The Strange Case of Hiwa Abdul Rahman Rashul (Part 1)

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[Today Emptywheel has a special treat in the form of a guest post from one of our very longtime commenters, William Ockham. Marcy alluded to this right before she left. WO really drilled deep into this story and has produced a great article. As the title suggests, there will also be a Part II that will delve into the implications. Give WO some love and participation in comments, and in light of the special nature of this post, please stay on topic for this one; if there are other issues, please feel free to use the previous post on the Bates Contempt Decision for those. Thank you. – bmaz]

In June 2004, Hiwa Abdul Rahman Rashul had his 15 minutes of fame when Secretary of Defense Donald Rumsfeld answered questions at a press conference about the detainee known to American soldiers only as Triple X, the first ghost detainee transferred from CIA custody to the U.S. military. Rashul was suspected of being a member of Ansar al-Islam, a violent Kurdish Sunni Islamist movement opposed to the dominant Kurdish groups of northeastern Iraq. The real story of Hiwa Abdul Rahman Rashul wasn’t his terrorist past or his time as a ghost detainee of the DOD, but his treatment by the CIA in between.

Part 1: Did the DOJ cover up what its own OLC ruled was a war crime committed by the CIA?

The Office of Legal Counsel in the Bush Administration’s Department of Justice has had a notoriously broad view of the Executive Branch’s ability to define our obligations under the Geneva Conventions. But if the OLC under Goldsmith and Bradbury decided that the CIA had engaged in a grave breach of the Geneva Conventions (and even John Yoo agreed), and the CIA OIG had made a criminal referral to the DOJ, wouldn’t you expect a prosecution? Recently released CIA documents suggest that such a referral was made, but no prosecution occurred. Perhaps the very public complicity of Donald Rumsfeld, Alberto Gonzales, and George Tenet played a role in the decision not to prosecute. But I’m getting ahead of myself. First, I want to make it clear that I’m using the term ‘war crime’ in the very narrow sense of a violation of U.S.C. § 2441.

The Crime

Return with me now to those thrilling days of yester-year, that is, the summer of 2003. Dana Priest (in a story from October 2004) and Jane Mayer (The Dark Side) are our narrators. Mayer’s account (in bold) appears to derive directly from Jack Goldsmith:

Read more →

The Bates Decision: A Question Unasked And Unanswered

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First off, a mea culpa. I was one of the first and strongest saying that Judge Bates would opt to just punt the contempt controversy back into Congress’s lap. I didn’t necessarily believe that he would hand a victory to the Bushies, but I did think he would, for the most part, take a pass by claiming it was not really a question for the courts and that Congress had alternative remedies available, that had not yet been exhausted, thus the issue not appropriate for consideration at this time (In fact, Bates noted on page 70 of the opinion that he would have been on solid ground doing just that).

I was wrong.

The Bush/Cheney unitary executive cult got their rear ends handed to them. Again. How shocking. Or, you know, not. They are basically batting an 0-fer since Cheney took Scalia on the robber baron aristocrat jet set hunting trip and managed to get a decision allowing him to keep the nation’s energy program secret from the nation.

But now, predictably, the dark hats of Miers, Bolten and Bushco want to delay the effect of Judge Bates’ ruling until the next of never on the appeal. However, as MadDog (good to have the dog back I might add) points out, the white hats of Conyers’ House Judiciary Committee have a response to that.

Plaintiff Committee on the Judiciary of the U.S. House of Representatives (“Committee”) opposes Defendants’ motion for a stay pending appeal on the following grounds:

(1) Ms. Miers’s claim of absolute immunity has no likelihood of success on appeal because it is baseless and contrary to Supreme Court precedent, and was thoroughly and irrefutably rejected by the Court;

(2) the Court’s non-final order of July 31, 2008 (“Order”) is not appealable, and thus a stay needlessly would cause further harmful delay;

(3) Defendants suffer no harm, let alone irreparable harm, from (a) appearing at a congressional hearing or (b) producing non-privileged documents and descriptions of the documents they seek to withhold on the basis of executive privilege;

(4) the Committee will suffer considerable harm as a result of the Executive Branch’s delaying tactics, which virtually assure that the Committee’s investigation into the forced resignations in mid-Administration of nine United States Attorneys in 2006 (“Investigation”) will not be completed until after the 110th Congress has concluded and the current Administration has left office in January 2009; and

(5) a stay would undermine the public interest by hindering the Congress from developing, if necessary, any relevant legislative remedies designed to improve the effective and fair functioning of the Nation’s criminal justice system.

