On the Manning Art. 32, Court Secrecy & Nat. Sec. Cases

/40 Comments/in , , , , , /by

I somehow stumbled into an article for The Nation by Rainey Reitman entitled Access Blocked to Bradley Manning’s Hearing. To make a long story short, in a Twitter exchange today with Ms. Reitman and Kevin Gosztola of Firedoglake (who has done yeoman’s work covering the Manning hearing), I questioned some of the statements and inferences made in Ms. Reitman’s report. She challenged me to write on the subject, so here I am.

First, Ms. Reitman glibly offered to let me use her work as “foundation” to work off of. Quite frankly, not only was my point not originally to particularly go further; my point, in fact, was that her foundation was deeply and materially flawed.

Reitman starts off with this statement:

The WikiLeaks saga is centered on issues of government transparency and accountability, but the public is being strategically denied access to the Manning hearing, one of the most important court cases in our lifetime.

While the “WikiLeaks saga” is indeed centered on transparency and accountability for many of us, that simply is not the case in regard to the US Military prosecution of Pvt. Bradley Manning. The second you make that statement about the UCMJ criminal prosecution of Manning, you have stepped off the tracks of reality and credibility in court reportage and analysis. The scope of Manning’s Article 32 hearing was/is were the crimes detailed in the charging document committed and is there reason to believe Manning committed them. Additionally, in an Article 32 hearing, distinct from a civilian preliminary hearing, there is limited opportunity for personal mitigating information to be adduced in order to argue for the Investigating Officer to recommend non-judicial punishment as opposed to court martial trial. That is it. There is no concern or consideration of “transparency and accountability”, within the ambit suggested by Ms. Reitman, in the least.

Calling the Manning Article 32 hearing “one of the most important court cases in our lifetime” is far beyond hyperbole. First off, it is, for all the breathless hype, a relatively straight forward probable cause determination legally and, to the particular military court jurisdiction it is proceeding under, it is nothing more than that. The burden of proof is light, and the issues narrow and confined to that which is described above. The grand hopes, dreams and principles of the Manning and WikiLeaks acolytes simply do not fit into this equation no matter how much they may want them to. Frankly, it would be a great thing to get those issues aired in this country; but this military UCMJ proceeding is not, and will not be, the forum where that happens.

Moving on, Reitman raises the specter of “the death penalty” for Manning. While the death penalty remains a technical possibility under one of the charges, the prosecution has repeatedly stated it will not be sought and, after all the statements on the record in that regard, there is simply no reason to embellish otherwise. Reitman next states:

This case will show much about the United States’s tolerance for whistleblowers who show the country in an unflattering light.

No, it most certainly will not. In fact, the Manning criminal military prosecution has nothing whatsoever to do with “whistleblowers”. Despite the loose and wild eyed use of the term “whistleblower” in popular culture, not to mention by supporters of Bradley Manning, the concept Read more →

Drone War Secrecy and Kill or Capture

/9 Comments/in , , , , , , , , , , /by

As we stand on the doorstep of President Obama signing into law the new NDAA and its dreaded controversial provisions, there are two new articles out of interest this morning. The first is an incredibly useful, and pretty thorough, synopsis at Lawfare of the new NDAA entitled “NDAA FAQ: A Guide for the Perplexed”. It is co-written by Ben Wittes and Bobby Chesney and, though I may differ slightly in a couple of areas, it is not by much and their primer is extremely useful. I suggest it highly, and it has condensed a lot of material into an easily digestible blog length post.

The second is a long read from the Washington Post on how secrecy defines Obama’s drone wars:

The administration has said that its covert, targeted killings with remote-controlled aircraft in Pakistan, Yemen, Somalia and potentially beyond are proper under both domestic and international law. It has said that the targets are chosen under strict criteria, with rigorous internal oversight.
….
“They’ve based it on the personal legitimacy of [President] Obama — the ‘trust me’ concept,” Anderson said. “That’s not a viable concept for a president going forward.”

The article goes on to state how the CIA, and the majority of voices in the White House, are fighting tooth and nail for continued utmost secrecy lest any of our enemies somehow discover we are blowing them to bits with our drones. This is, of course, entirely predictable, especially now that the former head of the CIA leads the military and the former military chief for the greater Af/Pak theater which has long been ground zero for the drone kill program, Petraeus, is the head of the CIA.

