Pre-Coffee Deep Thought
If Emmett Sullivan, the judge that is considering vacating Toobz Stevens’ conviction because the government withheld critical information also demands the government free Aymen Saeed Batarfi, a Gitmo detainee from whom the government withheld exonerating information…
"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?"
[snip]
"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."
…Does that mean Sarah Palin will call for a special election to let Batarfi run for elected office? Or, at the very least, will Palin allow Batarfi to settle in Alaska, since Palin is so convinced that prosecutorial misconduct equates to innocence on the part of the accused?
I hate to say it, but vacating Stevens conviction is probably the correct thing to do. The remedies for the government misconduct at trial were pretty borderline, and I think an appeal would go Stevens way.
But I don’t think he should get a pass on a retrial just because he’s old and
been a senator for a long timehad many years of selfless public service. Yes, I know I’m heartless. But it may be that the prosecution fouled things so thoroughly that a fair trial is no longer possible. If a judge says so, so be it.As for Batarfi, I suspect we’ll now see that even though the law is the same for a senator and a Muslim the application is much different.
Boxturtle (Palin is so full of crap if you gave her a laxative she’d melt)
P.S. HEY MODS! The spellcheck button is giving me a 404 again.
The government moved to dismiss; their little diatribe about “probably not going to retry him” is complete bullshit, he has a Constitutional double jeopardy protection against that.
Hey EW, if this is pre-coffee…WOW! Post coffee must write your books!
Some news for you below.
3 – remember, Obama keeps promising in his speeches that he is NOT going to give Constitutional protections to the terrorist suspects. God giveth and God taketh away.
Quick! More coffee!
Good for Sullivan. Is he talking about incarcerating weasly DOJ lawyers?
Just a couple of other things to throw in – here seems as good a place as any.
The British via Scotland (I can’t help it, I like that the AG’s name invokes a separate kingdom) have made a torture referral to Scotland Yard. That referral, though, has not been limited to the Binyam Mohamed case. Instead, they have taken information compiled by cagedprisoners and other sources and made a referral on TWENTY NINE cases.
Oh yeah- Pakistan, where Chaudhry is now back on the bench. (btw – Chaudhry has also ordered an investigation of the Taliban flogging of the teenage girl – not exactly a shy and retiring justice). Is Pakistan going to cooperate before, after or during its meltdown, or never. It would be kind of a scarey thing to have to rely on our intel sources supposedly working in Pakistan to help prevent a meltdown also having some vested personal interests in keeping criminal cases quiet and having to wonder what they pick as their higher personal priority, wouldn’t it. Good thing we won’t have that on our plate.
The seventh country in the reference above would seem to be Morocco, although there is also reference to the United Arab Emirates. I’m wondering, though, how they address Afghanistan and Iraq (do they treat them as separate nations or US branches) and the bigger elephant in the room, the US.
Back to Batarfi – apparently if and when they get around to releasing him, Obama’s administration thinks no one is entitled to know where they release him. Kind of an Obama thumbs up to the approach of dumping Khalid el-Masri in a foreign country with no papers in the middle of nowhere. It’s like the US gov has their own little internal reality game of Survivor, only they get to kidnap real people from around the world and play with them.
This BBC article and this kos diary by Valtin highlight the “secret destination” approach Gov is taking for Batarfi.
Sullivan may have something to say on that – or not. Bitter snark about el-Masri aside (althought the failure of the US judicial system on that case is as complete as anything I’ve ever seen) the Obama approach on Batarfi does echo the Bush approach on Errachidi. He was the bipolar London chef who was detained in Pakistan and handed over to the US for $$ based on some guy (who got the $$) saying that he had been leading an al-Qaeda training camp. After years of abuse at GITMO, including lots of isolation (bc he tended to react as an Englishman first and demand rights and better treatment which tended to piss off his kidnappers) his lawyers were finally able to get access to the super secret info on him and figure out that he was accused of being at an al-Qaeda training camp. In no time flat they had hard evidence that he was making souffles in Mayfair when he was supposedly camping out in the hills of Afghanistan.
After that was made very clear, the US grudgingly cleared him of charges, but they didn’t send him back to London, where his family (from whom he was COMPLETELY disappeared until the GITMO names came out) was waiting. Instead, they cut a secret deal with Morocco to ship him there. Remember Morocco – the place where, according to the US own files and records that it won’t hand over in Mohamed’s case, prisoners go to be tortured? So who authorized that? Will we ever know? What was the “negotiation” on torture? [This, btw, is the area I wish Rachel had asked Powell about – did he as Sec of State negotiate wtih Egypt and Syria et al on the transfers of people like al-Libi and Maher Arar to them and insure that torture would not be used?]