This is a nicely done, pointed response to the transparently disingenuous delay tactics of the Bush Administration. In going through the decision and the latest arguments on the shape of the appellate process by the parties, I realize there is another facet to this equation that has been bugging me. Despite how good Bates’ decision is, why did it not address the refusal by the DOJ to prosecute a duly constituted, and valid on it’s face, contempt citation referred by the United States Congress?

Bates’ decision has drawn nearly uniform praise from across the board (with the exception, of course, of the parties negatively affected by it and their sycophants) including on this blog. Martin Lederman is indicative:

It is an extraordinarily thorough, scholarly and thoughtful opinion — surely one of the best opinions ever written on questions relating to executive/congressional disputes. It is also, IMHO, correct on the merits, of virtually all of the many legal questions it discusses. It is important not only for its holding on the immunity question, but also for its holding and analysis on congressional standing, and for its unequivocal rejection (pp. 39-41) of one of the Administration’s principal arguments with respect to all of these privilege disputes in the U.S. Attorney matter…

I find it shocking to be writing these words, but I pretty much agree. However, there is one glaring issue that is not addressed in the decision that is critical to this greater discussion of power and privilege, and I predict that will prove unfortunate in the future. To wit, is it appropriate for the US Attorney, in this case Jeffrey Taylor of the DC District, upon specific command of the Attorney General, in this case the ever obstructing Mike Mukasey, to refuse to prosecute a duly constituted and valid on it’s face contempt citation referred by the United States Congress?

A whole lot of people, both expert and non, have already been asking "what happens next"? What happens when Miers, Bolten, Rove et al. either blow off their repeat summons, or give unprincipled refusals to answer proper examination by the Committee? Without a prior resolution of the propriety of the Mukasey/Taylor refusal to prosecute the properly referred contempt citation, Read more →

FISA Redux: The Slippery Slope Becomes A Mine Shaft

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(photo h/t Pointed Words)

Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.

With the utterance of those words and placement of quill to paper, by Founding Father Benjamin Franklin, so began the half life decay of his wisdom. The surveillance state we occupy today is the festering, mature result of the acts of cloying politicians and barons of power to serve their own political and financial goals by declaring themselves the protectors of law and order. The daddy state. They spread fear of isolated, and ultimately inconsequential, yet publically hyped acts of crime and terror in order to supplicate the nation at large.

It has been a singularly effective scheme.

So it began with characterization of hideous and substantive Fourth Amendment violations of fundamental search and seizure law as "mere technicalities". Soon judges and prosecutors, being elected or politically appointed officials themselves, started shading their duties, principles and morals under the law to find creative ways around Constitutional protections in order to avoid results that would be unpopular. Then the officials ran again for reelection proudly proclaiming how they protected the "law and order for the citizens" by "clamping down on criminals" and "elimianting the criminal’s use of technicalities". The more they talked the talk, the more they walked the walk. Down the slippery slope.

And that is where we find ourselves today. From Spencer S. Hsu and Carrie Johnson in today’s Washington Post:

The Justice Department has proposed a new domestic spying measure that would make it easier for state and local police to collect intelligence about Americans, share the sensitive data with federal agencies and retain it for at least 10 years.

The proposed changes would revise the federal government’s rules for police intelligence-gathering for the first time since 1993 and would apply to any of the nation’s 18,000 state and local police agencies that receive roughly $1.6 billion each year in federal grants.

