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Hi folks, Happy Easter! It has been a pretty frustrating week on a lot of the fronts we follow here. There are far too many such weeks. Even the one piece of positive news, the reinstating of the charges against the Blackwater Nisour Square shooters, was based on a somewhat suspect decision by the DC Circuit Court and still very well may lead to another dismissal of the charges in the District Court because, quite frankly, it is probably appropriate that they be dismissed due to the monkeywrenching by the State Department and their demand for Garrity statements from the individuals involved in the shooting.

But that was the week that was, now it is Easter Sunday and it is time to relax, eat and have some fun, whether it is a religious holiday for you or just a good chance to chill. Marcy and Mr. Wheel have been enjoying the last few days by moving. You know how much fun moving is! As for myself, after an extremely busy week, the bmaz family went driveabout in Southern Arizona. Thought, just for grins, I would share a little of our trip. One of the places we went to was San Xavier del Bac Mission, which is just due south of Tucson.

A National Historic Landmark, San Xavier Mission was founded as a Catholic mission by Father Eusebio Kino in 1692. Construction of the current church began in 1783 and was completed in 1797.

The oldest intact European structure in Arizona, the church’s interior is filled with marvelous original statuary and mural paintings. It is a place where visitors can truly step back in time and enter an authentic 18th Century space.

The church retains its original purpose of ministering to the religious needs of its parishioners.

The current church dates from the late 1700’s, when Southern Arizona was part of New Spain. In 1783, Franciscan missionary Fr. Juan Bautista Velderrain was able to begin contruction on the present structure usin money borrowed from a Sonoran rancher. He hired an architect, Ignacio Gaona, and a large workforce of O’odham to create the present church.

Following Mexican independence in 1821, San Xavier became part of Mexico. The last resident Franciscan of the 19th Century departed in 1837. With the Gadsden Purchase of 1854, the Mission joined the United States. In 1859 San Xavier became part of the Diocese of Santa Fe. In 1866 Tucson became an incipient diocese and regular services were held at the Mission once again. Sisters of St. Joseph of Carondelet opened a school at the Mission in 1872. Franciscan Sisters of Christian Charity now teach at the school and reside in the convent.

Clicking on any of the images will give a full size view. The upper is obviously the outside of the mission, the middle one a view of the inside of the church portion and the final view more of a closeup of the altar area, which is simply ornate beyond description and beautiful. It is guarded by two huge golden lions on each side, although they are a bit hard to see well in the picture. San Xavier is pretty cool and just about the only place like it still standing this completely in what what was referred to in the 1600s and 1700s as New Spain.

The other completely awesome place we went was Kartchner Caverns. Kartchner Caverns State Park is about 50 miles southeast of Tucson, is only about ten miles off of Interstate 10 and is easily accessible. It is one of the most beautiful state park facilities you can imagine. Here is a wonderful history of how the cave came to be a jewel in the state park system in Arizona. One of the key players you will read about is Ken Travous, who was along with us on the tour the bmaz family took Saturday; it was really a special occasion.

In November 1974 two young cavers, Gary Tenen and Randy Tufts, were exploring the limestone hills at the base of the Whetstone Mountains. In the bottom of a sinkhole they found a narrow crack leading into the hillside. Warm, moist air flowed out, signaling the existence of a cave. After several hours of crawling, they entered a pristine cavern.

The formations that decorate caves are called “speleothems.” Usually formations are composed of layers of calcite called travertine deposited by water. The form a speleothem takes is determined by whether the water drips, flows, seeps, condenses, or pools.

Kartchner Caverns is home to:

one of the world’s longest soda straw stalactites: 21 feet 3 inches (Throne Room)

the tallest and most massive column in Arizona, Kubla Khan: 58 feet tall (Throne Room)

the world’s most extensive formation of brushite moonmilk (Big Room)

the first reported occurrence of “turnip” shields (Big Room)

the first cave occurrence of “birdsnest” needle quartz formations

many other unusual formations such as shields, totems, helictites, and rimstone dams.

The complex at Kartchner Caverns features a Discovery Center with museum exhibits, a large gift shop, regional displays, a gorgeous theater, and extensive educational information about the caverns and surrounding landscape. There are also campgrounds, hiking trails, lockers, shaded picnic areas, a deli, an amphitheater, and a hummingbird garden. It is simply an incredible experience, and I highly recommend it for anyone visiting the Southern Arizona area. Seriously cool.

So, the members of the bmaz family are back home now, the Wheels are semi-unpacked in their groovy new digs, and all are ready to eat and have happy hour. The best from all of us to all of you, the greatest readers and commenters in the blogosphere. Enjoy!

There are two key takeaways I get from this comprehensive WaPo piece on why Gitmo will never close.

First, after just one Congressman–VA’s Frank Wolf–bitched about the plan to bring innocent Uighurs to the US, the plan was shut down (apparently unilaterally, by Rahm).

With chief of staff Rahm Emanuel at the helm of the meeting, senior national security officials agreed that eight of the 17 Uighurs being held at the off-shore facility would be resettled in the United States, most in Virginia. The Chinese Muslims would be brought in two at a time; the first two to come were chosen, in part, because they could speak reasonably good English and were likely to make a good impression given the intense media attention they probably would draw.

[snip]

“They were going to show up here, and we were going to announce it,” said one senior official, describing the swift, secretive operation that was designed by the administration to preempt any political outcry that could prevent the transfer.

But before the plane could leave Cuba, word leaked to Rep. Frank R. Wolf that Guantanamo detainees were on their way to his district in Northern Virginia. Wolf, a Republican, had not been briefed on the matter by the White House, despite his history of defending the Uighur community in his district, and was infuriated by the move.

He faxed a letter to the Obama administration and released it to the news media, declaring that the “American people cannot afford to simply take your word that these detainees, who were captured training in terrorist camps, are not a threat if released into our communities.”

