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DOJ Points to David Passaro’s Trial as Proof We Investigate Torture, But It Actually Proves John Yoo Should Be Tried

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Update: Meanwhile, the Spanish judge threw out the case.

A SPANISH judge overnight dismissed a complaint filed against former top US officials over alleged torture at the Guantanamo Bay detention camp. Judge Eloy Velasco decided to throw out the case as he said the US justice system is competent to handle any such complaint.

The last time Spain considered investigating American torture, DOJ and Spain’s Chief Prosecutor Jose Zaragoza worked together to find a way for Spain to decline the case: shortly after Zaragoza told us that “if a proceeding regarding this matter were underway in the U.S., that would effectively bar proceedings in Spain,” Eric Holder asked John Durham to investigate torture. There’s no visible sign in the least, mind you, that Durham has investigated the crimes in his mandate (which includes, among other things, the use of death threats against Abd al Rahim al-Nashiri and the manslaughter of Gul Rahman in Afghan’s Salt Pit). But his investigation serves as a convenient diplomatic stunt to shield American torture from Spanish law.

DOJ attempts to stave off Spanish investigations by claiming we investigate torture

DOJ’s back in the diplomatic stunt business with a letter attempting to convince Spain to drop its investigations of the lawyers who authorized torture.

We understand from Judge Velasco’s request that a criminal complaint has been made by the Association for the Dignity of Spanish Prisoners, claiming that the United States, as part of a strategy in its conflict with the Taliban and Al Qaeda and its affiliates, sanctioned a series of executive orders supported by legal memoranda drawn up by the above-listed persons and their legal counsel and advisors, authorizing interrogation techniques in violation of international conventions in force. We have also been advised that the complaint further alleges that U.S. government personnel used the memoranda as a legal basis to conduct interrogations using these illegal techniques upon persons suspected of acting in concert with Al Qaeda and the Taliban. In the request, Judge Velasco seeks information indicating whether any U.S. authority has instituted investigations or proceedings in connection with the facts describes in the above-referenced complaint, and, if so, the specific authority (administrative or judicial) that has dealt or is dealing with such matters. The request further notes that if the facts are currently being investigated by U.S. authorities, that the referenced complaint will be sent to the United States in order that the facts reported therein may be investigated by the United States.

There’s a lot that is misleading about DOJ’s response letter. But one of its key strategies is badly fraudulent: the centrality of its focus on David Passaro’s conviction for assault. The letter boasts:

In 2003 [EW: it was 2004], the U.S. Department of Justice brought criminal charges against Passaro, a CIA contractor accused of brutally assaulting a detainee in Afghanistan in 2003. The CIA described his conduct as “unlawful, reprehensible, and neither authorized nor condoned by the Agency.” The then Attorney General stated that “the United States will not tolerate criminal acts of brutality and violence against detainees….” And the U.S. Attorney noted that the extraterritorial jurisdiction exercised by the United States is “[n]ot only vital to investigating and prosecuting terrorists, but also it is instrumental in protecting the civil liberties of those on U.S. military installations and diplomatic missions overseas, regardless of their nationality.” See press release at http://www.justice.gov/opa/pr2004/June/04_crm_414.htm, a copy of which is annexed as Attachment A hereto. Following a jury trial, Passaro was convicted of felony assault. On August 10, 2009, the United States Court of Appeals for the Fourth Circuit upheld the conviction, holding that a U.S. federal court has jurisdiction over the trial of an American citizen for committing assaults on the premised of U.S. military missions abroad. The full opinion of the court is annexed as Attachment B hereto. In February 2010, the U.S. Supreme Court refused to hear an appeal by Passaro. Passaro was sentenced to 8 years and 4 months in prison. [EW: his sentence was reduced to 80 months on appeal.]

But there’s a lot that’s wrong with this boast, aside from the error of date and the representation that Passaro’s ultimate sentence was 20 months longer than it ultimately was.

There were irregularities with Passaro’s trial

As I’ve described, Passaro was charged and convicted with assault that led to the death of a suspect Afghan insurgent, Ahmed Wali, at Asadabad firebase on June 21, 2003. There’s a lot that’s funky about Passaro’s case: The military prevented any autopsy on Wali, making it impossible for Passaro to refute arguments the government made about cause of death. There was a Special Forces person with access to Wali whose role was never explored at trial, and the two guards who had custody (and unsupervised access) to Wali during the period leading up to his death were magically assigned to duty in Alaska during Passaro’s trial, making them unavailable to be cross-examined during the trial.

