Court Slaps Government Over Use Of Torture Evidence

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You might not know it from the asleep at the wheel major media, but the Bush/Cheney war on terror foundation has taken some serious hits recently, from news of the murder of Gul Rahman at the Salt Pit, to the selective prosecution of David Passaro, to the finding by Judge Walker that the wiretapping was illegal, to widely acclaimed terror pros Steve Kappes and Phil Mudd both suddenly bailing from their high ranking intelligence jobs. You can add to the list a hard slap down by a Federal Court of the government’s continued use of bogus evidence obtained by brutal torture to try to justify continued detention of detainees at Guantanamo.

On Wednesday, Judge Henry H. Kennedy of the DC District Court issued his written opinion in the Habeas Petition by Uthman Abdul Rahim Mohammed Uthman, and it is a testament of what it looks like when a legitimate court encounters the unconscionable torture and innuendo evidence the US Government, under both the Bush and Obama Administrations, has been relying on to hold the detainees at Gitmo.

Uthman had been captured in the Afganistan/Pakistan border region (allegedly in the general area of Tora Bora, although that was never established) with a large group of others all rounded up en masse. Uthman claims he was a teacher innocently traveling, the DOJ asserted he was a key bodyguard for bin Laden. The evidence proffered against Uthman came almost exclusively from two other detainees, Sharqwi Abdu Ali AI-Hajj and Sanad Yislam Ali Al Kazimi, who both assert they fabricated the statements in response to severe torture.

Here is how the handling of Hajj and Kazimi was described by Uthman, and found credible by the court:

Uthman has submitted to the Court a declaration of Kristin B. Wilhelm, an attorney who represents Hajj, summarizing Hajj’s description to her of his treatment Read more →

DOJ PIN Head Steps Into More Malfeasance Poo

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Central to the prosecutorial misconduct directly resulting in the criminal charges against former Alaska Senator Ted Stevens being dismissed was Brenda Morris, the Principal Deputy Chief of the DOJ Public Integrity Section (PIN). The misconduct was so egregious, and the Office of Professional Responsibility (OPR) so infirm, the trial judge, Emmet Sullivan, appointed a special court investigator to handle a criminal contempt probe.

Has the DOJ itself taken any action in light of the heinous conduct? No, of course not, they never do at the Roach Motel that is the OPR. Instead, the DOJ banished Morris to the Atlanta USA office apparently still as some kind of functioning authority in the Public Integrity (PIN) section. The DOJ is nothing if not consistent, whether under Bush or Obama.

Morris has promptly inserted herself into another high charged political mess, and done so with questionable ethics and curious basis for involvement. From Joe Palazzolo at Main Justice:

Brenda Morris, a veteran trial lawyer in the Criminal Division’s Public Integrity Section, was among a group of federal law enforcement officials who met with Alabama legislators on April 1 to inform them of the probe, which is related to a proposed amendment to the state constitution that would legalize electronic bingo.

The investigation has inflamed tensions between state Democrats and Republican-appointed U.S. Attorney Leura Canary, who prosecuted former Gov. Don Siegelman (D) and whose husband has close ties to Republican Gov. Bob Riley, who strongly opposes the amendment. Canary’s office and the Public Integrity Section are jointly investigating bingo proponents’ quest for votes in support of the amendment, which the Senate passed on March 30.

The state House of Representatives has yet to vote. Alabama Democrats sent a letter to the Lanny Breuer, the head of the Justice Department’s Criminal Division, charging that the “unprecedented” disclosure of the investigation was meant to have a “chilling effect” on state legislators who otherwise might have voted for the amendment.

Here, from the Alabama Press Register, are a few quotes from local Alabama legal experts familiar with the facts and history:

Doug Jones, a former U.S. attorney now in private practice in Birmingham, called the private meeting a “virtually unprecedented” break from standard FBI procedures.

“I can’t think of a legitimate law enforcement purpose to do something like this,” said Jones, who represents members of the Alabama Democratic Caucus.

“I have never, in all my years of practicing law, heard of an event like what happened (on Thursday)” said Mobile County District Attorney John Tyson Jr. “It was stunning to me.”

Former U.S. Attorney William Kimbrough of Mobile said he’d seen nothing like it in a legal career that spans nearly five decades.

