The US Government Owns Abu-Zubaida’s Thoughts

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I just found an interesting article by Walter Pincus tucked away in the lower half of the Washington Post website. It contains no new or breaking news, but is an interesting description of just how far the government has run amok in their over-classification and demand to control information flow to the American people and the world.

Abu Zubaida’s writings are being used against him but being withheld from the public. For example, within days of the Sept. 11, 2001, attacks, according to a summary of his diary entry read aloud at his military tribunal hearing on March 27, 2007, the Palestinian detainee wrote that he was buying and storing weapons as part of a plan that Osama bin Laden devised in expectation of U.S. military action.

At the tribunal hearing, which was designed to inform Abu Zubaida of the charges against him, a summary was read of an entry from early 2002 in which he wrote that he would wage war against the United States, using explosive attacks, attacking gas stations and fuel trucks.

In all, Abu Zubaida has nine handwritten volumes of diaries. Six of them, totaling about 1,500 pages, were written before he was captured, and three were composed after his capture. So far, the government has kept all nine volumes sealed, though they are apparently considered unclassified. Even the government’s court motion on their status has remained sealed.

Marcy discussed the initial rumblings of this back in May when Abu Zubaida’s attorneys first raised the matter. It was at that point the government admitted it could not or would not produce key volumes of Abu Zubaydah’s diaries in preparation for his Combat Status Review Tribunal hearing. As Marcy noted:

The whole filing is worth reading for the Kafkaesque situation it describes, in which AZ, whose memory is described to be completely dysfunctional, has been refused the sole record he has of the events of which he has been accused, even though at least three of those accusations come directly from his diary.

Abu-Zubaida’s attorneys, because of the hyper degree of over-classification by the government, cannot fully discuss their case with their client, cannot discuss information learned from their client with their own investigators, experts and other potential witnesses, and cannot correct lies and misinformation the government has put in the public record about their client. This is a gross and intentional invasion of the attorney-client relationship and a denial of full and effective assistance of counsel.

How exactly has the government (yes, again it is both Bush and Obama, a oneness no longer shocking) effected this information and thought seizure?

While the executive order authorizing classification requires the information to be "owned," "produced," or "controlled" by the U.S. government, Abu Zubaida’s attorneys say the Justice Department has made a novel argument, that "to detain a prisoner creates a new, parallel authority to classify any and all utterances made by that prisoner for the period he is incarcerated." "Control" means government control over the agency that originates the information, not control over Abu Zubaida "by virtue of Read more →

On The Eve Of Sotomayor: Ricci Is Irrelevant

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Tomorrow, Monday morning July 13, 2009, Judge Sonia Sotomayor begins the hearing portion of her confirmation process. So far, there has been the expected (sadly) partisan yammering on her nomination. Then, on Friday, there suddenly emerged something that might seem to take hold as the focus of the obligatory partisan sniping. Frank Ricci. It came from Dahlia Lithwick at Slate:

Ricci is invariably painted as a reluctant standard-bearer; a hardworking man driven to litigation only when his dreams of promotion were shattered by a system that persecutes white men. This is the narrative we will hear next week, but it somewhat oversimplifies Ricci’s actual employment story. For instance, it’s not precisely true, as this one account would have it, that Frank Ricci "never once [sought] special treatment for his dyslexia challenge." In point of fact, Ricci sued over it.

According to local newspapers, Ricci filed his first lawsuit against the city of New Haven in 1995, at the ripe old age of 20, for failing to hire him as a firefighter. That January, the Hartford Chronicle reported that Ricci sued, saying "he was not hired because he is dyslexic." The complaint in that suit, filed in federal court, alleged that the city’s failure to hire Ricci because of his dyslexia violated the Americans with Disabilities Act. Frank Ricci was one of 795 candidates interviewed for 40 jobs. According to his complaint, the reason he was not hired was that he disclosed his dyslexia in an interview. That case was settled in 1997 with a confidential settlement in which Ricci withdrew his lawsuit in exchange for a job with the fire department and $11,143 in attorney’s fees.