In any event, after “clearing” Errachidi, with his family waiting for him, the US ships him off to Morocco. This link doesn’t go into it much, but at the time there was a lot of reporting as he was first “lost” for a bit until the pressure from his lawyers elicited the Moroccan information. They then worked to get him released from Morocco and reunited with his family.
This was also a story that got almost no US coverage. [Although of more recent date, apparently it was conversations with Errachidi in particular that were an important part of the Islamic conversion of the GITMO guard referenced in the more recent article – I can’t remember where it was, Newsweek maybe?]
Now that same Reprieve lawyer, Clive Stafford Smith, who made the US look – well, at best lets say ridiculous, is now facing charges from the Obama administration because of the letter he sent to Obama about Binyam Mohamed.
Kind of ruins all that ‘deniability’ stuff when you get letters detailing the torture.
Don’t worry – mabye Obama will drop the charges and just … ship Stafford Smith off to Morocco.
I can hardly believe they are going to try to do that to Stafford Smith. We are through the looking-glass, on to Winston Smith territory.
Back at the ranch here, we have a government minister who is “of the opinion” that he can defy the Charter and the UN Declaration (on the subject of the absolute right of repatriation — the case of Mr Abdelrazik, lost in limbo in Sudan, declared innocent by the RCMP, CSIS, and his Sudanese torturers). And the minister is doing that out of concern for the “national security” of another country. Three guesses which other country that would be.
6 – yes. It’s the kind of threat that was being made by the chief judge of the FISA court when the DOJ suddenly found religion
Meanwhile, the government of Austria and cleared Chinese Uighurs make the same argument in different venues. The Uighurs are appealing to the Sup Ct the ruling by a court of appeals that, despite the Dist Court finding that they had NEVER BEEN enemy combatants, much less illegal enemy combatants, the Dist Court could not order their release in the US. At the same time, Austria is asking why the United States won’t take its innocent detainees itself.
What a mess. And still Obama will not stand up and say outright that we had innocent people at GITMO and we have responsiblities because we kidnapped, disappeared and abused innocent people without habeas access for years.
Seems like another judge is upset that the US used mentally ill witnesses against detainees and did not inform defense.
http://www.commondreams.org/headline/2009/04/06-7
10 – that’s pretty much the same story/judge (Sullivan) that EW linked, but it sure does open the door for other cases and Judges. Also would be interesting to know whether the tribunals had that info.
From both links (yours and EW’s) the part that I find bizarre is this:
Gov is basically arguing that withholding the medical info about the witness being a crazy guy with an antisocial disorder who doesn’t give a rats ass about right v. wrong etc. — Gov is arguing that withholding this info is no big deal because they had already given OTHER information to defense counsel that so undermined the credibility of the witness that … well, ya know, it’s not like any sane person would believe him anyway Think about that. Boyd is saying that it’s no like there was any damage, bc they had already given defense enough to crater the guy as a witness anyway.
andyettheykeepholdingBatarfianyway????
Sullivan isn’t done with the DOJ, it appears:
so why is nobody speculating that this case was FUCKED UP ON PURPOSE ???
we KNOW that the DOJ was fully corrupted by REPUGLITARDS
and a SLAM DUNK case was botched BY REPUGLITARDS
and the case was against A REPUGLITARD
can anybody else out there add ???
how about logical deduction
come on people
we can do this …
Judge Sullivan, there’s someone claiming to be a “Governor Seligman” on line 3. Says he has an equal protection issue to discuss with you. You wanna take that?
A SPECIAL PROSCUTOR AT LAST???????
I see Peterr has the link, but that’s interesting stuff.
Related – this info/reaction about the insane witness. I seem to remember this material witness warrant sworn out for a US citizen on US soil that used a crazy guy as the source for the FBI affidavit …
I know nothing about Henry Schulke, but I guess it’s too much to hope for that he’d have a Tammy Faye Bakeresque press conf al la the DOJ’s Blagojevich presser, upping the ante on which founding fathers are rolling in which graves and whether or not the corruption of a whole institution that was instituted to protect justice and has instead become an institute to cover up internal crimes and misfeasance is really more or less shocking than a Gov selling off a Senate seat.
Too bad it won’t happen.
Keep in mind the nature of the “special prosecutor” this is through the court though. Don’t think you will find any wide ranging scope or public histrionics.