But then the Post piece brings up our old friend, the OLC:

The Justice Department’s Office of Legal Counsel has opposed the declassification of any portion of its opinion justifying the targeted killing of U.S. citizen Anwar al-Awlaki in Yemen this year. Awlaki, a propagandist for the Yemen-based al-Qaeda affiliate whom Obama identified as its “external operations” chief, was the first American known to have been the main target of a drone strike. While officials say they did not require special permission to kill him, the administration apparently felt it would be prudent to spell out its legal rationale.
….
Under domestic law, the administration considers all three to be covered by the Authorization for Use of Military Force that Congress passed days after the Sept. 11, 2001, attacks. In two key sentences that have no expiration date, the AUMF gives the president sole power to use “all necessary and appropriate force” against nations, groups or persons who committed or aided the attacks, and to prevent future attacks.

The CIA has separate legal authority to conduct counterterrorism operations under a secret presidential order, or finding, first signed by President Ronald Reagan more than two decades ago. In 1998, President Bill Clinton signed an amendment, called a Memorandum of Notification, overriding a long-standing ban on CIA assassinations overseas and allowing “lethal” counterterrorism actions against a short list of named targets, including Osama bin Laden and his top lieutenants. Killing was approved only if capture was not deemed “feasible.”

A week after the Sept. 11 attacks, the Bush administration amended the finding again, dropping the list of named targets and the caveat on “feasible” capture.

“All of that conditional language was not included,” said a former Bush administration official involved in those decisions. “This was straight-out legal authority. . . . By design, it was written as broadly as possible.”

This brings us back to the notable October 8, 2011 article by the New York Times’ Charlie Savage on his viewing of the Awlaki targeting memo relied on by the Obama White House for the extrajudicial execution of Anwar al-Awlaki. Marcy, at the time discussed the incongruity of the collateral damage issue and the fact Samir Khan was also a kill in the targeted Awlaki strike.

I would like to delve into a second, and equally misleading, meme that has been created by the self serving and inconsistent secret law Obama has geometrically expanded from the already deplorable Bush/Cheney policy set: the false dichotomy in the kill or capture element of the Read more →

DOJ Doesn’t Think Bloggers Are Media Either–and It May Use NSLs to Get Media Call Records

/15 Comments/in , , , /by

A number of bloggers are pointing, with concern, to an Oregon case in which a blogger got hit with a $2.5 million defamation judgement.

Oregon law provides special legal protections against defamation lawsuits to journalists associated with traditional media outlets. Such publications are immune from defamation suits unless the defamed individual first requests a retraction. Journalists at recognized media outlets are also protected from revealing confidential sources. Cox argued that she was eligible for protection under both provisions and asked the judge to set aside the verdict.

But Judge Marco Hernandez disagreed. “Although defendant is a self-proclaimed ‘investigative blogger’ and defines herself as ‘media,’ the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system,” the judge wrote. “Thus, she is not entitled to the protections of the [Oregon journalist shield] law.”

That result was apparently dictated by the text of the Oregon shield statute, which singles out those specific media technologies for legal protection.

But as Kashmir Hill notes, even aside from the outdated terms of Oregon’s law, the woman in question had set up a series of websites pretty much designed to hurt the reputation (and especially the Google searches) of the firm in question, and then sent an email asking for $2,500 a month for “reputation management” services to undo her work.

The Oregon case, in other words, is more complicated than it has been portrayed.

DOJ Doesn’t Consider Many Bloggers News Media

But while we’re talking about whether bloggers are protected under media guidelines, we probably ought to be looking at DOJ’s recently changed Domestic Investigation and Operations Guide, which also don’t consider bloggers to be protected as media (I wrote about these changes here, but the guidelines themselves have been released, in heavily redacted form). Unlike Oregon, DIOG does include online news in its definition of media (PDF 157).

“News media” includes persons and organizations that gather, report or publish news, whether through traditional means (e.g., newspapers, radio, magazines, news service) or the on-line or wireless equivalent. A “member of the media” is a person who gathers, reports, or publishes new through the news media.

But then it goes on to exclude bloggers from those included in the term “news media.”

The definition does not, however, include a person or entity who posts information or opinion on the Internet in blogs, chat rooms or social networking sites, such as YouTube, Facebook, or MySpace, unless that person or entity falls within the definition of a member of the media or a news organization under the other provisions within this section (e.g., a national news reporter who posts on his/her personal blog).

Then it goes onto lay out what I will call the “WikiLeaks exception.”

