rather than Afghanistan or Iraq. He began his work in Guantánamo in July 2004.

Diaz was working at his desk as deputy legal advisor at Guantánamo in early 2005 when he was copied on an email from a human rights attorney in New York. The attorney had requested that the government release the names of the men held in Guantánamo.

The Bush administration denied the request. Diaz was torn. He believed that all families should know whether their sons, husbands, and fathers were being held in Guantánamo. But he knew that the list was classified and could not be officially released.

* * *

There were other families besides Slahi’s who had heard the news about their loved ones from various sources. Australian Maha Habib heard the news that her husband was alive through the media, specifically radio and television.

In the case of Kuwaiti detainee Fawzi al-Odah, his father, Khalid al-Odah, knew his son had been traveling with a friend in Afghanistan and Pakistan. The friend told Khalid al-Odah by phone that Pakistani military officials were holding Fawzi. Fortunately, the father knew the Kuwaiti minister of foreign affairs, who had connections with the US government. He revealed to the father that Fawzi had been transferred to the American military and was in Guantánamo. The friend was later seized and also transported to Guantánamo.

Families also heard about their loved ones from the men who were released from Guantánamo. The men provided human rights organizations with the names of people they had met in the prison. Sometimes the released men contacted detainees’ families directly. In several countries, as in Kuwait, local government officials formally informed the families. However, other countries were not as quick or willing to reveal the whereabouts of the missing men. These countries, like Mauritania, told the families that they could not disclose or confirm anything about their loved ones.

There were some instances where the Red Cross delivered a postcard from the detainee to the family—provided the family had a permanent address and was not living in a country torn by war. Some families first heard the news through such postcards. However, it took anywhere from months to more than a year for the cards to reach recipients. And cards were heavily censored; on some postcards, nothing appeared but the word “Dear.” In addition, the United States had a policy of keeping certain detainees hidden from the Red Cross. Those detainees never sent cards.

* * *

It was with this background that Matt Diaz’s story begins. He was working as a staff lawyer in Guantánamo when habeas attorney Barbara Olshansky sent the request for the names of all the detainees still in the prison. Olshansky was a lawyer for the Center for Constitutional Rights (CCR) in New York City.

The CCR was the first nonprofit organization to courageously take a stand for America and the rule of law after 9/11 by agreeing to represent the detainees. It was a huge step for the group, which knew that it could be labeled “unpatriotic” and possibly lose funding from supporters. But CCR’s president, Michael Ratner, and its board believed that America’s values and principles mattered most, especially in wartime. They decided to stand up for what is right, for the Constitution and due process. CCR and the handful of lawyers around the country who challenged Guantánamo policy in those early days after 9/11 received hate mail and death threats. Nevertheless, they persisted. CCR was the driving force behind Rasul v. Bush in early 2002.

In December 2004, Olshansky wrote an email to the Joint Task Force in Guantánamo and the Southern Command in Miami. SOUTHCOM is in charge of the southern region, which includes Central America, South America, and the Caribbean. She requested the names of all the detainees still held in Guantánamo. The recipients of her email were under the supervision of the Department of Defense (DOD). Diaz received a copy.

In the email, Olshansky asserted that in not revealing the names, the government was in violation of the Geneva Conventions. The United States and every nation in the world had signed the conventions. She also believed that the military was denying the men access to counsel, as required by Rasul.

The DOD denied her request. At the time, it did not provide a reason. A year later, when Diaz was tried in a military court-martial for releasing the classified names, a lawyer for the DOD testified that detainee policy was to not release names of people who were confined during wartime. (That detainee policy was in violation of the Geneva Conventions. However, in February 2002 President Bush had declared that the Geneva Conventions did not apply in Guantánamo.)

Diaz did not have the authority to make the decision to release the names. Moreover, arriving in July 2004 and being in Guantánamo for less than six months, he was still on a steep learning curve in understanding how everything worked. His tour of duty was to end in January 2005. (The government cycled most of its military personnel through every six months, and few people had a complete grasp of operations before they left the base.)

Consequently, after seeing that the DOD had denied Olshansky’s request, Diaz believed that the government might never release the names. Diaz thought to himself, “I’m on the wrong side of things here.”

“Knowing that we were not going to release the names, knowing who my relief was going to be, and just knowing the general atmosphere that we’re operating in, there’s no way these guys were ever going to be identified,” he said. He asked himself whether there was something he could do. “I know you can’t do it through proper channels because it’s just top-down. There’s no way this is going to be done properly,” he said to us.

Diaz struggled with his conscience. He knew that there were many families still wondering what happened to their loved ones and whether they were still alive. Diaz believed that but for him, the families might never know.

“And, could I sleep or live with myself for the rest of my life knowing who knows how this would turn out? Would these guys have been unidentified forever, indefinitely as their detention is? So, I mean the only way that would really do it was to actually release the names.”

Once he decided that the names had to be released, Diaz resolved to do it quickly, before he changed his mind. “I did it in a hurried manner. I guess that’s how I left the prints on it.”

He could not leave the island with the list. He and all his belongings would be searched. “So how could I do it without it being traced back to me?” he recalled asking himself. “I mean, because there’s still a concern about, you know—I could be prosecuted. It could ruin my career.”

In January 2005, on the night before he was to leave the base at the end of his six-month tour, he downloaded the list, minimized it, printed it, placed it in a greeting card, inserted the card inside an envelope, addressed the envelope to Olshansky, sealed the envelope, carried it to the post office, and mailed it.