Quietly unveiled late last month, the proposal is part of a flurry of domestic intelligence changes issued and planned by the Bush administration in its waning months. They include a recent executive order that guides the reorganization of federal spy agencies and a pending Justice Department overhaul of FBI procedures for gathering intelligence and investigating terrorism cases within U.S. borders. (Emphasis added)

This is sick. Quite frankly, the contours of this have been quite obvious, and even partially stated, as being on the way for a while now if you were paying attention. This is why I was foaming at the mouth when the Protect America Act (PAA) was passed a year ago, and especially when Congress voted "just to extend (renew) it for a period". Read more →

Kill Game: The Path Of Destruction From The Amerithrax Investigation

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"Have you no sense of decency, … at long last? Have you left no sense of decency?" These prophetic words were spoken on June 9, 1954 by Joseph Welch, attorney for the United States Army, at the nadir of the shameful McCarthy hearings. It was a time of scurrilous persecution of all numbers and types of fellow humans, based mostly on sheer rumor, innuendo and manufactured evidence. The acts of a United States Government drenched in it’s own fears, drunk of it’s own hubris and looking for political scapegoats.

The result was an everlasting shame carried by a generation of Americans. To this day, the methods and tactics of the red baiting McCarthy investigators, and the hell they wrought on the ostracized and disavantaged targets, not to mention the devastation to their families, is taught to our children as a seminal lesson of the dark, malignant growth that can consume the American ethos when fear, ambition, unitary power and political malevolence intersect unchecked and unbalanced in the halls of power in Washington DC. It is a tragic intersection that seeks a target of convenience and finds it.

And so we advance fifty years to find our dark history repeating itself in the Amerithrax case. Once again we find a unified and unchecked power in the government fueled by, and fueling, fear and trolling for a target of convenience to scapegoat. This is now incontrovertible.

Sunday’s New York Times has an extended article, by William Broad and Scott Shane, on the hell that our Government hath wrought upon it’s citizenry in the Amerithrax investigation. It is chilling.

But along the way, scores of [individuals] — terrorists, foreigners, academic researchers, biowarfare specialists and an elite group of Army scientists working behind high fences and barbed wire — drew the interest of the investigators. For some of them the cost was high: lost jobs, canceled visas, broken marriages, frayed friendships.
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The bureau began looking at biodefense insiders like Mr. Mikesell, an anthrax specialist who had worked in the 1980s and 1990s with Dr. Ivins at the Army Medical Research Institute of Infectious Diseases at Fort Detrick, in Frederick. He had then joined Battelle, a military contractor in Columbus, Ohio, that became deeply involved in secret federal research on biological weapons.

In 2002, Mr. Mikesell came under F.B.I. scrutiny, officials familiar with the case said. He began drinking heavily — a fifth of hard liquor a day toward the end, a family member said.

“It was a shock that all of a sudden he’s a raging alcoholic,” recalled the relative, who spoke on the condition of anonymity because of family sensitivities.

By late October 2002, Mr. Mikesell, 54, was dead, his short obituary in The Columbus Dispatch making no mention of his work with anthrax or the investigation.
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Another casualty was Kenneth M. Berry, an emergency room physician with a strong interest in bioterrorism threats. In August 2004, agents raided his colonial-style home and his former apartment in Wellsville, a village in western New York, as well as his parents’ beach house on the Jersey Shore.

In scenes replayed for days on local television stations, the authorities cordoned off streets as agents in protective suits emerged from the dwellings with computers and bags of papers, mail and books.

“He was devastated,” Dr. Berry’s lawyer at the time, Clifford E. Lazzaro, said in an interview. “They destroyed his marriage and destroyed him professionally for a time.”

The government has unequivocally admitted that it wrongfully targeted an individual, Steven Hatfill, for a period of six years with little to no basis in fact or evidence to do so. The result of that "most complex criminal case in bureau [FBI] history", and dedicated certainty by the Bush Department of Justice for six years, has been a lawsuit brought by Hatfill, a settlement with Hatfill, humiliation of the DOJ and, finally, a complete exoneration of Hatfill.