As the term is used in the DIOG, “news media” is not intended to include persons and entities that simply make information available. Instead, it is intended to apply to a person or entity that gathers information of potential interest to a segment of the general public, uses editorial skills to turn raw materials into a distinct work, and distributes that work to an audience, as a journalism professional.

The definition does warn that if there is any doubt, the person should be treated as media. Nevertheless, the definition seems to exclude a whole bunch of people (including, probably, me), who are engaged in journalism.

DOJ Has Made It Easier To Investigate Journalists’ Contacts

Though to some degree, it doesn’t matter, because the new DIOG treats the media so poorly in any case. It considers investigations sensitive (and therefore requiring special approvals) only if the member of the news media (or religious or political organization, or academic institution) is the subject of the investigation, not if they are a witness, as media almost always will be in leak investigations.

Just as troubling, the new DIOG seems to make it a lot easier to get news media contact records in national security investigations. Read more →

The Gray Lady Calls the GOP Candidates Gray

/19 Comments/in , /by

The NYT had a hysterical editorial calling out the GOP candidates for claiming that waterboarding is not torture.

As hard as it is to believe, the Republican candidates for president seem to have learned very little from the moral calamities of the administration of George W. Bush. Three of the contenders for the party’s nomination have now come out in favor of the torture known as waterboarding. Only two have said it is illegal, and the rest don’t seem to have the backbone to even voice an opinion on the subject.

At Saturday night’s debate in South Carolina, Herman Cain and Michele Bachmann said they would approve waterboarding of prisoners to extract information. They denied, of course, that waterboarding is torture, even though it’s been classified as such since the Spanish Inquisition. “Very disappointed by statements at S.C. GOP debate supporting waterboarding,” Senator John McCain, the 2008 Republican presidential nominee, wrote on Twitter. “Waterboarding is torture.”

[snip]

As empty as Mr. Romney’s remarks were about Iran, his refusal to renounce waterboarding is disturbing. There are few issues that more clearly define a candidate’s national security policy in the 21st century than a position on torture. A few candidates will fight terrorism using the rule of law, honoring the nation’s moral standards to encourage other countries to do the same. Others will defend the United States by promising to extract information from captives using pain and simulating death, degrading the nation’s reputation. That group now includes Mr. Cain, Mrs. Bachmann and Mr. Romney.  [my emphasis]

Oh, I agree with the sentiment. On this issue (aside from Jon Huntsman and Ron Paul) the GOPers are a bunch of immoral thugs.

But I’m rather amused that the editorial page of the NYT–the NYT!!!–is attacking others for refusing to call waterboarding torture.

As Glenn Greenwald noted, here’s what two of the then-editors have had to say about whether waterboarding is torture or not.

New York Times Executive Editor Bill Keller explaining why his newspaper won’t describe Bush interrogation techniques as “torture”:

[D]efenders of the practice of water-boarding, including senior officials of the Bush administration, insisted that it did not constitute torture.

New York Times Washington Bureau Editor Douglas Jehl on why his paper refuses to describe Bush’s waterboarding program as “torture”:

I have resisted using torture without qualification or to describe all the techniques. Exactly what constitutes torture continues to be a matter of debate and hasn’t been resolved by a court. This president and this attorney general say waterboarding is torture, but the previous president and attorney general said it is not. On what basis should a newspaper render its own verdict, short of charges being filed or a legal judgment rendered?

And here’s what the NYT’s spokesperson said in response to a study showing that they had changed their language on waterboarding once the US embraced using it.

“As the debate over interrogation of terror suspects grew post-9/11, defenders of the practice (including senior officials of the Bush administration) insisted that it did not constitute torture,” a Times spokesman said in a statement. Read more →

Is DOD Trying to Bypass the Gitmo Press Corps (AKA Carol Rosenberg)?

/7 Comments/in , , /by

Yesterday, we had an interesting discussion about whether efforts by Gitmo Chief Prosecutor Mark Martins to expand viewing of Gitmo military commissions was about cover-up or transparency. I suggested that it might be something in-between–an effort to bypass members of the existing Gitmo press corps, who know a lot more about Gitmo and detainee histories than those of us following along at home and therefore can provide context the government finds inconvenient. But at the same time, bypassing the Gitmo press corps will limit the government’s ability to gag reporters as they did when Rosenberg and others reported on Joshua Claus. And expanding access did have other real benefits, like letting victims follow the trials without onerous travel to Gitmo.

That is, I suggested it was largely a different strategy for controlling information.

So I was rather interested to see this passage in Carol Rosenberg’s report on a shiny new–but substantively incomplete–website Gitmo had set up.