In 1998, Ricci was talking about filing lawsuits again, this time over a dispute with his new employer, Middletown’s South Fire District—which had hired him in August of 1997. According to a Hartford Courant report of Aug. 11, 1998, Ricci was dismissed from the Middletown fire department after only eight months. He promptly appealed his dismissal, claiming that fire officials had retaliated against him for conducting an investigation into the department’s response to a controversial fire. A story in the Hartford Courant dated Aug. 9, 1997, has Ricci vowing "to pursue this to the fullest extent of the law."

From that already tangential report by Lithwick, has come the claptrapping by those wanting to buck up the Sotomayor nomination, unfortunately by mostly liberal voices, Read more →

Stunning al-Haramain Filing Shames Obama; Shows Duplicity Of Officials

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In early June, a critical hearing was held in front of Judge Vaughn Walker in the al-Haramain warrantless wiretapping case. As a result of that hearing, Judge Walker entered an order commanding the attorney for plaintiffs al-Haramain et. al to file a motion for summary judgement. Hot off the press, the motion was filed minutes ago, and it is a stunning demonstration of just how disingenuous and two faced President Obama and his administration have been on the seminal issues of warrantless wiretapping, protection of Constitutional rights, transparency and accountability.

The first words in the main body of the motion are a stark reminder to President Obama and Attorney General Eric Holder of the very words and promises they have spoken in the past on the issue of illegal wiretapping:

“Warrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional.”
President Barack Obama, December 20, 2007

“We owe the American people a reckoning.”
Attorney General Eric Holder, June 13, 2008

Apparently those words only were operative during the election, because that sure is not what Obama and Holder are saying and doing now. Instead, in pretty much as big of a Constitutional about face as is imaginable, Obama has decided to turn his back on his words and promises and throw his lot in with Bush and Cheney by asserting state secrets to protect the government from inquiry and accountability on its illegal and unconstitutional acts. It is not radical left wing bloggers saying that, it is distinguished US Senator Russell Feingold:

Of State Secrets, he said the Administration’s repeated assertion of State Secrets in litigation was reminiscent of the Bush Administration. He alluded to the cases before Vaughn Walker, and complained that the invocation of State Secrets would prevent Americans from finding out what really went on with the warrantless wiretap program

Senator Feingold is exactly right in his quote. The Ninth Circuit Court of Appeals has also slapped Obama hard on his continuation of the Bush/Cheney policy. And lest there be any illusion that Bush wiretapping program was legal, the following uncontroverted facts from the motion for summary judgment dispatch that notion:

On May 15, 2007, in testimony before the Senate Judiciary Committee, and on May 22, 2007, in written answers to follow-up questions by Senator Patrick Leahy, former Deputy Attorney General James B. Comey made the following statements demonstrating that defendants knew the warrantless surveillance program was unlawful yet continued it for several weeks in 2004 without the DOJ’s approval:

• As of early March of 2004, Comey and Attorney Read more →

Eric Holder Demagogues Hate Crimes

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graphic by solophisticwhimseys

graphic by solophisticwhimseys

Eric Holder can’t seem to do squat for transparency, privacy, accountability or a plethora of other ills carried over from the Bush/Cheney Administration, but he is concerned that we need more hate crime laws:

"Over the last several weeks, we have witnessed brazen acts of violence, committed in places that many would have considered unthinkable," Holder told the Washington Lawyers Committee for Civil Rights and Urban Affairs.

He cited separate attacks over a two-week period that killed a young soldier, an abortion provider and a guard at the U.S. Holocaust Memorial Museum.
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In order to stop that violence, he said, Congress should past an updated version of hate crimes legislation, in order to more effectively prosecute those who commit violent attacks based on gender, disability, or sexual orientation.

Yeah, that bunk ought to really stop Tiller’s killer, the Arkansas recruiting center shooter and the von Brunns of the world from committing murders when that piddly old first degree murder capital offense with the death penalty couldn’t. Okay, I want to be completely honest, the District of Columbia does not have the death penalty, but it certainly has life in prison available for the offense of premeditated murder. Both Kansas and Arkansas, the locations of the other two heinous crimes, do indeed have the death penalty for such offenses. What exactly does Eric Holder think the "hate crimes" he is demagoguing about are going to do for deterrence that the death penalty or life in prison won’t?