So what in the world was Brenda Morris doing smack dab in the middle of such a contentious political mess and how could the Obama/Holder DOJ think it appropriate? The answer is hard to fathom. Morris was supposed to have been tasked to the Atlanta US Attorney’s office as a litigation attorney while she is being investigated by the court for criminal contempt from her last case. You really have to wonder who is running the asylum at DOJ Main to think that there could ever be positive optics from Morris being involved in anything politically contentious.

You also have to wonder how exactly it is the Obama Administration has seen fit to leave Leura Canary, the Karl Rove acolyte who persecuted Don Siegelman, in office as the US Attorney for the Middle District of Alabama. Local blogs are not amused; from Legal Schnauzer:

According to press reports, representatives from the Office of the U.S. Attorney for the Middle District of Alabama played a key role in Thursday’s meeting. Bush appointee Leura Canary, who oversaw the prosecution of former Democratic governor and Bob Riley opponent Don Siegelman, remains in the charge of that office. Alabama’s two Republican U.S. Senators, Richard Shelby and Jeff Sessions, have scuttled various Obama nominees for the position, and the White House, so far, has chosen not to fight for the two candidates (Michel Nicrosi and Joseph Van Heest) favored by Democrats.

Canary’s lingering presence in office almost certainly is driving the bingo investigation. Angela Tobon, an FBI special agent in Mobile, Alabama, told The Birmingham News that the Public Integrity Section (PIN) of the Justice Department is leading the inquiry. Tobon refused to elaborate when contacted by a reporter from the Montgomery Advertiser.
….
Does that mean Leura Canary was able to take advantage of a leaderless organization, contacting “loyal Bushies” still embedded in the Justice Department to help get PIN involved in a bogus Alabama operation?

It sure looks that way.

I honestly do not know enough to make the call on the underlying electronic bingo investigation, but the locals sure look to be raising a lot of very good questions about how it is being used to manipulate the local political landscape. Irrespective of the merits of the underlying investigation, leaving tainted authorities, of questionable ethics, like Leura Canary and Brenda Morris to be the face of this unusual and politically charged matter is simply inexcusable.

Chertoff’s Fence

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All this talk about Michael Chertoff’s role in refusing CIA an advance declination for torture had gotten me wondering about the status of Chertoff’s biggest policy initiative at the Department of Homeland Security: the fence along the Mexican border. Last I remembered, the Bush Administration was using the fence as an excuse to shred environmental and property laws–except in the case of key Bush supporters.

As it happens, C&L links to a story and a GAO study updating us on Chertoff’s fence. And it’s going about as badly as I expected.

The Department of Homeland Security’s plan to build a virtual fence across the U.S.-Mexico border has come to a crashing halt just days before the release of a report expected to slam the system.

Homeland chief Janet Napolitano beat the Government Accountability Office report to the punch when she announced Tuesday that she’s freezing funding for the Secure Border Initiative Network.

Homeland Security hired The Boeing Co. 3 1/2 years ago to build a string of towers along the 2,000-mile border. The towers were to integrate off-the-shelf products — cameras, radar, connections to ground sensors — so that Border Patrol agents could see who and what was coming across in real time.

Boeing made big promises about SBInet’s capabilities.

“Ninety to 100 percent of all illegal crossers, this camera system was going to identify and characterize this threat,” said Rich Stana, who wrote a report on the project last year for the GAO.

Boeing built a 28-mile test section in the Southern Arizona desert. It didn’t work. The company regrouped, redesigned and redeployed one set of towers near the first set. It is building another section right now. The entire border was supposed to be covered a year ago, but after three years — and $1.4 billion — the system is still full of bugs.

“Well, it sort of works,” Stana said.

$1.4 billion to roll back on environmental protections with a buggy computer mess–and little improved security–as a result?!?!? No one could have anticipated!

Meanwhile, the numbers of undocumented workers are beginning to drop since Bush made such a hash of our economy there’s no real reason to come here in the first place.