It is pretty clear that Hatfill would, in spite of all the evidence, still be the target of this persecution had he not fought back doggedly with every ounce of his being. The government relentlessly tried to get his civil case dismissed and to hide the ball. As with another infamous case of Bush Administration subterfuge, if not for the honesty and spine for justice on the part of Judge Reggie Walton, Hatfill would still be Read more →

Tortured Confession Evidence Tossed In First Day Of Hamdan Trial

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The Bushco Torture Brigade is on a bad luck streak in dancing school. Four beatdowns by the Supreme Court on the legality/Constitutionality of their torture and trial program is beyond bad. Four drubbings of this type for a Presidential Administration, during a supposed time of war, is simply unheard of.

When Bushco got the ruling late last week that they could proceed with their first gulag trial against Salim Hamdan, they were ecstatic. Smug in the self satisfaction that the first show trial, of the many they have been pining for, would not be further delayed, Hamdan was rushed to the Guantanamo dock and the trial commenced this morning. So far, so good.

But wait, there’s more; and it’s not good for Bushco’s cherished show trial dreams. Not even one full day into the show, and even the hand selected military judge, Keith Allred, is sending Bushco up the proverbial creek without their torture evidence paddle. From the CBC:

Judge Keith Allred, the navy captain presiding at the trial, decided Monday to bar evidence obtained from Hamdan by interrogators under “highly coercive” conditions in Afghanistan, saying prosecutors cannot use statements he made shortly after his capture at the Bagram air base and Panshir in Afghanistan.

Hamdan has said he endured beatings and solitary confinement at those locations.

The judge left the door open for the prosecution to use other statements Hamdan gave elsewhere in Afghanistan and at Guantanamo.

Michael Berrigan, the deputy chief defence counsel, described the ruling as a major blow to the tribunal system that allows hearsay and evidence obtained through coercion.

“It’s a very significant ruling because these prosecutions are built to make full advantage of statements obtained from detainees,” he said.

Berrigan is exactly right, this is a major blow. And it is a blow with far reaching consequences too, because it sets the tone, in an absolutely blistering manner, for the considerations on the Habeas petitions about to be considered by Royce Lamberth’s designated judge, Tom Hogan. What will the government do now? Ah, well…

Prosecutors are considering whether to appeal the judge’s ruling — a development that could halt the trial of Salim Hamdan that began earlier Monday after years of delays and legal setbacks.

“We need to evaluate … to what extent it has an impact on our ability to fully portray his criminality in this case, but also what it might set out Read more →

President Haney Loads Up And Fixes To Move Back to Hooterville

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There are a 183 or so days left in the magnificent George W. Bush Administration. Remember the condescending caterwauling by the Republicans when the Clintons were winding down and leaving office? Of course you do. Heavens to Betsy, they were going to plunder the country right down to stealing the "W"s off all the keyboards and typewriters. So, what is George Bush up to as the sun sets on his catastrophic presidency? What kind of Payne will he cause?

Glad you asked. Here is one example, rapacious influence peddling to fund his Presidential Crayon Workshop Library. From the Mid-East Times:

The Justice Department says it has no record that it told a GOP lobbyist accused of influence-peddling that he did not have to register his activities arranging visits to the United States and meetings with Bush administration officials for Central Asian politicians.
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The lobbyist, a major GOP fundraiser called Stephen Payne, this week was asked to resign from a Department of Homeland Security advisory panel after he was surreptitiously videotaped by the London Sunday Times. In excerpts of the tape posted by the newspaper, Payne offers to arrange meetings for an exiled former president of Kazakhstan with senior U.S. administration officials in return for a six-figure fee, including a quarter-million-dollar donation to the $200 million fundraising effort for the George W. Bush presidential library and museum.

Here is a video of Payne in the act; it is pretty damning.

We have been seeing all sorts of instances of the final grab for the country’s treasure by the Bush-Cheney gang as they prepare to flee with their tail between their legs and ill begotten booty on their backs. Doling out of no bid deals. Multi-million dollar gift contracts to Ashcroft by the DOJ. Federal land giveaways. Trashing of environmental regulations for favorite friends and industries. Seeding of the civil service corps with Regent clones. You name it, it has been cropping up. So I though it would be a fun exercise to have a working thread to list out all the instances of this plundering.