But the central problem with Passaro’s conviction is that the government withheld all the evidence he asked for that would have shown that, even if his treatment of Wali did lead to his death, it had been officially sanctioned under the CIA’s detention policy. And that evidence goes straight to John Yoo’s role in sanctioning torture.

Passaro was denied directly responsive evidence that goes to heart of Yoo’s role in torture

Passaro attempted to use a public authority defense, basically arguing he had been ordered to use any force he used with Wali. In addition to asking for evidence on SERE training–indicating that Passaro knew well the CIA, with John Yoo’s sanction, had used SERE as the basis for its interrogation program–Passaro asked for (in part):

  • All memoranda from OLC on the capture, detention, and interrogation of members of the Taliban, al Qaeda, or other terrorist organizations operating in Afghanistan
  • All memoranda from CIA’s Office of General Counsel on the capture, detention, and interrogation of members of the Taliban, al Qaeda, or other terrorist organizations operating in Afghanistan
  • “[C]omplete contents of the rules of engagement for the CIA that address the capture, detention, and/or interrogation of the Taliban, al Qaeda, or other terrorist organizations or combatants operating in Afghanistan” including those categorized as “force protection targets”
  • “[A]ll written documents, photographs, video, and sound recordings that contain the methods employed in Afghanistan by members of CIA, DOD, or OGA for the capture, detention, and/or interrogation of members of the Taliban, al Qaeda, or other terrorist organizations, or other combatants operating in Afghanistan, including policies and guidelines developed in early 2003 for use by Special Operations forces“
  • “[A]ll orders, directives, and/or authorizations by President George W. Bush; ex-CIA Director George J. Tenet; the CIA Director of Operations; and the head of CIA’s Counterterrorist Center, Office of Military Affairs, or any other CIA component, that address the capture, detention, and/or interrogation of members of the Taliban, al Qaeda or other terrorist organizations or combatants operating in Afghanistan”
  • All information on Passaro’s training [my emphasis]

In response, the government gave Passaro an otherwise never-released guidance [see PDF 21] which the CIPA summary claimed was “an excerpt of guidance provided to the field on 03 December 2002 in support of ongoing CIA operations in Afghanistan and along the Pakistan border” which read,

When CIA officers are involved in interrogation of a detainee, the conduct of such interrogation should not encompass any significant physiological aspects (e.g., direct physical contacts, unusual mental distress, unusual physical restraints, or deliberate environmental deprivations)–beyond those reasonably required to ensure the safety and security of the detainee–without prior and specific headquarters guidance.

Note the date: December 3, 2002. But remember, Wali died on June 21, 2003. And in between the time that guidance was issued and the time when Wali died, CIA issued four more documents that were directly responsive to Passaro’s request but which the government didn’t turn over (and which weren’t released in this form until several weeks after the Appeals decision cited in DOJ’s letter):

  • CIA’s Guidelines on Confinement, dated January 28, 2003, signed by George Tenet (written after consultation with John Yoo)
  • CIA’s Guidelines on Interrogation, dated January 28, 2003, signed by George Tenet (written after consultation with John Yoo)
  • The Bullet Point document created by the CounterTerrorism Center with John Yoo’s involvement, delivered from CIA General Counsel Scott Muller to John Yoo on April 28, 2003
  • The Bullet Point document, described as a “final summary” sent from CTC to OLC’s Patrick Philbin on June 16, 2003

Between the Tenet Guidelines and the Bullet Points, a number of the actions for which Passaro was convicted were sanctioned by the CIA at the time Wali died.

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Terror Trials, Ray Kelly and the FBI Director Job

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A couple of weeks ago quite a stir was created when the rumor was let leak that President Obama was considering three different high level Bush/Cheney Administration officials to replace FBI Director Robert Mueller, whose ten year term will expire will expire on September 4, 2011. The two names most prominently featured were former Bush Deputy AG James Comey and former Bush National Security AAG Ken Wainstein but also mentioned was former Bush Homeland Security Advisor Fran Townsend. The story creating the hubbub, almost as an afterthought, also mentioned that Sen. Chuck Schumer had been lobbying for current NYPD Commissioner Ray Kelly for the job.