The Comey College Of Prosecutorial Knowledge

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This one is for Mary, who sent me the link from the road. As everyone knows, once you earn your bones in the Bush DOJ on torture and/or illegal wiretapping, you get a plum position in the private world. As Mary has consistently pointed out, Jim Comey got jumped in to the gang that couldn’t torture straight when he invoked state secrets to cover for Larry Thompson and other malfeasants in the Maher Arar case. For that fine work, Comey is now General Counsel at Lockheed Martin Aerospace while Thompson had to settle for the General Counsel slot at PepsiCo. But today is about Comey’s current crew, Lockheed.

The Wall Street Journal has an article out describing the fine educational possibilities provided the world community by the American military-industrial complex:

Lockheed Martin Corp. became the nation’s No. 1 military contractor by selling cutting-edge weaponry like the F-35 Joint Strike Fighter.

Its latest contribution to the U.S. arsenal: training prosecutors in Liberia’s Justice Ministry.

The U.S. government has hired the defense contractor to test an emerging tenet of its security policy. Called “smart power,” it blends military might with nation-building activities, in hopes of boosting political stability and American influence in far-flung corners such as Liberia.

Yep, the makers of strike fighters, cruise missiles and other niceties of global thermonuclear war, are gonna school up the new justice class in Liberia. Really, what could go wrong??

Defense firms are eager to oblige. “The definition of global security is changing,” says Lockheed’s Chairman and Chief Executive Robert Stevens. He wants the maker of the Air Force’s most advanced fighters to become a central player in the U.S. campaign to use economic and political means to align countries with American strategic interests.

Last year, Lockheed had two of its highest profile programs, the F-22 Raptor fighter and a fleet of presidential helicopters, ended by the Obama administration. Now, Lockheed is one of several defense firms expected to bid for a State Department contract to support “criminal justice sector development programs world-wide,” that could be worth up to $30 billion over five years.

Well, that does seem like a promising business opportunity and, hey, why should Halliburton and Blackwater/Xe get all the fun and Ferengi profit?

Morgan Stanley defense analyst Heidi Wood says Lockheed’s early push into this realm sets it apart from competitors. It is too soon to pinpoint a financial impact, she says, but the moves will pay off. “It’s a complete paradigm change.”

Yeah, ya think?? I wonder what kind of homework the Lockheed law professors assign? Read the entire WSJ article, it is worth it.

Now, to be fair, Jim Comey is not specifically referenced in the comprehensive article, but there is little question but that he is the top prosecutorial experience Lockheed possesses and, really, a joint with the history of Liberia would be the perfect place for former Bush/Cheney prosecutors to impart their “special” skills. It could all fit so nicely.

More Obama Administration Civil Liberties Neglect

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In New York, the cops are getting frisky with minorities (suspect classes under the equal protection clause):

From 2004 through 2009, in a policy that has gotten completely out of control, New York City police officers stopped people on the street and checked them out nearly three million times, frisking and otherwise humiliating many of them.

Upward of 90 percent of the people stopped are completely innocent of any wrongdoing. And yet the New York Police Department is compounding this intolerable indignity by compiling an enormous and permanent computerized database of these encounters between innocent New Yorkers and the police.

Not only are most of the people innocent, but a vast majority are either black or Hispanic. There is no defense for this policy. It’s a gruesome, racist practice that should offend all New Yorkers, and it should cease.

Police Department statistics show that 2,798,461 stops were made in that six-year period. In 2,467,150 of those instances, the people stopped had done nothing wrong. That’s 88.2 percent of all stops over six years. Black people were stopped during that period a staggering 1,444,559 times. Hispanics accounted for 843,817 of the stops and whites 287,218.
….
“They have been collecting the names and all sorts of other information about everybody who is stopped and frisked on the streets,” said Donna Lieberman, the executive director of the New York Civil Liberties Union, which is fighting the department’s stop-and-frisk policy and its compiling of data on people who are innocent. “This is a massive database of innocent, overwhelmingly black and Latino people,” she said.

Bob Herbert is right, it is “a gruesome, racist practice”. Thank god we have a Constitutional law scholar President, expert in civil rights and dedicated to protecting the liberties afforded by them. This is a perfect situation for the President’s Privacy and Civil Liberties Oversight Board!

Oh, wait……..

When President Bush two years ago failed to name members to a federal board to monitor the protection of civil liberties, Democrats and activist groups were duly outraged, seeing it as one more example of his administration’s indifference to the subject.