So, as Mr. Haney (Bush) and Fred Sanford (Cheney – It’s the big one Lynne, it’s the big one!) perpetrate their parting scams and thefts and move back to the scrubbrush of Texas, let’s make a list of what they are doing. And any other necessary discussion too.

UPDATE: Read more →

The Obama & Olbermann Master Plan For Criminal FISA Prosecutions

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Okay, the words "Master Plan" in the title are a joke. So is the idea of criminal prosecutions, by a future Obama Administration, for Bush era FISA violations that has been hawked, to the point of near belligerence, by Keith Olbermann both on his show and in a running flame war with Glen Greenwald. The instant article will attempt to relate some of the glaring reasons, from a practical criminal justice perspective, that the Obama/Olbermann master plan is naive, almost to the point of being comical. Comical that is if we were not literally discussing the life and spirit of the Fourth Amendment and the health and well being of the Constitutional rule of law in this country.

This is the exchange between Olbermann and Dean from which Olbermann appears to have ginned up his Obama genius master plan narrative:

DEAN: Well, I spent a lot of time reading that bill today, and it‘s a very poorly-drafted bill. One of the things that is not clear is whether it‘s not possible later to go after the telecoms for criminal liability. And that something that Obama has said during this campaign he would do, unlike prior presidents who come in and really give their predecessor a pass, he said, “I won‘t do that.” And that might be why he‘s just sitting back saying, “Well, I‘m going to let this go through. But that doesn‘t mean I‘m going to give the telecoms a pass.” I would love it if he gets on the Senate floor and says, “I‘m keeping that option opened.”

OLBERMANN: In other words, let the private suits drop and get somebody in there who‘ll actually use the laws that still exist to prosecute and make the actual statement and maybe throw a few people in jail.

DEAN: Exactly. And it looks to me, as I read this bill and talk to a number of people in Washington familiar with the bill, some who are involved in the negotiations, and they say, “You know – we just didn‘t think about this issue.”

Notwithstanding Olbermann’s fiery preacher in a pulpit exhortations, it should be noted that John Dean himself has walked his statement back from Olbermann’s claims since his original offhand quote:

But even if the bill is unclear there is no question the Bush Administration is not going to do anything to the telecoms, Read more →

Can’t Gitmo Dirty – The Penultimate Straw

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Marcy is in Minneapolis at the Wide Stance Film Festival National Conference for Media Reform (a really cool program I might add, the link is worth a look) and Ted Stevens clogged my tubes last night, but things look to be A-OK this morning.

Guantanamo The Showcase is starting to seep into the conscience. Marcy has pointed out the rather curious intersection of the right wing family value of hating on same sex marriage, and those who would wish to practice it, with military commission procedure. By far and away, the best national reporting on the Guantanamo Show is, and has long been, done by Carol Rosenberg at the Miami Herald. Marcy thinks it is Pulitzer Prize good; by the time the year is out, I’ll bet she may be right. Our friend drational has done a couple of posts reminding us that the Gitmo Showcase is much more than a macabre puppet play for the Cheney/Bush torture fiends, it is also a big campaign commercial for the "law and order" set at the GOP.

But I want to bring attention to something that really sank in for me yesterday morning and that a few people are starting to pick up on, but not many, and not nearly enough. Rosenberg laid out the background on the day long arraignment proceedings for the detainees at Gitmo at the link cited above:

But the day was remarkable — a 9 a.m. to 6:30 p.m. court session, including two prayer breaks — in which each man rejected the two to four military and civilian attorneys sitting beside him.

The director of the American Civil Liberties Union, Anthony Romero, watched from the spectators gallery in a fury. He had been building a death penalty defense fund and pool of criminal defense lawyers to help the military lawyers.

”It was one of the saddest days in American jurisprudence,” he said. ‘The word `torture’ was used so abundantly and the legal process continued.”