“It’s hard sometimes to think of what I was thinking at the time, as I was going through it,” he said. “But, once I threw it in there, then it’s like there’s no turning back. I mean it’s in the mailbox now. And so then I returned to my quarters and got ready, because there was a farewell the last night there.”

When Olshansky received the card, another lawyer in the office advised her that it “was a trap.” The colleague was afraid that if the envelope held classified information, the government would hold Olshansky, and possibly CCR itself, accountable.

Olshansky recalled that CCR president Ratner wanted to go “straight to the New York Times, like the Pentagon Papers,” and offer the document to them. (The Pentagon Papers were highly classified DOD documents on the Vietnam War that were leaked to the press.) But because others in CCR were afraid that the letter Olshansky received could compromise CCR if the organization held the information, the lawyers decided to seek advice from outside counsel. Outside counsel told them that the document could be top-secret material and retaining it could “constitute treason.”

In response, Olshansky suggested that CCR ask federal district court judge Colleen Kollar-Kotelly to hold the document—with the stipulation that if CCR won the right to the names, the judge would unseal the contents. The judge refused. However, she agreed to have the document held in the court security office in Crystal City while the case was being litigated. But the court security office would not consent. Instead, it informed Olshansky that federal agents would show up at her office the next morning at 6 a.m. to collect the document and all copies.

Olshansky told us how she was “really a klutz” after the phone call with the security office. “Coffee spilled all over the envelope. You couldn’t really read the handwriting anymore,” she said. The next morning, a “guy in a black trench coat” arrived to collect the document.

The investigation continued for a year, while the authorities sought to identify the person who sent the names. During that time, Olshansky went to southern Africa to work on human rights issues. When she arrived back home, naval police welcomed her. They took her into custody and brought her to the Norfolk naval base. They held her for nearly one month as a material witness. (A material witness is alleged to hold information material to a criminal proceeding and may be arrested.) Olshansky explained to the military authorities that she did not know who Matt Diaz was. They did not believe her.

Diaz was arrested and initially charged with improperly mailing classified information; conduct unbecoming an officer (for giving classified information to a person unauthorized to receive it); several counts under the Espionage Act, including the willful disclosure of national defense information with the intent to harm his country or advantage another nation; and several other counts, for releasing the information reasonably believing that it could harm his nation or advantage another country.

He could have received a sentence of thirty-six and a half years for the initial charges. The most serious charge, of intent to harm his country, was dropped. By the time he went to trial, the maximum sentence he could have received was twenty-four years.

At Diaz’s court-martial, Barbara Olshansky testified that the Center for Constitutional Rights had filed a class action hearing challenging the detentions, and thereby already had the information in the list. She also asked and was permitted to present a “victim impact statement.” She described Diaz as “being a hero of the most traditional American kind, like a true patriot who believed in the rule of law.” It may have made a difference. The prosecutor asked for seven years imprisonment. The jury of military officials decided on six months of prison time.

I asked Diaz whether he had any regrets.

“Well, there are a lot of regrets that I have. Primarily, to my family, for putting them through that, and taking away a lot of stuff that they could have had that they can’t have now because of what I had done. But also, on the professional side: the person that followed me, or others that follow in my position—I mean, they may not have that trust that the commanders are supposed to have in their lawyers. So yeah, it’s a regret there, that I set them up for having that on them.”

On the other hand, it was not a simple case of black and white to him.

“But then, I don’t know. I had to weigh that on not knowing [when] these names were [ever] going to be released. What if that never happened?” He worried that because President Bush had been reelected to a second term, and the administration was fiercely pursuing its litigation and congressional strategy to block any rights for the detainees, the names would never be released.

“So, could I have lived with myself if I didn’t do that? It’s like the impact on me and my wife and daughter at that time versus these 551 individuals, versus these JAGs that may be not [seen as] trustworthy in the future. So, as I think through it, those are the things that I [considered in thinking], how can I continue to live with myself?”

When he was released, Diaz was hired as a teacher in Florida. He was laid off before his classes began. He then applied for a teaching job in New York City, but that too was unsuccessful. Fortunately, a stranger who took an interest in him helped him find a job with the Bronx Defenders in New York as a paralegal and legal aide. In 2008 Matt Diaz was awarded the Ridenhour Prize for Truth-Telling.

In linking our conversation to the truth-telling prize, Diaz reflected further on his actions. “So, maybe [I would] reconsider, which is sad, because if we don’t have the people that are going to stand up for the truth, then who knows what the government’s going to be doing or continue to do if people aren’t willing to take these actions, knowing that there’s not going to be some support on the other end of it and make it a softer landing.”

After he was hired by the Bronx Defenders, Diaz applied for readmission to the Kansas state bar, where he had been licensed to practice law before all this happened. A hearing panel of Kansas state lawyers unanimously recommended that his license be reinstated. The Kansas Supreme Court, pointing to Diaz’s disclosure of classified information, rejected the hearing panel’s recommendation and disbarred Diaz from the practice of law.

Did Matt Diaz’s actions make a difference? The United States did not officially acknowledge the identities of the men in Guantánamo until it released the first batch of 558 names in April 2006, 15 months after Diaz sent the greeting card. The US released a second batch of 201 names one month later in May 2006. The names were made public in response to a Freedom of Information Act (FOIA) request filed by the Associated Press in January 2006 and a subsequent lawsuit filed in March 2006.5 It is possible that Diaz’s actions in mailing the names spurred the United States’ response to the AP’s FOIA request. We will never know for sure.

Matt Diaz did not give up on his future. On May 2, 2018, he was sworn in to the New York state bar. He now works at a public defender office in the Bronx.

By Peter Jan Honigsberg