The outrage from a single congressman was enough to spook the Obama administration, which quickly shelved its Uighur plan. Craig as well as a current senior official and a former senior official said they don’t know who stopped the transfer.

“They did not reconvene the principals,” Craig said. “They did not have a meeting in the Oval Office to discuss this and change the direction. It just happened: ‘We’re not doing it.’ ”

In fact, the transfer was stopped by Emanuel, according to officials familiar with Emanuel’s thinking. [my emphasis]

Sort of makes you wonder who leaked the information to that scary big bad Wolf, huh? All the more interesting given that Wolf was the guy who first asked OPR to do an inquiry into John Yoo’s torture memos; you’d think you could leverage that detail.

Also, note the interesting timing: The Uighurs just lost their latest attempt of an appeal to SCOTUS. So now they’re stuck so it’s okay to leak this information to the WaPo for a score-settling article?

The more important news, though, is that back in April 2009, Obama learned that there was real evidence on just dozens of the Gitmo detainees.

In late April, Obama heard some jarring news during a Situation Room meeting with the interagency task force reviewing the case of every detainee at Guantanamo.

The president asked Matthew G. Olsen, the Justice Department lawyer heading the task force, approximately how many Guantanamo detainees could be prosecuted, according to administration officials.

Probably fewer than 20, Olsen said.

[snip]

White House officials were in such disbelief that they asked Justice Department participants to write up a memo explaining exactly why they couldn’t bring more of the men to trial. In many cases, the intelligence gathered on the men was not court-worthy evidence.

Now, you’d think a lawyer would conclude from the fact that there was no “court-worthy evidence” on the majority of men held in Gitmo that something was wrong with the selection process of those in Gitmo. You’d think that would provide an opportunity to pivot and level with the American people about what really went into the collection of a bunch of men turned over for bounty. You’d think that the President would have dealt with the underlying issue: that we had invented excuses to hold many of the men in Gitmo, or tortured excuses out of the others.

But instead, Obama decided to champion indefinite detention.

Indefinite detention of these men against whom we didn’t–and in most cases, still don’t–have court-worthy evidence.

Read the whole article. It describes how fear and Rahm’s bureaucratic maneuvering led the Administration to completely cave on one of their earliest promises.

Yesterday, Michael Whitney pointed out how irresponsible it was for the ultimate commander of all the people who will decide Bradley Manning’s innocence or guilt to state publicly, before his trial, that “he broke the law.” But there was something else wrong with it. As transcribed by the UK Friends of Bradley Manning, Obama said,

OBAMA: So people can have philosophical views [about Bradley Manning] but I can’t conduct diplomacy on an open source [basis]… That’s not how the world works.

And if you’re in the military… And I have to abide by certain rules of classified information. If I were to release material I weren’t allowed to, I’d be breaking the law.

We’re a nation of laws! We don’t let individuals make their own decisions about how the laws operate. He broke the law.

[Q: Didn’t he release evidence of war crimes?]

OBAMA: What he did was he dumped…

[Q: Isn’t that just the same thing as what Daniel Ellsberg did?]

OBAMA: No it wasn’t the same thing. Ellsberg’s material wasn’t classified in the same way. [my emphasis]

But of course, Presidents (and some Vice Presidents) actually don’t have to “abide by certain rules of classified information.” As explained by John Rizzo in the context of the Obama Administration’s leaks to Bob Woodward, they can and do insta-declassify stuff for their own political purposes all the time. They can do it to make the President look important; they can do it to lie us into an illegal war; they can do it to ruin the career of someone who might expose the earlier lies. (Steven Aftergood and Eugene Fidell explain the legal reason this is true for the Politico.)

The way secrecy in this country works is insidious not just because the government prevents citizens from learning the things we as citizens need to know to exercise democracy, but also because the President and other classification authorities can wield secrecy as an instrument of power, choosing to release information they otherwise claim is top secret when it serves their political purpose. As I pointed out last year, this power even extends to information about whether or not the President has approved assassinating an American citizen.

Less than a month ago, the Obama Administration told a judge they didn’t have to–couldn’t–tell a judge their basis for killing a US citizen. Instead, they invoked state secrets, claiming (among other things) they couldn’t even confirm or deny whether they had targeted Anwar al-Awlaki for assassination.

Yet this came after one after another Obama Administration official leaked the news that al-Awlaki had been targeted, and after they had obliquely confirmed that he was. The Administration can leak news of this targeting all it wants, apparently, but when a US citizen attempts to get protection under the law, then it becomes a state secret.

There’s a lot of other reasons why this President’s claim that “we are a nation of laws!” is utterly laughable, from his Administration’s refusal to prosecute torture or bank fraud to its efforts to prevent former officials from doing time for breaking the law.

We are not, anymore, a nation of laws. The Constitutional Professor President has institutionalized the efforts W and Cheney made to make sure that remains true.

But one of the ways our lawlessness most disproportionately works against the citizens of this country is the government’s abuse of secrecy.

On December 31, 2009 DC District Judge Ricardo Urbina dismissed the indictment against five Blackwater defendants involved in what is commonly referred to as the Nisour Square shootings occurring on September 16, 2007. Urbina’s decision was 90 pages in length and was further supported by a three week long Kastigar hearing in his court October of 2009. A Kastigar hearing is an evidentiary inquiry based upon Kastigar v. United States, 92 S. Ct. 1653 (1972), “where a party has been compelled to relinquish his Fifth Amendment right against self-incrimination in reliance on the government‘s promises of immunity, the government bears the―affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.”

Today, in a surprising unanimous decision, the DC Circuit Court of Appeals overturned Urbina, reinstated the case against four of the five original defendants (the prosecution had voluntarily dismissed Defendant Slatten previously) and remanded the case back to District Court for further proceedings. Here is how Reuters described the ruling:

The five guards were charged with 14 counts of manslaughter, 20 counts of attempt to commit manslaughter and one weapons violation count over a Baghdad shooting that outraged Iraqis and strained ties between the two countries.