Today, however, comes a news report from local New York investigative reporter Murray Weiss that the FBI Director chair is Ray Kelly’s “for the taking”:

And when sources with solid connections in the White House tell you Kelly has been told by Attorney General Eric Holder that the FBI director’s job is his for the taking, it is impossible to ignore them. All the signals, including the aside from Kelly, are in sync.

Here is the news, according to my sources.

Kelly, who served in two federal posts during the Clinton administration, is this close to heading out of Manhattan and back to Washington to cap his long career of public service by running the FBI.

There are several things interesting about the report. One is Kelly’s age – he is 69 years old. The article addresses that issue:

The FBI Director’s term is 10 years. My sources say the White House has told the 69-year-old Kelly to view the position as a five year commitment, which would coincide nicely with the end of a second Obama term.

If so, and Kelly is indeed nominated, this is a contemptible plan. The intent behind having a ten year service period for the FBI top spot is to give it some space from hard partisan politics. In this case, seeing as how rare it is that a party who has had the presidency for two terms gets it for a third, setting up the FBI job to be open in the face of what would historically be and expected GOP president in 2016 seems short-sighted and extremely ill considered. I guess that presupposes Obama is reelected, but you have to assume the White House believes that will be the case and is acting under Read more →

DOJ: Iraq Had No Al Qaeda Affiliates (Working Thread on KSM Indictment)

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As Eric Holder said, he had the December 14, 2009 indictment of KSM and the other 9/11 defendants unsealed. Here is the indictment.

Page 3: Note in their description of why al Qaeda targeted the US, they make no mention of Palestinians, even though they were mentioned explicitly in the Fatwa?

Page 3: Note the list of al Qaeda affiliates in paragraph 4. Note what’s missing? Iraq.

Page 4: The indictment says Muhammad Atef was “responsible for supervising the terrorist training of al Qaeda members.” I take this as an implicit admission they were lying about Abu Zubaydah for all those years (though on page 5, they do list Khalden and Derunta as campes which al Qaeda “sponsored, managed, and financially supported”).

Page 4: The indictment lists KSM, Walid Bin Attash, and Mustafa al-Hawsawi as members of the media committee.

Page 5: Note the reference to “assorted training manuals.” We’ve always seen discussion of one manual, the Manchester manual. I find the reference particularly interesting given that Bruce Jessen and James Mitchell justified their torture based on what they read in an unspecified manual.

Page 6: The description of the manuals includes this, which served as justification for torture:

Al Qaeda provided counter-interrogation training to its personnel, which, among other things, required captured operatives to lie to authorities to prevent detection of an ongoing plot.

Page 8: Note how they reference Moussaoui:

In 2001, Zacarias Moussaoui, a co-conspirator not named as a defendant herein, traveled to the United States and took pilot and jet-simulator training in Oklahoma and Minnesota.

Page 9: They make no mention of Mohammed al-Qahtani among the list of hijackers, intended or not.

Page 14: KSM trained hijackers to use short-bladed knives by killing sheep and camels.

Page 15: The indictment describes which flights Walid bin Attash tested cockpit safety (in Asia). The sourcing on this is rather interesting–for example, how did they learn that Attash had a Leatherman on his January 2000 Malaysian flight? The question is particularly interesting given that we should expect they would not use anything that came from the defendants here, so as to avoid any torture taint.

Page 16: It’s actually really helpful that they list what flight each hijacker eventually ended up on–it really helps you to see how the Hamburg cell ended up on the planes. I wish the 9/11 Report had done that!

Pages 18-19: Some of the details on overseas financing are quite interesting (particularly given my discussion about SWIFT this morning).

Page 20: Again, the level of detail for KSM’s actions raise interesting questions about source. Also, note that KSM’s order to send $$ to the hijackers post-dates (April 2001) the list of transfers on the previous pages.

Page 20: I’m particularly curious about this mention.

In or about mid-April 2001, KHALID SHEIKH MOHAMMED expressed frustration to RAMZI BIN AL-SHIBH that a hijacker was not traveling to the United States sooner.

Particularly given the detail, I wonder whether the hijacker in question was al-Qahtani (who tried to enter the country on August 3, 2001).

Page 23, 24: Note the list of precisely how many calls the hijackers made to al-Hawsawi and bin al-Shibh, but not what was said.

Page 25: Did we know KSM applied for an entry visa on July 23, 2001?

Page 25: Note they include payments to Moussaoui.