I have a problem with "hate crime" laws. We already have laws for assault and battery, murder, intimidation etc. The same conduct, and level of conduct, should not have different laws and heightened penalties because it is targeted to a minority or other protected group. Why is the assault of a black worth more than an assault on on a white? Why is an assault on a gay man any more heinous than an assault on a straight? Why is one group of human beings entitled to more protection under the law than another? Yet, that is exactly what hate crime legislation does. This really flies in the face of the quintessential Constitutional and founding concepts of equal protection, fundamental fairness and all men being created equal.

The Supreme Court disagrees, but that is my take. And no matter what your view, I would argue that Eric Holder and the United States Department of Justice have far more important tasks to attend to right now, and they have been failing miserably on most.

Read more →

Court Allows Padilla Suit Against Yoo To Proceed

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There was a significant new opinion released in the NDCA late Friday (h/t Lindy and Fatster) in the case of Jose Padilla v. John Yoo. The decision is devastating to Yoo and to the thought by the Obama Administration that the American legal system is going to blithely allow them to simply "move forward" and leave behind, and out of sight, the malevolence, malfeasance and depravity of senior Bush/Cheney legal officials in relation to their torture regime.

Yoo might be having a bad day when a Federal judge starts his analysis of your immunity claim by citing Alexander Hamilton from the Federalist Papers. And that is exactly what Judge Jeffrey S. White of NDCA District Court has done:

[War] will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free. [The Federalist No. 8, at 44 (Alexander Hamilton) (E.H. Scott ed., 1898).]

First, a little background is in order. The plaintiff is Jose Padilla, an American citizen arrested with great fanfare on May 8, 2002, on a material witness warrant, by the Bush Administration as being a "dirty bomb" suspect. As the "material witness" warrant was a sham, Bush (through Rumsfeld) quickly designated Padilla an "enemy combatant" and placed him in the custody of the Department of Defense, the military, and locked him up indefinitely in the US Naval brig in Charleston, South Carolina. Padilla was detained without being charged, was subjected to extreme isolation, including isolation from both counsel and from his family, and was interrogated under threat of torture, deportation and even death. He was placed in solitary confinement in a tiny cell in an otherwise empty wing of the military brig. Padilla alleges that he was “subjected to a systematic program of unlawful interrogation methods and conditions of confinement, which proximately and foreseeably caused him to suffer extreme isolation, sensory deprivation, severe physical pain, sleep deprivation, and profound disruption of his senses.

The defendant is the notorious John Yoo, Bush torture lawyer extraordinaire. Yoo, of course, is currently a law professor at the University of California Berkeley and was, at the times material to the complaint, Deputy Attorney General in the Office of Legal Counsel for the Bush/Cheney Administration. Padilla states, Read more →

Obama’s Cairo Speech

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graphic by Allposters.co.uk

graphic by allposters.co.uk

For all the blistering that I, and many others here, give to Obama for his continuation of the Bush/Cheney duplicity on wiretapping, privacy, torture and Executive Branch primacy issues, there are similarly a great many areas in which he is so many light years ahead of where we have been moribund for the last eight years that it is hard to remember we are still in the same galaxy. This morning’s speech in Cairo was one of those moments driving home the difference.

Spencer has posted the full text of the speech, and some good comment. Click the link and read the full text of the speech, it is well worth it.

It was a remarkable speech. This is a not just a speech that George Bush would not have given, but a speech he functionally could not have given; even with wordsmith speechwriters and handlers, he simply doesn’t have the intellectual depth, greater worldview or oratorical skill to have pulled off what Obama did. If there is a hope for peaceful and productive coexistence with the Islamic world, and peace in the middle east, this speech will be the first linchpin of Obama’s effort in that regard.