The shooting occurred as the private security firm’s guards escorted a heavily armed four-truck convoy of U.S. diplomats through the Iraqi capital on September 16, 2007. The guards, U.S. military veterans, were responding to a car bombing when gunfire erupted at a crowded intersection.

U.S. District Judge Ricardo Urbina ruled in December 2009 that prosecutors violated the defendants’ constitutional rights and the case was tainted by use of statement the guards made to State Department investigators under a threat of job loss.

The appeals court reversed that ruling that the indictment of the guards had been improperly obtained through the use of their compelled statements. It ruled Urbina wrongly interpreted the law.

The appeals court sent the case back to Urbina to determine what evidence, if any, the government presented had been tainted and whether it was harmless.

The public version of the decision is here however, there is also a sealed classified version containing additional material.

The first thing to consider here is the standard of review the Circuit Court used in analyzing the appeal, because there were intermixing of factual and legal findings inherent in the Kastigar process, the court reviewed for clear error:

We review the district court’s findings that the government used a defendant’s immunized statement for clear error, United States v. North, 910 F.2d 843, 855 (D.C. Cir. 1990) (“North I”), a standard that is met for any finding that was “induced by an erroneous view of the law,”

In a nutshell, what that means is that the appellate court had to give strong deference to the findings by the trial court. In spite of this deference still unanimously blew Judge Urbina’s findings straight out of the water. Honestly, the abuse of the Garrity letter admissions by the government was serious, and I thought there was close to no chance Urbina’s decision would be reversed. Boy was I wrong.

The circuit Court did not disagree with Urbina as to the controlling authority determinative of the case, so much as take issue with how far in examining individual items of evidence, for each individual defendant, on a piece by piece basis, Urbina went. They Circuit court did not think Urbina went far enough:

In building a case against a defendant who received use immunity for his statements, the government must prove, by a preponderance of the evidence, that “all of the evidence it proposes to use was derived from legitimate independent sources.” North I, 910 F.2d at 854 (quoting Kastigar, 406 U.S. at 461-62, internal quotations omitted). As the district court observed, proof that a witness was “never exposed to immunized testimony” or that the investigators memorialized (or “canned”) a witness’s testimony before exposure, Slough, 677 F. Supp. 2d at 132 (citing North I, 910 F.2d at 872), would obviously satisfy the requirement. But a failure by the government to make either showing does not end the district court’s inquiry. North I requires the court to parse the evidence “witness-by-witness” and “if necessary, . . . line-by- line and item-by-item,” 910 F.2d at 872, and to “separate the wheat of the witnesses’ unspoiled memory from the chaff of [the] immunized testimony,” id. at 862. This sifting is particularly important in cases where, as here, a witness was exposed to a defendant’s immunized statement but testifies to facts not included in that statement.

….

First, the district court erred by treating evidence, including the testimony of Frost, Murphy, Ridgeway and the Iraqi witnesses, and the Frost journal, as single lumps and excluding them in their entirety when at the most only some portion of the content was tainted—it made no effort to decide what parts of the testimony or the journal were free of taint.

Without directly saying it, the Circuit Court also seemed to be of the opinion that Urbina did not place enough of a burden on the defendants and their claims of tainted evidence. I think the Supreme Court may have an issue with this implication, although it does not appear critical to the decision.

Second (and closely related), the district court erred by failing to conduct a proper independent-source analysis as required by Kastigar, ….. Where two independent sources of evidence, one tainted and one not, are possible antecedents of particular testimony, the tainted source’s presence doesn’t ipso facto establish taint.

Basically, the Circuit Court thought Urbina was too quick to judge derivative evidence tainted and did not show his work sufficiently in getting there. Quite frankly, I disagree, I found Urbina’s decision quite sound. I have no desire to have the Blackwater malfeasants walk free, but from a due process analysis, I thought, and still do, that such was the proper remedy. Urbina was right, the case needed to be dismissed, as unpopular as that is to say.

The last major area the court went into was cross tainting between each of the defendants’ statements:

This takes us to a fourth systemic error. To the extent that evidence tainted by the impact of one defendant’s immunized statements may be found to have accounted for the indictment of that defendant, it does not follow that the indictment of any other defendant was tainted. The district court assumed the contrary. Slough, 677 F. Supp. 2d at 166 & n.66. Although the prosecution presented a single indictment against all five defendants, each defendant was charged individually and therefore the presence, extent and possible harmfulness of the taint must be assessed individually.

What the court said here is that each defendant’s statement may be improper evidence to use against him, but it is prohibitively okay against his co-defendant. This is a commonly applied rule in criminal evidence suppression determinations, but it is heinous and pernicious. In the Nisour Square case, the defendants were so jointly involved and the evidence so intermixed that this theory should have no application; yet here the Circuit Court is straining to apply it. It is disgusting.

We thus vacate and remand the case for the court to determine, as to each defendant, what evidence—if any—the government presented against him that was tainted as to him, and, in the case of any such presentation, whether in light of the entire record the government had shown it to have been harmless beyond a reasonable doubt.

So, the case is going back to DC District Court for further proceedings; i.e a more detailed and individually centered analysis of the prosecution’s evidence for taint. Ricardo Urbina went senior status as of January 31 of this year, but I would assume he will get the case back anyway. The prosecution may be back on for now, but I would not be surprised in the least to see Urbina simply plug his previous beliefs and findings into the newly ordered specific analysis framework delineated by the Circuit Court. In short, my bet is the case gets dismissed again. We shall see.

It has now been, as noted at FDLNews by David Dayen, one year from the date the British Petroleum wellhead at Macondo blew out, thus killing 11 workers on the TransOcean platform known as “Deepwater Horizon” in the Gulf of Mexico.