Page 26: Ah, we finally get reference to al-Qahtani, named as “Co-Conspirator 1” in the indictment.

Page 27: Note the stupid, gratuitous reference to “Reagan National Airport” but not to “McCarren International Airport” in Las Vegas.

Page 27: They describe the knife Moussaoui had when he was arrested (a Leatherman).

Page 27: Paragraph 145 doesn’t provide the date or the method by which the hijackers told KSM of the date of the attack, even though it has been reported. This seems an unnecessary exclusion of legally collected NSA information.

Page 29: They seem not to know precise details of how bin al-Shibh got from Spain on September 5 to Dubai on September 9, 2001.

Page 32: Note the reference to a post-9/11 meeting between bin al-Shibh, al-Hawsawi, and Osama bin Laden that was taped. Have we seen this tape?

Page 36-37: Count 4, Violence on and Destruction of Aircraft, applies only to Flights 11 and 175 (the two WTC flights). Anyone know why?

Page 37: Count 5, Conspiracy to Commit Aircraft Piracy, continues through March 1, 2003, when they captured KSM. (Now that I check, so does Count 3.)

Page 40: Counts 7 and 8 are murder charges tied to unnamed Federal Officers who were at WTC. Given the number of first responders who died, these two officers could be anyone. But remember that CIA’s office got destroyed in the WTC attack, though none of their personnel were reported to have died. [Update: Ron Brynaert has suggested these two are probably FBI Special Agent Lennie Hatton and Secret Service Master Special Officer Craig Miller, who ran into the towers to help with rescues. Both are listed among the rest of the victims in the WTC list.]

Page 41: The indictment alleges that the accused continued in their conspiracy to kill Americans up to the filing of the indictment.

Page 43: There’s a weird hodge podge of acts included in Count 10 to substantiate the conspiracy to kill Americans. Notably, it includes KSM and Ali Abdul Aziz conspiring in November and December 2001 to attack planes with shoe bombs (Richard Reid made his attempt on December 22, 2001). But they don’t allege anything with regards to Jose Padilla. Nor wrt Iyman Faris or Majid Khan, both plots KSM allegedly reported.

Pages 45-80 have the list of all the victims of the attack (along with the two anonymous officers listed in Counts 7 and 8). I think that’s the most impressive part of the indictment, seeing the list of names like that.

Eric Holder: Moving KSM Trial to Gitmo Wrong Decision, But We’re Doing It Anyway

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There was something I appreciated about the Holder press conference capitulating on trying the 9/11 defendants in civilian trials.

He didn’t try to spin it as a good idea.

Not only did he reiterate his judgment that trying KSM in a civilian trial was the right decision, he also noted that it’s not clear whether military commissions can impose the death penalty on someone who pleads guilty.

And then he ended the presser quickly, as if he had to rush upstairs to his office to vacate it so some General could move in.

That said, it’s clear that Holder lost an important battle, one he believed in. Here’s what Jane Mayer reports on the work SDNY’s prosecutors have already done on the trial.

Holder and some of the smartest prosecutors in the country had prepared what they believed was the strongest case possible against K.S.M. Lawyers involved in the effort told me they had spent years on it, and had files filled with killer evidence, just waiting for trial. Careers had been devoted to compiling an impeccable case. By using the civilian justice system, Holder had wanted to send several important messages, among them that terrorists are criminals, not some new breed of super warrior; and that the U.S. legal system is the strongest, fairest, and most credible system in the world. A guilty verdict arrived at in front of the world, in a public trial, with ordinary citizens sitting in judgment of K.S.M., would be internationally accepted as legitimate, in a way that no military tribunal ever will be. Or so the thinking went.

Of course, if Holder cared that much about these principles–and I believe he does–it would sure be nice to see him resign rather than preside over the continued decline of our commitment to the rule of law.

(Holder’s full statement–with my emphasis on select points–is below the line.)

Update: Here’s the indictment from 2009 unsealed today. It lists all the known victims of 9/11.

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Are 95% of People Investigated Under New FBI Guidelines Innocent, but Entered into Database?

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The NYT liberated the specific answer to a question that Russ Feingold asked in March 2009, but which DOJ didn’t respond to until November 2010, when Feingold was a lame duck Senator. At issue were new investigative guidelines Attorney General Michael Mukasey issued in late 2008, on his way out the door, which allowed the FBI to investigate Americans for First Amendment reasons so long as that First Amendment reason was not the only reason they were being investigated.