The new website appeared on Wednesday morning without an announcement from the Secretary of Defense’s Public Affairs office, which has handled military commissions releases for the past six years. Instead, a former Bush era Defense Department deputy responsible for detention issues broke the news on a Heritage Foundation blog. Cully Stimson, himself a Navy reserve judge, said the new site heralded a new ear of transparency in the at-times secretive court proceedings.

It was the second revelation from the Obama Defense Department to be revealed in conservative circles. Sunday, The Weekly Standard magazine included a profile of the new Obama era War Crimes Prosecutor, Army Brig. Gen Mark Martins, pledging to beam closed-circuit broadcasts of remote Guantánamo proceedings to both victims and media viewing centers on U.S. soil.

Not only won’t the Public Affairs office tell Rosenberg any useful news about the upcoming Abd al Rahim al-Nashiri trial (nor had they posted documents his lawyers recently filed; though she did just tweet that al-Nashiri’s trial is on), but what news they were released was going through decidedly conservative channels: the Weekly Standard and the Heritage Foundation.

And surprise surprise, those conservative channels deem this shiny new technology that doesn’t give us a full picture “transparency.”

Is DOD suggesting that to conservatives, a website looks like information whether or not there’s anything in that information?

Whether or not this is the plan, to bypass the people who actually know something about this place and these people by wowing people who will be impressed by empty bells and whistles, it is telling that Gitmo is going to conservative sites. If your idea of “transparency” is only to show the kind of information that conservatives will like, then it’s pretty clear you’re hiding something.

The World Should Have Revolted Over America’s Illegal War on Iraq

/28 Comments/in , /by

You may have seen discussions about this project around the Toobz. In it, scholars use supercomputers to analyze the tone of news coverage. Their results from Egypt and Tunisia–showing low sentiment right before this year’s revolutions–suggest you can predict volatile events with such analysis.

I decided to look further at the study, not least, because of Dianne Feinstein’s complaint earlier this year that the CIA had totally missed stirrings of rebellion in both countries.

Feinstein set a skeptical tone at the opening of the hearing, saying Obama and other policymakers deserved timely intelligence on major world events. Referring to Egypt, she said, “I have doubts whether the intelligence community lived up to its obligations in this area.”

After the hearing, Feinstein said she was particularly concerned that the CIA and other agencies had ignored open-source intelligence on the protests, a reference to posts on Facebook and other publicly accessible Web sites used by organizers of the protests against the Mubarak government.

Speaking more broadly about intelligence on turmoil in the Middle East, Feinstein said, “I’ve looked at some intelligence in this area.” She described it as “lacking . . . on collection.”

According to DiFi, the CIA missed the Arab Spring because they weren’t monitoring open source materials (an argument that WikiLeaks cables seem to confirm). And this study is all the more damning for our intelligence community, because this study uses their own (actually, Britiain’s) open source collection.

Recognizing the need for on–the–ground insights into the reaction of local media around the world in the leadup to World War II, the U.S. and British intelligence communities formed the Foreign Broadcast Information Service (FBIS — now the Open Source Center) and Summary of World Broadcasts (SWB) global news monitoring services, respectively. Tasked with monitoring how media coverage “varied between countries, as well as from one show to another within the same country … the way in which specific incidents were reported … [and] attitudes toward various countries,” (Princeton University Library, 1998) the services transcribe and translate a sample of all news globally each day. The services work together to capture the “full text and summaries of newspaper articles, conference proceedings, television and radio broadcasts, periodicals, and non–classified technical reports” in their native languages in over 130 countries (World News Connection, 2009) and were responsible for more than 80 percent of actionable intelligence about the Soviet Union during the Cold War (Studeman, 1993). In fact, news monitoring, or “open source intelligence,” now forms such a critical component of the intelligence apparatus that a 2001 Washington Post article noted “so much of what the CIA learns is collected from newspaper clippings that the director of the agency ought to be called the Pastemaster General.” (Pruden, 2001)

While products of the intelligence community, FBIS and SWB are largely strategic resources, maintaining even monitoring coverage across the world, rather than responding to hotspots of interest to the U.S. or U.K. (Leetaru, 2010). A unique iterative translation process emphasizes preserving the minute nuances of vernacular content, capturing the subtleties of domestic reaction. More than 32,000 sources are listed as monitored, but the actual number is likely far lower, as the editors draw a distinction between different editions of the same source. Today, both services are available to the general public, but FBIS is only available in digital form back to 1993, while SWB extends back more than three decades to 1979, and so is the focus of this study. During the January 1979 to July 2010 sample used in this study, SWB contained 3.9 million articles. The only country not covered by SWB is the United States, due to legal restrictions of its partner, the CIA, on monitoring domestic press.