These are names you should know. These are the first, and most blatant, victims of the Deepwater Horizon explosion at Macondo. Their actual names do not quickly come to the tongue, nor are they so easy to find. In fact, you know what I had to do to find them? Go through the same process this guy did. And, still, the first link I found them at was his post. Here is a taste of his disgust, and I join it wholeheartedly:

I had to search for those 11 names; most of you may not know them. We didn’t start a war over them, they’re not under any suspicion of anything, not a board of directors of some evil corporate cabal; on the contrary, many would say they are victims of it.

….

But I found them in a story about how frustrated the families are a year later, how frustrated the region is and how all this pep talk about how things are recovering just aren’t true. And there’s plenty of stories about how BP claims to have had its best year ever in terms of safety, yet it caused the worst oil spill in history?? Lots of stories about how the CEO got a million dollar retirement package and bonuses given here and there and it’s enough to make one puke crude, much like a lot of the Gulf remains doing.

First of all, to the families, these people are not “presumed” dead Wikipedia. I know it may be a legal thing, bodies never found, no conclusive evidence, blah blah. They were killed, soldiers in the energy wars killed by friendly fire.

….

…victims of our wanton unbridled lust for oil and the greed of those that produce it. They are dead, gone forever, never to be seen or see their loved ones or live to any more potential; they are gone.

And their deaths appear to have meant little to the world. Nor did the subsequent deaths of everything from thousands of dolphins to countless species of marine life; from the deaths of the livelihoods of so many in the region to the loss of countless ecosystems.

Truer words have likely never been spoken. And that is where I want to pick up.

What could have been done to address these heinous human and ecological wrongs that has not?

Everything.

Because nothing, not diddly squat, has been done. And if the corporate powers that be in this country, and the political puppets who serve them, including Barack Obama, Eric Holder and the currently politicized Department of Justice, have anything to say about it (and they have everything to say about it) nothing significant is going to be done about BP, TransOcean, Halliburton and the Gulf tragedy, or anything related, in the future.

Like the craven and dishonest shell game that has been played by the current administration with regard to torture and destruction of evidence, the US government appears to simply be determined to shine this on with the bare minimum of faux accountability and disingenuous rhetoric to soothe the perturbed masses and maintain status quo with their partners in corporate/political domination of the American populous. That is clearly who they are, and quite apparently who we have become.

So, what could have been the process? Well, that is pretty easily delineated. In fact, I set it out definitively on May 28th of last year. Please refer to the link to the post for a complete list of the factors, nee elements of the crimes, that were already present a year ago. It is startling to realize what was already known then; especially when compounded with what is known now. The only difference today is that we can definitively add the United States government, and the administration of Barack Obama, to the queue of “Criminals in the Gulf“.

Last May I wrote:

As a direct and proximate result of the above described reckless, wanton, willful, and grossly negligent conduct, eleven men are dead and the biggest environmental disaster in history has been unleashed on the fragile and critical Gulf of Mexico, threatening the lives and livelihoods of untold numbers of American families. Some of the toxic death foisted upon the environment cannot even be seen because it lurks in deep giant underwater plumes miles wide by miles long.

The applicable criminal provisions of the Clean Water Act are set out in 33 USC 1319….The Federal criminal provisions for negligent and reckless homicide (statutorily known as manslaughter) are contained in 18 USC 1112….

….

It is hard, if not impossible, to find any way that the conduct of both BP and its key decision making officials responsible for the Deepwater Horizon catastrophe, and corresponding mass loss of life, do not fit within the ambit of the above crimes. Why has the Obama Administration and its DOJ not acted? Why is there not a dedicated criminal investigation open and securing critical evidence?

As best as can be ascertained, the only real DOJ Main assets sent to the Gulf scene are Tony West and Ignacia Moreno, the talking heads for the Civil Division and Environmental Divisions respectively, a tasking that screams of a total coddle the petroleum industry and manage the fallout move, not a get tough criminal consideration.

The DOJ could also be using the Texas Refinery Fire probation case that BP is still under the court’s jurisdiction for from their 2007 felony conviction as an easy investigatory and prosecutorial tool; but the DOJ will not even address the thought, much less act on it.

Why?

The Obama Administration and its DOJ owes the citizens a better effort than they have mustered to date. It is funny they are out trying to prosecute Guantanamo defense attorneys for doing their jobs and are still hell bent to persecute inconsequential marijuana crimes, but have no burning desire to go hard after BP, the biggest environmental criminal in history. How can that be?

In addition to the above manslaughter and general CWA crimes clearly present, 33 USC 1319 contains the criminal provision of the Clean Water Act. Specifically, 33 USC 1319(c)(1)(A) and 1319(c)(2)(A), through their reference to multiple other provisions, but most notably 33 USC 1312, make the toxic contamination of navigable waterways and wetlands a crime.

So, what has transpired in the way of criminal prosecution now that we have reached the one year anniversary of Macondo, the Mouth of Hell, rearing its head and opening its maw?

Not a thing. The US government and the Administration/DOJ of Barack Obama is just stringing it out and propping up the status quo and corporate interests such as BP. Seriously, I have been in the criminal law business for two and a half decades, and you literally almost have to fight to not be prosecuting BP for the criminally negligent, if not recklessly indifferent, deaths of the eleven lost souls on Deepwater Horizon.

Like with torture and the financial meltdown, the criminal activity is so obvious you have to consciously want to “look forward” and want to not prosecute in order to not do so. And that is, apparently, just exactly the case with the Obama Administration and the Holder Department of Justice to date. For the better part of a year, DOJ pitched the bogus meme there was a team working diligently on the BP Oil Spill. But that “task force” was led by Tony West and Ignacia Moreno, a couple of talking head tailored suits out of DOJ Main. Knowledgable former EPA criminal investigators pointed out early on, it seemed just for show and, sure enough, very little appears to have resulted from all those months of the DOJ Deepwater Horizon investigation. In fact, the only notable thing which appears to be resulting from the so called “criminal investigation” is that it is being used to shield and hide the real ecological destruction to the Gulf occasioned by the oil spill, such as the inexplicable and tragic dolphin deaths.