But more than a year into a new presidency, the Privacy and Civil Liberties Oversight Board—created by Congress in 2007—remains as much a cipher under Barack Obama as it was under George W. Bush. The White House has yet to Read more →

The Inherent Conflict Of Interest With DOJ's OPR And David Margolis

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Who watches the watchers? Always a valid question; today I want to look at the DOJ Office of Professional Responsibility and its conduct in the investigation of United States governmental attorneys, specifically within the Office of Legal Counsel, involved in the Bush/Cheney torture program. Aside from the facts and conclusions (discussion underway here, here and here), the report is notable for the process producing it, namely the DOJ investigating itself and, not so shockingly, exculpating itself. This will be the first in a series of more specific posts on this blog discussing the multiple, and severe, conflict of interest issues inherent in the OPR Report.

The first, and most obvious, issue of conflict with OPR is that it places evaluation and resolution of ethical complaints against DOJ attorneys in the hands of the DOJ. The power to determine whether there is any impropriety is solely within the hands of those supervising and/or ultimately responsible for the impropriety. Pursuant to 28 C.F.R. § 0.39a, OPR reports directly to the Attorney General and Deputy Attorney General. A vested interest if there ever was one.

Most governmental agencies have independent Inspectors General which operate independently of the agency leadership, have jurisdiction of the entire agency including legal counsel, and thus have credibility as somewhat neutral and detached evaluators and voices. Not so the DOJ, who has arrogated upon themselves the sole right to sit in judgment of themselves. This action to grab the exclusive authority for themselves and exclude the independent IG was first accomplished by Attorney General Order 1931-94 dated November 8, 1994 subsequently codified into the Code of Federal Regulations and reinforced through section 308 of the 2002 Department of Justice Reauthorization Act. Just in time for the war on terror legal shenanigans!

Glenn Fine, the DOJ IG has given Congressional testimony to the US Senate regarding the inherent conflict:

Second, the current limitation on the DOJ OIG’s jurisdiction prevents the OIG – which by statute operates independent of the agency – from investigating an entire class of misconduct allegations involving DOJ attorneys’ actions, and instead assigns this responsibility to OPR, which is not statutorily independent and reports directly to the Attorney General and the Deputy Attorney General. In effect, the limitation on the OIG’s jurisdiction creates a conflict of interest and contravenes the rationale for establishing independent Inspectors General throughout the government. It also permits an Attorney General to assign an investigation that raises questions about his conduct or the conduct of his senior staff to OPR, an entity that reports to and is supervised by the Attorney General and Deputy Attorney General and that lacks the insulation and independence guaranteed by the IG Act.

This concern is not merely hypothetical. Recently, the Attorney General directed Read more →

Hopey Changey Bipartisany Bush!

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I’ve been puzzling all week since this happened last Saturday (January 30, from the pool report).

President Bush 41, with former Fla. Gov. Jeb Bush rolled up to the White House at 9:35 for a meeting with POTUS. At 10:09, the two emerged to fat, driving snow flakes. Responding to a called question, 41 said only, “Good meeting. Good meeting.”

But it does intrigue–nay, concern–me that Jeb! started preaching the gospel of bipartisanship shortly thereafter.

The capper came Thursday when, at the top of the 7 o’clock hour, right after Vice President Joe Biden, Bush made a rare network television appearance on NBC’s Today Show. The intensely private Bush’s interview with the overly familiar Matt Lauer rattled Florida political circles.

[snip]Bush’s comments about Crist’s support for President Barack Obama’s economic stimulus plan got the most attention, but his call for Democrats and Republicans to work together was the biggest clue to his national ambitions.

“I think that leaders on both sides of the aisle need to figure out where there is common ground and at least focus on that,” he said. “It’s one thing to give a good speech. The other thing is to invite people that don’t agree exactly with your point of view to build consensus.”

New ACLU Torture FOIA Docs Working Thread

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There are new documents in at the ACLU from their ongoing FOIA effort on the torture tape destruction matter. Here is the ACLU press release with link:

We’ve received some new documents in our DoD torture FOIA lawsuit, related to the CIA’s destruction of interrogation videotapes. They are posted here: http://www.aclu.org/national-security/aclu-v-department-defense, at the end of the section titled Documents Relating to CIA Contempt, with the date of 01/08/2010.