He was visionary:

No single speech can eradicate years of mistrust, nor can I answer in the time that I have all the complex questions that brought us to this point. But I am convinced that in order to move forward, we must say openly the things we hold in our hearts, and that too often are said only behind closed doors. There must be a sustained effort to listen to each other; to learn from each other; to respect one another; and to seek common ground. As the Holy Koran tells us, “Be conscious of God and speak always the truth.” That is what I will try to do – to speak the truth as best I can, humbled by the task before us, and firm in Read more →

Geithner NY Fed & Congress Knew About AIG Bonuses All Along

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It is not just torture hearings on the training table this morning, there is a plateful of AIG/Bankster/Bailout fun on tap too. At 10:00 am EST, the House Oversight and Government Reform Committee will hold a hearing on “AIG: Where is the Taxpayer Money Going?”.

In advance of the big hearing, David Cho and Brady Dennis in the Washington Post have a significant article out this morning confirming what any sane mind has thought all along, namely that the government and the Fed were way deeper in the muck of the AIG bonuses, and knew full well about the issue, long before they have admitted:

Documents show that senior officials at the Federal Reserve Bank of New York received details about the bonuses more than five months before the firestorm erupted and were deeply engaged with AIG as well as outside lawyers, auditors and public relations firms about the potential controversy. But the New York Fed did not raise the alarm with the Obama administration until the end of February.

Timothy F. Geithner, who became Treasury secretary early this year, was the head of the New York Fed when it became aware of the bonus details. But his name is not among those of senior New York Fed officials mentioned in the summaries of phone calls, correspondence and other documents obtained by The Washington Post.

Those documents also illuminate who in the government, beyond the New York Fed, knew what about the bonuses at AIG’s most troubled unit, and when.
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By Sept. 29, the bonus matter first appeared on the radar of the New York Fed, which was designated as the primary contact for AIG, documents show. Senior officials from the New York Fed met with AIG officials to discuss the compensation plans in place at Financial Products, whose risky derivative contracts had brought the insurance giant to the brink of collapse.

AIG e-mailed officials at the New York Fed copies of the company’s compensation plans, which detailed bonuses and retention payments, including those at Financial Products, documents show. The issue arose in scores of meetings and conference calls over the ensuing months. AIG also disclosed its retention programs in public filings.

Weeeeeeee! Another shocking instance of gambling going on at the casino. Or not. Actually, when we first learned of the Semtex laden AIG Retention Contracts there were immediate questions as to how it could be that the Fed and the rest of government had no idea of the explosive potential. Now that we know they knew, it sure is hilarious that Treasury Secretary Tim Geithner, in mid-March 2009, tried to devise a laughably bogus plan to fix the very same problem he apparently full bore ignored in October 2008 at the previous job where he was supposedly the smartest kid in the room.

Of course, it wasn’t just the New York Fed, and their purportedly detached head, that have completely misrepresented their depth of knowledge of the pending AIG Bonus Scandal. Congress did too (and Read more →

Stressing Teh Kitty

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The bank stress test results are in! Wonderful news, the economy is totally groovy man! Well, except not. For what are being hailed as great results, there are some disturbing numbers. Said stress tests of the 19 largest U.S. banks show they will need a total of $74.6 billion to withstand a deeper recession. For some reason, the NYT seems to think this is good news:

Federal regulators told the country’s 19 largest banks that they must raise $75 billion in extra capital by November, a more upbeat verdict on the health of the financial system than the industry had feared just two months ago.

Ten of the 19 bank holding companies deemed “too big to fail” by the Obama administration will be required to raise additional capital, according to the results of the government’s stress tests, released late Thursday afternoon. But the 10 banks will have to raise much less capital than some analysts had expected as recently as a few days ago.

Citigroup must raise $5.5 billion in new capital, on top of converting $45 billion in rescue funds into ordinary stock, which would give the United States ownership of 36 percent of Citi.

Bank of America must raise $34 billion, but it is likely to resist achieving all or some of that by converting its $45 billion in bailout money into common stock. Instead, the bank is expected to fill its capital hole by selling off smaller divisions, a stake in China Construction Bank and other asset sales.