Now, to be fair, the Obama Administration, at the end of March, made another one of its patented government by press release moves by announcing they are “considering” filing manslaughter charges against BP managers. Included in the new PR push was the first official mention of using the somewhat archaic “Seaman’s Manslaughter” law, which is embodied in 18 USC 1115. In a nutshell, the Seamen’s Manslaughter statute allows the government to hold seafarers, owners of vessels, and the corporate management that controls vessels, criminally accountable for maritime accidents that result in the death of a person (Here is a pretty good paper on the statute).

Is there any reason to give the claimed new “push” by DOJ any credibility? The answer depends. Also in late March, the DOJ made a mostly ignored change in leadership on their supposed Gulf Oil Spill investigation. The investigation, the only known active part of which was done by the EPA Environmental Crimes Unit and the US Attorney’s Office in Eastern District of Louisiana, was suddenly yanked and a new “task force” formed to be specially supervised by a chap by the name of John Buretta, who is touted as a veteran criminal prosecutor. That sounds all well and good until you take a good look at what Buretta’s experience really is.

The first thing a closer inspection yields is that Buretta, while indeed having some solid prosecutorial experience, has it almost exclusively in racketeering cases in the Eastern District of New York; he made his bones on mob racketeering investigations. It is hard to see how that lends the experience, knowledge base or skill set for complex environmental crimes. People experienced with complex environmental crimes will tell you (and have told me) environmental crimes is a specialized area, and that a rackets prosecutor from Brooklyn is a severe fish out of water for the Gulf Oil Spill case.

Understandably, the decision to move Buretta in and remove Howard Stewart, the Senior Environmental Crimes Attorney, has generated a high level of frustration in the Environmental section. Behind the scenes, the EPA Criminal Investigative Division (CID) staff believe it is a huge blow because it signals the environmental crimes won’t be dealt with seriously. Furthermore, the EPA criminal investigators have claimed from the start they were being micromanaged by senior political appointees in Washington and not allowed to conduct thorough investigations, just as feared would be the case by the former EPA Criminal Dvision agents when the investigation started. The significance of this marginalization of the environmental unit to the environmental crimes will become clear below.

The other thing that jumps out is the way the Obama Administration has turned their PR play on the matter – it smacks of the same patently dishonest and craven play they ran to slough off any meaningful prosecution of torture and destruction of the critical torture tapes by high level CIA officers, almost certainly working in concert with senior Bush Administration officials. The Buretta announcement appears to have been rolled out by Carrie Johnson, formerly of the Washington Post and now at NPR, and historically a trusted useful tool for the DOJ when they want to want to launder bullshit to the press.

You might remember Johnson from the almost identical type of reporting she did for the DOJ when they were pulling the wool over the public’s eyes regarding the whitewash of the torture tape investigation. When this blog and a few others were making big noise on how the DOJ was cravenly running out the clock on the torture tape destruction prosecutions, the DOJ again turned to Johnson to soft sell the fact they, and their “special prosecutor”, John Durham (who had no torture nor national security experience, but was, yes, another DOJ mob specialist), had intentionally run out the clock on the prosecutions.

Johnson, of course, came through for DOJ with the requisite con job that it was all necessary and there still might be accountability, which was a total joke. And now here is Johnson again carrying the water for the DOJ attempt to shoehorn Buretta, yet another loyal AUSA with nothing but mob experience, but no usable experience in the field to which he is being specially assigned.

So, what does all this mean for the concept of meaningful and appropriate accountability for BP and the other criminal malefactors in the Gulf Oil Spill? The smart money is on the “nothing good” square. While the DOJ now, all of a sudden, is interested in “streamlining” the case, in actuality it likely is the path being set up for a package deal to resolve everything nice and neat so both BP and the Obama Administration can “look forward”. There are subtle tells as to where the Administration is going. The first tell is the newfound emphasis on “Seamen’s manslaughter”, in that, although it is a felony homicide provision, it only requires a showing of regular negligence, as opposed to gross negligence or recklessness under the traditional criminal homicide provisions.

And this is where the sidelining of the environmental crimes team comes into play. By only dealing in terms of regular negligence, as opposed to gross negligence, on the environmental crimes, the administration can minimize the financial penalties assessed to BP. Under the Clean Water Act, the two factors which determine the size of the financial penalty are the total amount of barrels spilled and whether the spill was the result of ordinary negligence, in which case the strict liability damages are assessed at $1,100 per barrel spilled; or “gross negligence” in which case the fine is as high as $4,300 per barrel spilled.

On the largest oil spill in history, having to pay the severely higher damages under gross negligence would be a serious blow to BP. But BP’s own disclosures reveal they are quite certain that will not occur, and there is every indication the Obama Administration intends to see it does not impose such a “hardship” on its favorite partner for military fuel purposes. Not to mention that Barack Obama is again in full campaign fundraising mode and BP is one of his biggest corporate sponsors.

The bottom line is it is a safe bet John Buretta, the rackets specialist, has been assigned to wrap up a nice tidy little package involving simple negligence across the board. It minimizes the spill penalties to BP and will allow criminal charges, if there are any individuals charged at all, to be restricted to a couple of sacrificial lambs who were calling the shots on the Deepwater Horizon rig. If I were Robert Kaluza and Donald Vidrine, the BP company men in charge of Deepwater Horizon when it blew, I would be more than a little worried about the direction this is going, because they are the obvious lambs being prepared for slaughter.