If you believe that study author Kalev Leetaru’s research is valid (I think it’s very preliminary), then you basically grant that using his data analysis methods would have warned our intelligence services that the unrest in North Africa was exceptionally high.

But that’s not what I found most intriguing about Leetaru’s research.

To measure whether the data from the SWB was an outlier, Leetaru compared how trends he saw from that data compared to the NYT and English language news more generally.

And as he explains, they generally track during this period, though with key deviations.

To verify that these results are not merely artifacts of the SWB data collection process, Figure 4 shows the average tone by month of Summary of World Broadcasts Egyptian coverage plotted against the coverage of the New York Times (16,106 Egyptian articles) and the English–language Web–only news (1,598,056 Egyptian articles) comparison datasets. SWB has a Pearson correlation of r=0.48 (n=63) with the Web news and r=0.29 (n=63) with the New York Times, suggesting a statistically significant relationship between the three. All three show the same general pattern of tone towards Egypt, but SWB tone leads Web tone by one month in several regions of the graph, which in turn leads Times tone. All three show a sharp shift towards negativity 1–24 January 2011, but the Times, in keeping with its reputation as the Grey Lady of journalism, shows a more muted response.

That is, for these events, local coverage was both more attuned to a change in sentiment and more reflective of the volatility of it. Or to put it another way, the NYT was slow to consider Egypt a major story, and never thought it was as big of a deal as the rest of the world did.

A far more interesting comparison of how the NYT outlook compared with the rest of the world comes in these two graphs, which show the NYT sentiment from 1945 to 2005 and the SWB sentiment from 1979 to 2010 (caution–neither the X nor Y axes here use the same scale; click to enlarge or go to the study for larger images).

You can sort of pick out events that might be driving sentiment on both scales. And they don’t entirely line up. Just as an example, the US seems to have reacted far more strongly–2 deviations as compared to .5 deviation–to what appears to be the first Gulf War in January 1991.

But note where both data sets converge more closely: with our second war against Iraq, with even the chief cheerleader for war, the NYT, measuring in the high 2 deviations from the mean in early 2003, and the international SWB measuring almost 2 deviations from the mean.

Significantly, the study shows that Egyptian sentiment before they revolted was in the 3+ range–more incensed than we were with the Iraq invasion, but not by much; whereas sentiment in Tunisia and Libya was less negative. Were we that close to revolting?

Now, I could be misreading both the stats and the explanation for the global bad mood as we lurched toward war against Iraq (though it also shows up in the Egyptian and Tunisian graphs; the sentiment is least severe in Libya). But if I’m not, it raises questions about what was driving the sentiment. In Europe especially and even in the US, there were huge protests against the war, though we never seemed all that close to overthrowing the war-mongers in power. I wonder, too, whether the sentiment also reflects the ginned up hatred toward Saddam Hussein. That is, it may be measuring negative sentiment, but partly negative sentiment directed against an artificial enemy.

So are these graphs showing that we were even closer to revolt than those of us opposed to the war believed? Or is the NYT graph showing that warmongers reflect the same nasty mood as people attempting to prevent an illegal war?

In any case, the NYT coverage reflected the crankiest mood in the US of the entire previous half century, significantly worse than the VIetnam period. I knew I was cranky; I wasn’t entirely sure everyone else was, too.

The Government Still Doesn’t Say Whether or Not It Has Recordings of James Risen

/8 Comments/in , /by

There’s an interesting passage in this government filing to get Judge Leonie Brinkema to reconsider her guidelines regarding James Risen’s testimony in the Jeffrey Sterling suit. It seems to address Brinkema’s suggestion in her ruling that there might be recordings of Sterling passing classified information to Risen.

The government has not stated whether it has nontestimonial direct evidence, such as email messages or recordings of telephone calls in which Sterling discloses classified information to Risen; nor has it proffered in this proceeding the circumstantial evidence it has developed.

Here’s how the government responds.

There is no non-testimonial direct evidence in this case that can establish what Risen can. There are no recorded telephone calls in which Sterling discloses classified information to Risen, nor are there emails in which Sterling discloses the same. Had there been such recordings or emails, that evidence would have been disclosed in the Bruce Declaration5 or in the government’s response to Risen’s motion to quash the 2010 grand jury subpoena, and the government certainly would have provided such discovery after indictment. There simply is no such evidence.