Here’s what I found out about Schulke in a 5 minute google adventure:
special counsel to the D.C. Commission on Judicial Disabilities and Tenure
former military judge
and his law firm bio:
Henry F. Schuelke, III ([email protected]). Hank Schuelke received his undergraduate degree from St. Peter’s College and his law degree from Villanova University. Following his graduation from law school, Mr. Schuelke served for four years in the Judge Advocate General’s Corps, U.S. Army, including three years as a Military Judge in the U.S. Army Judiciary. Mr. Schuelke then served for seven years as an Assistant United States Attorney for the District of Columbia, including three years as Executive Assistant United States Attorney. Mr. Schuelke entered private practice in 1979. Mr. Schuelke has served as General Counsel to The Autism Society of America, 1980-1990; Special Counsel to the U.S. Senate Committee on Foreign Relations, 1980-1981; Special Counsel to the U.S. Senate Select Committee on Ethics, 1989-1991; and as a member of the Committee on Grievances, U.S. District Court for the District of Columbia, 1989-1995; he currently serves as Special Counsel to the District of Columbia Commission on Judicial Disabilities and Tenure. Mr. Schuelke is a Fellow of the American College of Trial Lawyers. He is listed in The Best Lawyers in America®.
Sounds decent from that resume at least.
Judge Sullivan seems angry and willing to do something about it. About bloody time.
17 – yeah, I know. That’s why I ended with a, “too bad it won’t happen” It’s just kind of had me peeved, that Blagojevich presser, after the Padilla presser years back, and all by a dept that is itself so riddled with torture support and corruption that it pretty much only has people with no reverse peristalsis capacity left to work for it.
16 – gee, umm, Iceland?
No one who is a signatory to the Torture Conventions really wants to deal with the torture claims these guys have, do they?
All I can think of some of them is that somewhere in their heads (and in our cultures), they have confused patriotism with morality and law. Thus, morality and law come to mean torture.
That only explains the simpletons, though, the ones who believe the propaganda. The cynics who are running the show — I think they just plain don’t like our laws.
See David Brooks’ column today for just that sort of confusion, promoted in his usual faux intellectual style:
Shorter Brooks: Let’s hear it for the primal ooze.
Sheesh. No wonder Rousseau became a hermit.
nobody tell BoBo that it is pronounced “the PRIMORDIAL ooze”
I wouldn’t want to be worshiping the same ooze as that nutball
an I never told anybody about the “Wave Theory” part of that, so my religion is safe …
Aw, gosh: I just got edited. Correctly.
EW is really good at accepting this sort of thing gracefully. Me? I go now to throw a tantrum.
OT but related
Peru’s former President has been convicted of human rights violations.
20 – Straussian. Rules are meant for the governed, not the elite.
OT-From Star-Tribune: Franken extends lead over Coleman
off-topic good news
norm coleman’s senate career is MORE CRITICALLY DEAD today than it was yesterday
whoo HOO
cue the fat lady …
Golly– you mean there are degrees of being critically dead?
Is there a stage where you’re just a zombie?
Inquiring minds want to know.
Bob in HI
Strom Thurmond comes to mind.
Insert compulsory Geithner bank joke here.
They screwed this up on purpose, and the evidence was still so overwhleming that he got convicted. The way I understand it, Allen’s testimony on the affadavit contradicted his testimony in court. I don’t see how that is not fixable in a retrial. I think the fix is in…
Really??? And your evidence of that consists of what exactly? And your decades long experience in prosecutorial misconduct allegations tells you this does it? Because I been around the block a few times and I don’t see diddly squat that supports that position. What I have seen, however, are a ton of cases where dirty undisciplined prosecutors, improperly regulated and supervised, pulled crap like this trying to win at all cost in spite of all ethical constraints, and that is exactly the pattern that presents itself here.
Apologies if you have covered this before but is Stevens now free of all past charges or can any of them be brought into a courtroom ?
It is done and over. No mas.
now TPM is reporting that there will be a criminal investigation of the prosecutors in the stevens case
wanna bet they botch that one too ???
anybody
I’ll give odds …
ooooooohhh
off-topic, in the “I’m psychic, or psychotic, or something like that” department
I just saw a personal transportation POD on cnn
an I think it’s made by GM
still “drivable” though
but we can fix that
GPS driven transportation, here we come
that old crystal bong is NEVER wrong
(still cloudy right now though …)
I think what you saw was a joint enterprise between GM and Segway. Its a two-wheeler that is battery powered, and can go up to 35 mph. The pod you saw only had the frame bars on the sides, and can turn on a dime. Basically like a golf cart but with a smaller wheel base.