But BP itself, on the other hand, looks set up to be escorted through the process by the Administration and DOJ mostly unscathed. That is what the government does for its valued corporate partners. In fact, far from being penalized and/or debarred from federal contracting as it should be, as Jason Leopold reported Wednesday, BP is being given sweetheart no-bid contracts by the Administration.

Maybe a rackets prosecutor is the right guy after all, because this is quite a racket being run between the US government and BP. A year after Macondo the Mouth of Hell roared, and it is business as usual. Who could have predicted?

[Graphic – BP: Broken Promises. Logo design by Foye 2010 submitted as part of the Art For Change BP Logo Redesign Contest and used with permission]

Protestors sang their displeasure to Pres. Obama at a Bay Area fundraiser. (via yfrog)

At today’s presidential fundraiser in San Francisco, several attendees sang a song to Obama protesting Bradley Manning’s treatment. (From the White House pool report)

Mr. Obama was in the middle of his remarks when a woman in a white suit stood up and said, Mr. President we wrote you a song. POTUS tried to get her to wait until later, but she persisted and the table of 10 broke into a song that pointed out they’d just spent $5,000 donating to his campaign and went on to protest the treatment of Pfc. Bradley Manning.

The woman stayed standing as they sang. Mr. Obama looked to Ms. Pelosi and asked, Nancy did you do this? Ms. Pelosi had a look on her face, as she stared at the singing group, that definitely said she did not.

[snip]

The 10 singers then passed around 8.5×11 signs that said “Free Bradley Manning” or had a photo of him.

Then the woman in the white suit stripped off her jacket to reveal a black T-shirt that said Free Bradley Manning, with an image of him.

“We paid our dues. Where’s our change?” they sang.

USSS and WH staff had moved near the table at this point. The woman was escorted out. Two others left on their own. (The rest stayed and applauded at the end of POTUS’s speech.)

“That was a nice song,” a displeased Mr. Obama said.

“Now where was I?” POTUS asked.

As was indicated by that song, “Over the last 2 and a half years, change turned out to be tougher than we expected,” POTUS said.

Also, WTF? Why is Obama’s first instinct to blame Pelosi for this? Granted, Pelosi often takes stands in support of political prisoners, but to suggest a master fundraiser like Pelosi would embarrass the President at a fundraiser like this is just a real misunderstanding of her. (Even if it were only a lame attempt at deflection/humor, it is disrespectful and a tad dishonest.)

Not to mention the suggestion that people, particularly in liberal San Francisco, might not have the free will to craft a protest on their own.

Follow developments after the jump. . . .

Remember the Counterintelligence Field Activity (CIFA)? Here’s how I described it back in 2007.

CIFA is, along with the National Security Letters Congress is now cracking down on, probably the biggest abuse of civil rights and privacy BushCo has hatched up. It was designed to gather intelligence on threats to defense installments in the United States–to try to collect information (in the TALON database) on threatening people scoping out domestic bases. But it ended up focusing on peace activists and the lefty blogosphere’s own Jesus’ General.  70 percent of CIFA’s employees are contractors, a figure that makes it a prime candidate for politicized contracting scandal.

Among the contractors spying on Americans was MZM, one of the companies that bribed Duke Cunningham. Prosecutors in that case started investigating MZM’s CIFA contracts in May 2006. Three months after that, the top two managers at CIFA, who had directed CIFA keep sending MZM contracts, resigned suddenly. When DOD’s Inspector General tried to investigate CIFA in 2007, it discovered (it claimed) that the entire CIFA database had been destroyed in June 2006, just as prosecutors were closing in on those contracts.

Later, in 2008, just as CIFA was claiming it couldn’t publicly reveal its unclassified contracts, we learned that Stephen Cambone (who had led one of the inquiries into CIFA), had won a contract from it, sort of a payoff for not finding anything, I guess.

Later that year, DOD “disestablished” CIFA.

Or rather, they renamed it, calling it the Defense Counterintelligence and Human Intelligence Center. Then, last year, we learned that database DOD claimed had been destroyed in 2006 really hadn’t been, and CIFA 2.0 was getting back in the business of keeping a database of information on big threats to the US like Quakers and bloggers.

The Defense Intelligence Agency wants to open a new repository for information about individuals and groups in what appears to be a successor to a controversial counterintelligence program that was disbanded in 2008.

The new Foreign Intelligence and Counterintelligence Operation Records section will be housed in DIA’s Defense Counterintelligence and Human Intelligence Center, or DCHC, formed after the demise of the Counterintelligence Field Activity, or CIFA, according to an announcement that appeared Tuesday in the Federal Register.

The “activity” was disbanded, but evidently not its records database, which seems to be headed to the new unit. One of the criticisms of CIFA was that it vacuumed up raw intelligence on legal protest groups and individuals from local police and military spies.

When the DCHC was launched in 2008, the Pentagon said “it shall NOT be designated as a law enforcement activity and shall not perform any law enforcement functions previously assigned to DoD CIFA.”

Why the new depository would want such records while its parent agency no longer has a law enforcement function could not be learned. Not could it be learned whether the repository will include intelligence reports on protest groups gathered by its predecessor, CIFA.

The only thing left, at that point, was to figure out what defense contractor was getting rich spying on American citizens.

The answer? Lockheed Martin.

Lockheed Martin has openings for talented and motivated professionals in the counterintelligence (CI) field to be part of an evolving and highly specialized team that will provide direct support to the Defense Intelligence Agency’s (DIA) Defense Counterintelligence and Human Intelligence Center (DCHC).

The team Lockheed Martin is assembling a team which will function in CI areas such as: force protection; support to Joint Terrorism Task Force (JTTF); CI in Cyberspace; research, development and acquisitions; critical infrastructure protection; CI support to Offensive CI Operations; analysis & production (A&P); collections; campaigns; policy; assessments; TSCM; security; information assurance, and Enterprise governance support (administrative).