5 The Bruce Declaration, which the Court has had in an unredacted, classified form since 2008, and which the government adopted and re-submitted in 2010, is an accurate and fair summary of the anticipated trial evidence in this case. See Dkt. 144. The defendant received a redacted, classified version of the Bruce Declaration on June 18, 2011. Pursuant to this Court’s Order of June 28, 2011, the government provided counsel for Risen a redacted, unclassified version of the Bruce Declaration (that remains under seal) on June 29, 2011, so that counsel for Risen would have an adequate factual background for the hearing on July 7, 2011.

Note they don’t say they don’t have any recorded telephone calls between Risen and Sterling. Rather they say, “There are no recorded telephone calls in which Sterling discloses classified information to Risen, nor are there emails in which Sterling discloses the same.” They attribute that claim to their Bruce Declaration, which as they note provides a list of all the evidence they intend to use, not all the evidence they have.

That’s important, because we know they have the content of emails, at least those from Sterling to Risen. The indictment references a March 10, 2003 email from Sterling to Risen suggesting that Risen read an article on Iran.

Defendant STERLING stated, “I’m sure you’ve already seen this, quite interesting, don’t you think? All the more reason to wonder … J.”

The indictment also accuses Sterling of “meeting with Author A in person to orally disclose classified information.

The only two ways I can think of to know that is if, 1) they knew Sterling didn’t pass information via their phone calls because they have all those calls, or 2) if he if specifically referenced meeting to give him information in an email. But the government has introduced no evidence of the latter, at least not publicly.

I suspect Brinkema has good reason to suspect the government has wiretaps of Sterling talking to Risen (if they did, given the circumstances of the case, there’d be a good chance they got those wiretaps from their vacuuming of information at circuits, not from a formal wiretap placed on Sterling’s phone). And now, along with the dance over how much Brinkema will permit the government to ask Risen on the stand, they’re conducting a dance over whether or not the government will have to admit that.

Raining On The West Memphis Parade: Fundamental Fairness Denied

/17 Comments/in , , /by

The West Memphis 3 are free!! Yea!

Three men convicted in the 1993 murders of three boys in West Memphis, Arkansas, were ordered released after entering new pleas following a court hearing, prosecutor Scott Ellington said Friday.

Damien Echols, Jessie Misskelley Jr. and Jason Baldwin pleaded guilty and were sentenced to 18 years in prison with credit for time served, a prosecutor said. They were to be released on Friday.

The three entered what is known as an Alford plea, which allows a defendant to maintain innocence while simultaneously acknowledging that the state has evidence to convict, Ellington said.

Cause for celebration, right?

Not here; I feel nothing but sweet sorrow because, while Damien Echols (who had actually been on death row most all of the intervening time), Jessie Misskelley Jr. and Jason Baldwin are free, a solid little chunk of the American justice system, due process and fundamental fairness was sacrificed in the process.

Let one of the three, Mr. Baldwin, speak for himself and me here:

This was NOT justice. I did not want to take this deal, but they were going to kill Damien an I couldn’t let that happen.

And therein lies the huge rub. The facts had never been particularly solid against these three once young men. They were brow beaten by avaricious prosecutors, sought to be lynched by a southern community ginned up on fear, horror and emotion and poorly served by their attorneys at the original trial level. In short, every facet of the American system of due process was compromised and tainted, and they have sat convicted, one on death row, ever since as a result.

Thanks to a litany of friends, motivated activist celebrities like Johnnie Depp, Natalie Maines and Eddie Vedder, and documentary filmmakers the cause of the West Memphis Three has never died. And, in fact, I would love to say that all that sweat, love and belief was vindicated today. But, sadly, that is simply not the case.

Yes, it is good, and truly heartwarming, to see “The Three” in sunshine. That said, justice and the rule of law are a little more dead for the effort if they are truly innocent. And the facts, including the key absence, indeed exclusion, of DNA evidence, now known – almost unequivocally – militate to a conclusion of innocence. While people should be happy, no thrilled, they are out of custody, I cannot believe there is not concurrent shrieking at the highest levels as to how exactly that has transpired.

Let’s be honest, no prosecutor in his right mind walks these three men out the front door of the courthouse if he truly believes they are guilty and there is even the slightest chance in hell he can make the charges stand up in a retrial. And no prosecutor lets them do it through Alford pleas. I do not care what kind of happy pablum they spew to the television cameras and press, it is really just that simple.