One thing we found interesting – there are a number of documents that focus on “lessons for the future,” some of those from as early as 8/2002, as though the documents memorialize what the CIA is learning as its interrogation program marches on.

Jeff Kaye has already spotted this one:

I think this is first evidence of actual approval from HQ for tape

destruction. Compare this with previous ACLU timeline (as of 11/09):

http://www.aclu.org/files/assets/20091124_Chronology_of_Videotapes.pdf

We knew about the 11/8 request, but not that permission was granted on

that day. If I’m wrong about this, please set me straight.

A Rather Sad Ending For Dan

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The New York Court of Appeals today issued its decision denying Dan Rather’s appeal from the dismissal of his civil case. In light of the fact his case was pled and litigated under New York state law in state courts, this is, sadly, likely the last act in the play.

Dan Rather’s personal statement on the decision:

Naturally I am disappointed in today’s ruling because we know it is a grave miscarriage of justice.

Most of all I am disappointed that no court or jury studied the evidence and heard the actual facts of the case. The case was dismissed on purely technical grounds.

My mission continues to be working to ensure that the media can gather and report news unfettered by the influence of government and major corporate interests.

Dan Rather

This stems from a decision by the New York Appellate Division last September, specifically September 29, 2009. It was a horrible decision on a number of grounds, a copy attached here, but it was decided 5-0 by the Appellate Division which made the odds of the Court of Appeals granting the request to appeal slim.

Under New York state law and procedure, you need permission to appeal to the Court of Appeals from a unanimous Appellate Division decision. Either the Appellate Division has to give permission or Court of Appeals has to give permission; but there was no appeal as of a matter of right for Dan, and the Court of Appeals refused his request.

The decision last September by the Appellate Division was horrid and truly questionable legally, at least in my opinion, notably in the way it cut off the very discovery that could, and would, have provided the basis to overcome the deficiencies the court focused on. In essence, the appellate court prevented Rather from demonstrating his case, and then dismissed it because he had not demonstrated his case. Irrespective of that, however, the decision stands and Dan Rather appears unjustifiably done. Courage Dan!

Obama Appoints Fox To Evaluate Terror Watchlist Henhouse

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fox-and-chicken-richardson-300x288Barack Obama, doing his best to make Dick Cheney’s questions about leadership look rational, has assigned John Brennan to conduct the Administration’s ballyhooed investigation into the claimed failure of the terrorist watchlist program in the Christmas Fruit Of The Loom Bomber incident.

What’s wrong with this picture? Throw a dart in any direction and you will find something.Politico gives the unsettling details:

President Barack Obama promised a “thorough review” of the government’s terrorist watch-list system after a Nigerian man reported to US government officials by his father to have radicalized and gone missing last month was allowed to board a Northwest Airlines flight to Detroit that he later tried to blow up without any additional security screening.

Yet the individual Obama has chosen to lead the review, White House counter-terrorism adviser John Brennan, served for 25 years in the CIA, helped design the current watch-list system and served as interim director of the National Counterterrorism Center, whose role is under review.

In the three years before joining the Obama administration, Brennan was president and CEO of The Analysis Corporation, an intelligence contracting firm that worked closely with the National Counterterrorism Center and other US government intelligence, law enforcement and homeland security agencies on developing terrorism watch-lists.

“Each and every day, TAC makes important contributions in the counterterrorism (CT) and national security realm by supporting national watchlisting activities as well as other CT requirements,” the company’s Web site states.

According to financial disclosures forms released by the White House, Brennan served as president and CEO of TAC from November 2005 until January 2009, when Obama named him to the White House terrorism and homeland security job. The disclosures show that Brennan reported earning a $783,000 annual salary from the Analysis Corporation in 2008. ….

One former senior intelligence official told POLITICO it is “unsavory to see Obama put Brennan in charge of a review of this matter since it is possible that NCTC or TAC could have failed in their responsibilities.”

Oy. “Unsavory”? Ya think? This is akin to a law school final exam where you try to identify all the conflicts of interest in the given situation. But there is not enough time to hit them all. Do not fret, the crack White House ethics team has looked at Brennan and determined Read more →