Not only is the entire concept wrong, using contractors to spy on Quakers and bloggers. Not only is it especially troublesome that Lockheed–a company with close ties to NSA–is doing this work (which would make it easy for reports from physical surveillance to migrate into the signals surveillance NSA does). But note what else is now included in CIFA 2.0: “CI in Cyberspace.” That is, Lockheed with its close ties to NSA is now in charge of spying on those claimed to present an online counterintelligence threat to the United States. And maybe doing things like hacking a media site to try to exercise illegal prior restraint.

I wanted to put a few details about what happened to Bradley Manning in January together.

The other day Manning’s lawyer, David Coombs, revealed he had been about to file a habeas petition when DOD suddenly decided to move Manning to Fort Leavenworth (where he arrived last night). At issue was a meeting that occurred on January 13:

The defense recently received reliable reports of a private meeting held on 13 January 2011, involving high-level Quantico officials where it was ordered that PFC Manning would remain in maximum custody and under prevention of injury watch indefinitely.  The order to keep PFC Manning under these unduly harsh conditions was issued by a senior Quantico official who stated he would not risk anything happening “on his watch.”  When challenged by a Brig psychiatrist present at the meeting that there was no mental health justification for the decision, the senior Quantico official issuing the order responded, “We will do whatever we want to do.”

That meeting happened just five days before the guards harassed Manning and Brig Commander James Averhart decided to play god with him, according to the chronology laid out in Manning’s Article 138 complaint. Here’s how Manning described the guards’ petty bullying.

On that date, I was pulled out of my cell for my one hour of recreation call. When the guards came to my cell, I noticed a change in their usual demeanor. Instead of being calm and respectful, they seemed agitated and confrontational. Also, instead of the usual two to three guards, there were four guards. Almost immediately, the guards started harassing me. The first guard told me to “turn left.” When I complied, the second guard yelled “don‟t turn left.” When I attempted to comply with the demands of the second guard, I was told by the first, “I said turn left.” I responded “yes, Corporal” to the first guard. At this point, the third guard chimed in by telling me that “in the Marines we reply with „aye‟ and not „yes.‟” He then asked me if I understood. I made the mistake of replying “yes, Sergeant.” At this point the forth guard yelled, “you mean „aye,‟ Sergeant.”

After Manning returned to his cell from recreation, Averhart came to his cell, declared he was, for all practical purposes, Manning’s God. Then, he ordered Manning be stripped and put on suicide watch.

About 30 minutes later, the PCF Commander, CWO4 James Averhart, came to my cell. He asked me what had happened during my recreation call. As I tried to explain to him what had occurred, CWO4 Averhart stopped me and said “I am the commander” and that “no one could tell him what to do.” He also said that he was, for all practical purposes, “God.” I responded by saying “you still have to follow Brig procedures.” I also said “everyone has a boss that they have to answer to.” As soon as I said this, CWO4 Averhart ordered that I be placed in Suicide Risk Status.

Admittedly, once I heard that I would be placed under Suicide Risk, I became upset. Out of frustration, I placed my hands to my head and clenched my hair with my fingers. I did yell “why are you doing this to me?” I also yelled “why am I being punished?” and “I have done nothing wrong.” I then asked CWO4 Averhart “what have I done to deserve this type of treatment?”

CWO4 Averhart did not answer any of my questions. He instructed the guards to enter my cell and take all my clothing. At first I tried to reason with CWO4 Averhart by telling him that I had been a model detainee and by asking him to just tell me what he wanted me to do and that I would do it. However, I gave up trying to reason with him once the guards entered my cell and ordered me to strip. Instead, I lowered my head and starting taking off my clothes.

And these events–the meeting on January 13 and the abuse of Manning on January 18–took place between two interesting observations from military psychiatrists. Whereas most of the 16 entries recording Brig Psychiatric personnel recommending Manning be removed from Prevention of Injury (POI) take a standard form, two entries take a different form. First, the January 6 entry noted that on December 23 Brig Psychiatrist Captain Hocter recommended Manning be removed from POI “from a psychiatric standpoint.”

SND was evaluated by Capt Hocter on 23 December 2010, and although further mental evaluation was deemed necessary, SND was recommended to be removed from POI classification from a psychiatric standpoint.

On January 14, the day after the meeting described by Coombs, there’s another standard entry.

SND was evaluated by the Brig Psychiatrist on 14 January 2010 and recommended to be removed from POI.

But then on January 28, there’s another irregular entry.

SND was evaluated by Col Malone on 21 January 2011 and, although further mental evaluation was deemed necessary, SND was recommended to be removed from POI classification from a psychiatric standpoint.

With the caveat “from a psychiatric standpoint,” both Hocter, in December, and Malone, in January, seem to be emphasizing that the POI decision had nothing to do with Manning’s psychological health.

The Article 138 complaint doesn’t explain who Colonel Malone is, though it’s notable he outranks Hocter, suggesting Hocter brought in a superior to conduct an evaluation of Manning after repeatedly recommending that Manning be removed from POI. And note, we know that Manning was removed from the suicide watch Averhart placed him under on the 18th on the 21st, suggesting Malone’s judgment may have been instrumental to getting him removed from suicide watch. (Though it’s interesting that Malone’s recommendation pertained to POI, not suicide watch.)

And that last report–the January 28 observation recording Malone’s judgment–is the last that Manning’s defense team had received by the time he wrote his complaint on March 10. Given that they received the January 28 one on February 4–that is, given that it took just a week to give them reports in the past–one wonders why they didn’t receive the reports subsequently.

So it seems that Hocter was already concerned about the fact Manning remained on POI for no good psychiatric reason back in December. Shortly thereafter, a psychiatrist and a top Quantico official had a conflict over Manning’s treatment. The official said, “we’ll do whatever we want.” And just days later, the guards subject Manning to some abusive bullying, giving Averhart the excuse to put him on suicide watch and take his clothes. At which point it appears a more senior psychiatrist may have gotten involved.