So, what we have here is nothing but a reaffirmation, ratification and craven ass covering of the original miscarriage of justice that railroaded the West Memphis Three. There will be no words of commendation here for the prosecutors, nor for Judge David Laser for giving the court’s imprimatur of propriety to this; in fact, they should all be questioned as to their ethics and morals.

This is nothing short of Mike Nifong making the Duke lacrosse players take misdemeanor pleas and register as sex offenders in order to save his precious reputation and job, and stop civil damage suits. Nifong did not get away with such depravity in Durham, and the prosecutors in Jonesboro Arkansas should not either.

Somewhere a gold lady with a set of scales weeps because another pint of her lifeblood has been spilled in Jonesboro Arkansas in the name of prosecutorial malice, vanity and civil damage mitigation. So many people have put their souls into this case, but the work is not over and the job not done yet. Because until the names of Damien Echols, Jessie Misskelley Jr. and Jason Baldwin are cleared in full, due process has been denied and fundamental fairness refused.

Why Oh Why Can’t We Have Better Political Journalism, University of Miami Edition

/27 Comments/in , /by

Free prostitutes … luxury yachts … big cash payments … free Cadillacs. All to influence a bunch of powerful men.

It reads just like the Jack Abramoff scandal, or the Duke Cunningham scandal. Or the tales of similar influence peddling that takes place on Wall Street but that get ignored unless they involve someone like Client 9.

But instead it’s a 7,000-word expose of all the players University of Miami booster and recently convicted Ponzi schemer, Nevin Shapiro, allegedly rewarded while they were at Miami.

For the football fans among you, it’ll be interesting for the lurid details, for the third strike in recent memory to the NCAA’s claims to be running an amateur football program, for claims of a $5,000 bounty placed–but never rewarded–for knocking Tim Tebow out of a game, and for the pro players–like Vince Wilfork, Jonathan Vilma, Devin Hester, and Willis McGahee–implicated in this.

But for the moment (until Trash Talk, I guess), I just wanted to salute the journalism that went into it.

Mind you, this story did not–as the Duke Cunnnigham story did–actually discover the story. Yahoo says it 100 hours of jailhouse interviews with Shapiro; it appears he wanted to tell the story to the press at the same time as he cooperated with the Feds and NCAA to ensure he accomplished his objective: revenge on those who blew him off after he got busted.

In 15 prison interviews with Yahoo! Sports and hundreds of telephone and email interactions, Shapiro laid out a multitude of reasons for blowing the whistle on his illicit booster activity. Chief is his feeling that after spending eight years forging what he thought were legitimate friendships with players, he was abandoned by many of the same Miami athletes he treated so well. He told Yahoo! Sports that following his incarceration, he asked multiple players for financial help – either with bail money, or assistance to individuals close to the booster. Shapiro admitted some of those inquiries included angry letters and phone calls to players whom he provided benefits.

And Yahoo’s task may have been helped by the sheer volume of detail released in Shapiro’s Ponzi trial.

Nevertheless, they’ve gone to great length, over 11 months time, to recreate Shapiro’s story, down to pictures and receipts.

Yahoo! Sports audited approximately 20,000 pages of financial and business records from his bankruptcy case, more than 5,000 pages of cell phone records, multiple interview summaries tied to his federal Ponzi case, and more than 1,000 photos. Nearly 100 interviews were also conducted with individuals living in six different states. In the process, documents, photos and 21 human sources – including nine former Miami players or recruits, and one former coach – corroborated multiple parts of Shapiro’s rule-breaking.

And unlike the Duke Cunningham and Abramoff scandals, this reporting does a good job of thoroughly implicating the big names, down to the two Escalades Shapiro claims to have bought Wilfork.

So why am I bringing this up on a Wednesday, when I should be blogging politics (aside from the fact that you all should read it). Just to imagine what would happen if political journalism could replicate all this–if we could get thorough stories of the parties and prostitutes used to influence the powerful men ruining our country.

It helps, mind you, that’s there’s still big money in sports. Yahoo Sports apparently have the resources to support this 11-month investigation. And it helps, too, that NCAA rules make these allegations real violations in a way that they wouldn’t be for banksters (but clearly are for politicians).

One more thing we’ll see from the comparison, I bet. In the same way that an alleged Roger Clemens lie was treated with far more aggressiveness than, say, Scott Bloch’s lies, I suspect these violations (particularly now that Yahoo has exposed them) will be punished more aggressively than most similar allegations made about politicians.