He blamed Pentagon haste to get the men to trial before the end of the Bush administration. Defense lawyers were not given sufficient time to forge attorney-client relationships ”with men who were tortured for five years,” before Thursday’s arraignment, he said.
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Some of the men rejected the legitimacy of commissions, in which U.S. military officers serve as judge and jurors. Saudi Mustafa Hawsawi, who allegedly funneled funds for the terror plot, went last and appeared to be echoing the others who came before him.
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At one point, after Read more →

FISA Update (And Why Is John Boehner Crying Again?)

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The week starts off with Main Core, Glen Fine’s much anticipated IG Report has been released, today is another state election (Kentucky) in the most hotly, and closely, contested primary that many of us can remember, and, now, the tragic and deflating news that Senator Ted Kennedy has a malignant brain tumor. Oh yeah, and an extended holiday weekend and Congressional recess is at hand in a couple of days. This type of situation can mean only one thing – FISA is bubbling back to the surface. Heck, the only thing missing from this equation is a terror alert; but then again, the week is still young.

First off, where we stand. The news is not all bad, but it sure isn’t all good either. From the National Journal (subscription required-sorry):

House Majority Leader Hoyer had previously said he wanted to reach a compromise on FISA by the Memorial Day recess. GOP and Democratic aides cited several reasons why that has not happened. Late last week, Hoyer sent Senate Republicans a list of provisions that House Democrats want included in a final bill, aides said. Hoyer’s proposal took Senate Republicans by surprise. A Republican aide called the proposal "a step backward."

Before Hoyer’s proposal, Senate Republicans believed that only two main issues needed to be resolved, and that they were close to reaching an agreement on them with House Democrats. One issue dealt with having the secret FISA court determine if the telecom firms should be granted retroactive immunity from lawsuits for their role in the administration’s warrantless electronic surveillance activities since the Sept. 11, 2001, terrorist attacks. The second issue centered on allowing the FISA court to review the administration’s procedures and certifications for surveillance operations. "We’re basically there on those two," an aide said.

But Hoyer’s proposal included other provisions, some of which had already been defeated during votes in the Senate, aides said. One provision, for example, would allow the FISA court to assess if the government is complying with so-called minimization procedures, which limit the amount of information collected and stored on Americans incidental to the surveillance target. Another provision contains language making FISA the exclusive means under which the government can conduct electronic surveillance.

The good news is that it appears that there is little chance that Read more →

EFF Bags A Big Win On NSLs

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Our good friends at EFF have a big announcement. They have bagged a big win against the Bush Government on the improper use of National Security Letters.

The FBI has withdrawn an unconstitutional national security letter (NSL) issued to the Internet Archive after a legal challenge from the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF). As the result of a settlement agreement, the FBI withdrew the NSL and agreed to the unsealing of the case, finally allowing the Archive’s founder to speak out for the first time about his battle against the record demand.

"The free flow of information is at the heart of every library’s work. That’s why Congress passed a law limiting the FBI’s power to issue NSLs to America’s libraries," said Brewster Kahle, founder and Digital Librarian of the Internet Archive. "While it’s never easy standing up to the government — particularly when I was barred from discussing it with anyone — I knew I had to challenge something that was clearly wrong. I’m grateful that I am able now to talk about what happened to me, so that other libraries can learn how they can fight back from these overreaching demands."
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The NSL included a gag order, prohibiting Kahle from discussing the letter and the legal issues it presented with the rest of the Archive’s Board of Directors or anyone else except his attorneys, who were also gagged. The gag also prevented the ACLU and EFF from discussing the NSL with members of Congress, even though an ACLU lawyer who represents the Archive recently testified at a congressional hearing about the FBI’s misuse of NSLs.

"This is a great victory for the Archive and also the Constitution," said Melissa Goodman, staff attorney with the ACLU. "It appears that every time a national security letter recipient has challenged an NSL in court and forced the government to justify it, the government has ultimately withdrawn its demand for records. In the absence of much needed judicial oversight – and with recipients silenced and the public in the dark – there is nothing to stop the FBI from abusing its NSL power."

You can read the entire press release here. When they say "there is nothing to stop the FBI from abusing its NSL power" that is not quite right; there is something, and it is the invaluable work of the EFF and ACLU. Make no mistake Read more →