Now, Coombs says his habeas petition–his threat to expose more about this sequence–is what convinced DOD to move Manning so quickly. Given how the January 13 meeting seems to lead right into Manning’s forced nudity on January 18, I can see why DOD might want to avoid more details becoming public.

DOD has filed charges against Abd al Rahim al-Nashiri, the alleged mastermind of the USS Cole bombing. (h/t jl)

The Department of Defense announced today that military commissions prosecutors have sworn charges against Abd al Rahim Hussayn Muhammad al Nashiri of Saudi Arabia.

The chief prosecutor has recommended that the charges against Nashiri be referred as capital. Capital charges may only be pursued with the convening authority’s approval.

The charges allege that Nashiri was in charge of the planning and preparation for the attack on USS Cole (DDG 67) in the Port of Aden, Yemen, on Oct. 12, 2000. The attack killed 17 sailors, wounded 40 sailors, and severely damaged the ship by blowing a 30-foot by 30-foot hole in her side. The charges also allege that Nashiri was in charge of planning and preparation for an attempted attack on USS The Sullivans (DDG 68) as that ship refueled in the Port of Aden on Jan. 3, 2000.

Now, aside from the question of whether it is illegal to target a series of military targets, I have no problem with the government finally charging al-Nashiri.

But I wonder whether the government is also, finally, going to charge the people who staged a mock execution using a power drill against al-Nashiri–basically doing the one thing even John Yoo said would be illegal? Last we heard, after all, Albert, who staged the mock execution, was training CIA officers. And Albert’s supervisor, Ron, now heads CIA’s European Division. And while the US told Spain back in March that they were still investigating, the 8 year statute of limitations on torture that occurred before January 28, 2003 would have already expired.

As with all their other torture cases, they’re just letting the statutes expire.

So congratulations, DOD, for finally charging one of the alleged worst of the worst. Now when will the government charge those who tortured al-Nashiri?

Back on March 11, in response to Jake Tapper’s question whether he agreed with PJ Crowley’s judgment that Bradley Manning’s treatment was “ridiculous and counterproductive and stupid,” President Obama said the Pentagon had assured him that the treatment met DOD standards.

Tapper: The State Department Spokesman PJ Crowley said the treatment of Bradley Manning by the Pentagon is “ridiculous and counterproductive and stupid,” and I’m wondering if you agree with that. Thank you sir.

Obama: With respect to Private Manning, I have actually asked the Pentagon whether or not the procedures that have been taken in terms of his confinement are appropriate and are meeting our basic standards. They assure me that they are. I can’t go into details about some of their concerns, but some of this has to do with Private Manning’s safety as well.

Tapper: Do you disagree with PJ Crowley?

Obama: I think I gave you an answer to the substantive issue.

But yesterday’s press conference appears to present problems for this story.

First of all, according to DOD General Counsel Jeh Johnson, the Pentagon review of whether Quantico was the appropriate facility for Manning began just a few weeks ago–so presumably, it started sometime after Obama was asked about Manning’s treatment over five weeks ago.

MR. JOHNSON: Well, again, it was a combination of reasons. We began to take a look at this a couple of weeks ago. You know, is there an alternative facility that might be better for him given the length of time he’s been in pre-trial confinement, given the length of time — in the future it looks — it looks as if he’ll be in pre-trial confinement. And we have this 706 interview of him coming up. And we decided, well, why don’t we let that happen first and then he should be transferred, so that — so that the group that interviews him, who as I understand are in the Washington area, don’t need to go out to Kansas. So we’ll do that, and then we’ll move him after that.

Q: You said — I think you said that that — I think a couple of weeks ago that (inaudible) —

MR. JOHNSON: Yes.

Q: — what triggered that?

MR. JOHNSON: Well, you know, this issue has been obviously in the media.

Under normal circumstances, I’d like to believe that we — if there were issues about whether another facility is more suitable for one of our pre-trial confinees, we would — we would take a look at that in a comprehensive joint fashion. Because this has been in the newspapers, people at our level have been involved in taking a look at that as well. And so that’s the process that began several weeks ago.

Q: So it is fair to say that media criticism about his treatment did play some role in his transfer here.

MR. JOHNSON: I wouldn’t characterize it that way. I think it is fair to say that because this case has been in the media, people at Dr. Westphal’s level and my level have been involved in this process, and that’s fair to say.

And while Johnson claims that Manning’s Quantico treatment was legal, both he and Under Secretary of the Army Joseph Westphal admit that Quantico is not appropriate for long-term pre-trial detention.

Johnson: We remain satisfied that Private Manning’s pre-trial confinement at Quantico was in compliance with legal and regulatory standards in all respects, and we salute the military personnel there for the job they did in difficult circumstances.

[snip]

MR. WESTPHAL: Let me just add to that.

I think the issue there is, we began discussing the fact that Private Manning had been at this facility now at Quantico for — at this time, over eight months, and that this is a facility really designed for — and the average stay for pre-trial is maybe two months. I don’t have all the details, but it’s a short stay. It’s not designed for these long-term situations.

Indeed, Johnson even admits it is “rare if not unprecedented” that someone would be held there for nine or ten months.

Q: What was no longer suitable at Quantico?

MR. JOHNSON: As Dr. Westphal said, Quantico is a place where pre-trial confinees reside for one month, two months, three months. It is rare if not unprecedented that somebody is there for as long as nine or 10 months.

When Obama was asked whether Manning’s treatment was appropriate, Manning had been in Quantico for almost eight months, several times longer–according to Johnson and Westphal–than appropriate for someone to be held in pre-trial detention at Quantico.

So how is it that the President of the United States stated he had been assured by DOD that Manning’s treatment was appropriate? Did the Pentagon misinform Obama? Or did the Pentagon not even review Manning’s treatment until after Obama got asked such questions and answered as if such a review had already taken place?