Judge Brinkema Cites Espionage Act to Protect Reporter’s Privilege

/9 Comments/in , /by

Charlie Savage tells the headline story from Leonie Brinkema’s opinion on whether or not James Risen must testify in Jeffrey Sterling’s leak trial.

“A criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook,” wrote the judge, Leonie Brinkema of the United State District Court in Alexandria, Va.

But I’m just as interested in a few other things she says. First there’s the way she dismisses the government’s claim that two of the people who testified to the Grand Jury–Jeffrey Sterling’s ex-girlfriend and a former CIA officer with knowledge of the MERLYN operation–would be unable to testify at he trial.

The government had argued that the girlfriend was protected by spousal privilege and that the former CIA officer would be hearsay.

Separate and apart from Risen’s concession regarding the admissibility of his grand jury affidavit at trial, see Mot. p. 45, other evidence relied upon by the Court in its Memorandum Opinion similarly would be inadmissible at trial. For example, the grand jury testimony of the witness cited by the Court at page 7 of its Memorandum Opinion would be inadmissible under Rules 801(c), 802 and 803 of the Federal Rules of Evidence and United States v. Acker, 52 F.3d 509, 514-515 (4th Cir. 1995)(availability of spousal privileges to testifying and non-testifying spouses). The grand jury testimony of the witness cited by the Court at pages 7, 9, 10, 20, and 34 of its Memorandum Opinion – testimony that this Court deemed one of the key facts in its conclusion – is inadmissible hearsay on its face absent some exception; yet Risen treats the admissibility of the testimony of both witnesses as a foregone conclusion.

But as Risen’s lawyer Joel Kurtzberg pointed out during the hearing on Risen’s subpoena, she’s not his wife!

They actually cite in their papers as to the testimony of Mr. Sterling’s ex-girlfriend, suggest that it wouldn’t be admissible because they cite to a Fourth Circuit case about the marital privilege.

And in fact, if you look at the case they cite, the case holds the exact opposite. It holds that if you are not married, even if you have been living together I believe for 26 years in that case, the marital privilege doesn’t apply.

Here’s how Brinkema dismisses this William Welch gimmick.

Although the government argues that the spousal privilege would prevent this witness from testifying, nothing in the record indicates thta Sterling and the witness are married now or were married during the time of Sterling’s alleged statements.

More interesting still is the way Brinkema dismisses the government’s claim that the CIA officer’s testimony would be inadmissible hearsay.

Brinkema starts by citing Federal Rules of Evidence describing the exception for a statement against interest.

A statement is admissible under this exception if: (1) the speaker is unavailable; (2) the statement is actually adverse to the speaker’s penal interest; and (3) corroborating circumstances clearly indicate the trustworthiness of the statement.

After noting that Risen’s testimony would be unavailable if she found that reporter’s privilege prevented his testimony or if he refused to testify, she then invokes the Espionage Act.

Risen’s statements are adverse to his penal interest because receiving classified information without proper authorization is a federal felony under 18 U.S.C. 793(e); see U.S. Sentencing Guidelines Manual 2M3.3 (providing a base offense level 29 for convictions for the “Unauthorized Receipt of Classified Information.”). 6

6 The government clearly recognizes Risen’s potential exposure to criminal liability and has offered to obtain an order of immunity for him.

Brinkema uses the overzealous interpretation of the Espionage Act the government itself has been floating lately as a way to force the government to have the former CIA officer testify, which I suspect they’d much rather not do.

And note that footnote about immunity. I’m not sure whether we knew the government had discussed offering Risen immunity or not, but particularly given claims they’re pursuing his testimony so aggressively as a way to jail him for protecting his sources, it is an interesting revelation.

Finally, there’s one more passage I find telling. In the middle of a passage discussing whether the government has access to the information Risen would testify to via other means, she notes,

The government has not stated whether it has nontestimonial direct evidence, such as email messages or recordings of telephone calls in which Sterling discloses classified information to Risen; nor has it proffered in this proceeding the circumstantial evidence it has developed.

In a case in which the government has pointed to records of emails and calls, Brinkema notes, the government has never said whether or not it has the content of those emails and calls. Given that this statement is a non sequitur (it appears amid a discussion of circumstantial evidence), and given that Brinkema knows the government may have improperly accessed Risen’s phone records in the warrantless wiretap case, I find her comment mighty suggestive.