Bob in HI
yep, it’s a segway
so it ain’t gonna work here in Amurika
george bush is smarter than half the fookin country, and he damn near killed himself on one of those things
in other news, pretzel related deaths are WAAAAY up this year …
(wink)
Sorry about the OT, has anyone read Chris Hedges’s article at Truthdig- “Resist or Become Serfs”? My retinas are still burning.
Stephen, I believe this is your link:
http://www.alternet.org/workpl…..fs/?page=2
OT….
Teddy Kennedy just threw out the first pitch (assisted by Jim Rice).
Dean linked to a whistleblower redacted complaint…”The allegations included claims that a female agent on the case had had an improper relationship with the government’s star witness”. Reading the AKgovernor’s hype, I could imagine that Palin kept the campaign minder, and might have brought onboard a speechwriter looking for employment after the transition of administrations in WashingtonDC. Palin’s plea for a special election sounds like a test for the illinformed. I wonder what the Republican caucus in the state legislature opines concerning her idea.
and just how big is that coffee mug any way ???
Here is a link to the actual transcript of the hearing in front of Judge Sullivan.
Wow. Apparently Batarfi is pretty ill and that makes Sullivan even touchier on the whole thing. Every time the Judge goes on about Gov trying to cancel the adjudication on the merits at the 11th hour, Gov channels Uriah Heep and says -hey, we all agree that Batarfi should be released from GITMO (and we are trying really hard through diplomatic channels to make sure that happens).
etc.
But when the Judge says – okthnxsordered – Gov says, oh no no no no no, we didn’t mean there should be a habeas release order entered, after all, while “everyone agrees” he “should” get out,
To say the Judge gets peeved if an understatement.
Some things of note IMO:
Judge Sullivan does indicate that if he can’t order a release to the US per the existing Cir Court ruling (that is being appealed – btw, the refernce in the transcript to Weavers should be Uighurs) that doesn’t mean he can’t do other things in connection with his habeas ruling, if he makes it (or in connection with the concession by gov that Batarfi should not longer be held as an enemy combatant). He comes up with something that I think is pretty good for off the cuff – that maybe he can order changes in the circumstances of detention pending ultimate release. That’s pretty damn good imo – he’s ordered a response as to why he can or can’t.
He also has made it clear he wants someone with authority (and who won’t want to be placed in contempt or suffer Welch’s current fate) to come and explain to him, face to face, EXACTLY how it is that the exculpatory information on mental illness didn’t get produced earlier and why gov then took the position that product was “inadvertent” even though it was court ordered. And he orders them to give notice to all the other Judges re: their info on this witness as well.
It also looks pretty likely that the witness or a cumulative witness in this may be Yasin Muhammed Basardh or that the facts regarding the witness are pretty integrally related to Basardh.
Gov tries to make the argument before Judge Sullivan that their failure to produce the “he’s an anti-social crazy guy” info on witness “ISN Blank” isn’t harmful bc they gave other info that impacted the witness’ credibility to defense counsel (no, not 7 years ago, or 6, or 5, or …but eventually). Judge Sullivan smacks that down and say no way, this was NOT cumulative, it was a “smoking gun.” Later he asks Gov to also brief to him whether or not any matters in a sealed order by Judge Huvelle have any import. Which is what takes you to Basardh (who apparently is Gov’s Star Witness in SIXTY or so cases).
Apparently the issue of sealing may have been partly at the request of Basardh’s lawyers. The stuff reported is that Gov has said Basardh was tight wtih Bin Laden and hung with him at Tora Bora. Now you have to wonder if maybe the crazy guy found a way to keep from being tortured by making himself sound very important and then offering up “evidence” about pretty much anyone gov wanted? Or not, who knows. But you also have to wonder if anyone will ever get to know. Sullivan kind of indicates he thinks Huvelle’s order in the case he is obliquely referencing is likely to be declasssified – may not be about Basardh, but that’s the way I’d bet for now.
Ah yes, Harvard’s Cap’n Jack, so concerned that if detainees got to go to court they would become “Scheherazades” and it would just lose the GWOT if we let them come an lie to the courts. I guess he’s right – much better to let them lie to tribunals who then use the info to go pick up other people to disappear into abuse. Harvard be so lucky.
Corollary: If the government can’t lie in court with impunity we also lose the GWOT.
It’s all of the same moldy cloth.
48 – LOL. I was thinking something very similar. I don’t guess Sullivan will order “Warden” (really – could there be any more cosmic irony than that name?) or whatever other “high ranking” DOJ officer that appears to dance the dance of the seven veils to keep from having sanctions, but it’s a thought.