The stress tests are aimed at estimating how much each bank would lose if the economic downturn proved even deeper than currently expected. Under the worst-case scenario — an unemployment rate of 10.3 percent, an economic contraction of 3.3 percent this year and a 22 percent further decline in housing prices — the losses by the 19 banks could total $600 billion this year and next, or 9.1 percent of the banks’ total loans, regulators concluded. Losses to the banks’ loan portfolios alone could total $455 billion this year and next.

“There is a reassurance in clarity," Treasury Secretary Timothy F. Geithner said at a news briefing on Thursday afternoon.

A "reassurance in clarity". Thanks for that Mr. Geithner. Bank of America Inc – $33.9 billion; Wells Fargo – $13.7 billion, GMAC – $11.5 billion, and Citigroup Inc needs $5.5 billion. Good thing it wasn’t bad news I Read more →

9th Circuit Rejects Obama/Bush State Secrets Argument In Mohammed

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Marcy must have ESP or something, she was just talking about heinous state secrets claims earlier this morning. A three judge panel of the Ninth Circuit Court of Appeals, Chief Judge Mary Schroeder, William Canby and Michael Hawkins, has firmly rejected the vile cover up attempted against several detainees/former detainees led by Binyam Mohamed.

The full decision is here.

I would like to note two things quickly; first off this is a wonderful panel (they are all from Arizona and I have known all of them) and I really expected no less from them. Secondly, it appears from a skimming of the decision that they did not dismiss the ability of the government to assert state secrets, rather indicated the time was not ripe for it. Do not be mistaken, however, this is a big blow to the government and a win for the rule of law.

Here is the operative paragraph of the decision:

On remand, the government must assert the privilege with respect to secret evidence (not classified information), and the district court must determine what evidence is privileged and whether any such evidence is indispensable either to plaintiffs’ prima facie case or to a valid defense otherwise available to Jeppesen. Only if privileged evidence is indispensable to either party should it dismiss the complaint.

The key language here is "Only if privileged evidence is indispensable". I think in light of the process that Vaughn Walker is adopting in al-Haramain, and that has been already utilized in the DC Circuit in detainee cases, this is going to be an increasingly hard burden for the government to make. Very good news indeed.

The OLC Memos, “Erroneous and Inflammatory Assumptions,” and John Rizzo’s Lies

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In his statement on the torture memos today, Obama suggested that some of the "assumptions" about what Americans had done were wrong, and that releasing the memos would correct these "assumptions."

First, the interrogation techniques described in these memos have already been widely reported. Second, the previous Administration publicly acknowledged portions of the program – and some of the practices – associated with these memos. Third, I have already ended the techniques described in the memos through an Executive Order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.[my emphasis]

This suggests (though weakly) that the OLC memos–and not other evidence–should be taken as authoritative on the events surrounding our interrogation program.

Though, on several counts, this is not true.

The most troubling example pertains to Abu Zubaydah’s mental state before he was tortured. John Yoo (writing under Jay Bybee’s name) goes to some lengths to establish Abu Zubaydah’s sanity. After five paragraphs that basically make Abu Zubaydah out to be a self-confident stud, here’s what Yoo says about AZ’s psychological health.

According to your reports, Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from your proposed interrogation methods. Through reading his diaries and interviewing him, you have found no history of "mood disturbance or other psychiatric pathology[,]" "thought disorder[,] … enduring mood or mental health problems." He is in fact "remarkably resilient and confident that he can overcome adversity." When he encounters stress or low mood, this appears to last only for a short time. He deals with stress by assessing its source, evaluating the coping resources available to him, and then taking action. Your assessment notes that he is "generally self-sufiicient and relies on his understanding and application of religious and psychological principles, intelligence and discipline to avoid and overcome problems." Moreover, you have found that he has a "reliable and durable support system" in his faith, "the blessings of religious leaders, and camaraderie of like-minded mujahedin brothers." During detention, Zubaydah has managed his mood, remaining at most points "circumspect, calm, controlled., and deliberate." He has maintained tius demeanor during aggressive interrogations and reductions in sleep. You describe that in an initial confrontational incident, Read more →