Here’s how the ACLU described the new guidelines:

Under the new “assessment” authority, FBI agents can investigate anyone they choose, so long as they claim they are acting to prevent crime, protect national security, or collect foreign intelligence, with absolutely no requirement of a factual connection between their authorizing purpose and the conduct of the individuals they are investigating. FBI agents can start “assessments” without any supervisory approval, and without reporting to FBI headquarters or the Department of Justice. The Guidelines do not require the FBI to keep records regarding when “assessments” are opened or closed and “assessments” have no time limitation. The FBI can even start an “assessment” of you simply to determine if you would make a good FBI informant. Innocence no longer protects ordinary Americans from being subjected to a wide range of intrusive investigative techniques. The techniques include:

  • collecting information from online sources, including commercial databases.
  • recruiting and tasking informants to gather information about you.
  • using FBI agents to surreptitiously gather information from you or your friends and neighbors without revealing their true identity or true purpose for asking questions.
  • having FBI agents follow you day and night for as long as they want.

So in response to Feingold’s questions about how many assessments had been initiated and closed, FBI responded:

The FBI has initiated 11,667 Type 1 and Type 2 assessments, 3,062 of which are ongoing. 427 preliminary and full investigations have been opened based upon information developed in these Type 1 and Type 2 assessments. 480 Type 3, 4, 5, and 6 assessments have been initiated, of which 422 remain open.

To do the math, 95% of the Type 1 and 2 assessments that have been closed have resulted in no further investigation, suggesting the FBI was on a wild goose hunt.

But here’s the tricky thing: the FBI records on those people can be entered into FBI’s investigative databases!

Even if information obtained during an assessment does not warrant opening a predicated investigation, the FBI may retain personally identifying information for criminal and national security purposes. In this context, the information may eventually serve a variety of valid analytic purposes as pieces of the overall criminal or intelligence picture are developed to detect and disrupt criminal and terrorist activities. In addition, such information may assist FBI personnel in responding to questions that may subsequently arise as to the nature and extent of the assessment and its results, whether positive or negative. Furthermore, retention of such information about an individual collected in the course of an assessment will alert other Divisions or Field Offices considering conducting an assessment on the same individual that the particular individual is not a criminal or national security threat. As such, retaining personally identifying information collected in the course of an assessment will also serve to conserve resources and prevent the initiation of unnecessary assessments and other investigative activities.

So that says the FBI may be entering those 95% innocent people into a database with personally identifiable information.

Now, to be fair, FBI also mandates that these personally identifying information contain a warning that the person “does not warrant further FBI investigation at this time.”

As a result: (i) when records retained in an assessment specifically identify an individual or group whose possible involvement in criminal or national security threatening activity was checked out through the assessment; and (ii) the assessment turns up no sufficient basis to justify further investigation of the individual or group, then the records must be clearly annotated as follows: “It is noted that the individual or group identified during the assessment does not warrant further FBI investigation at this time. It is recommended that this assessment be closed.”

And, as Charlie Savage notes, the numbers FBI gave Feingold may not be all that accurate.

Some aspects of the statistics are hazy, officials cautioned.

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BREAKING!! White Terrorists to Be Treated Like Brown Terrorists!!

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All the discussion about the wisdom or legality of Eric Holder’s unilateral change to Miranda procedure for “operational terrorists” (Evan Perez story, Charlie Savage story, bmaz post) seems to be missing a stunning detail.

The memo laying out the change in procedures apparently doesn’t distinguish between foreign terrorists (that is, members of al Qaeda) and domestic terrorists (presumably including self-radicalized Muslims, but also white supremacists, and abortion doctor killers). Indeed, Perez’ article uses the term “domestic-terror” three times. I asked Savage about this specifically, and he said that while the preamble of the memo notes international terrorist groups are of particular danger (a claim I’m not convinced holds up after 10 years of the GWOT and the recent rise in right wing hate groups), the memo seems to apply to all “operational terrorists.”

Whatever the hell that means.

Update: Savage has made the text of the memo available here. Here’s how it describes an operational terrorist:

For these purposes, an operational terrorist is an arrestee who is reasonably believed to be either a high-level member of an international terrorist group; or an operative who has personally conducted or attempted to conduct a terrorist operation that involved risk to life; or an individual knowledgeable about operational details of a pending terrorist operation.

The latter two descriptions–an operative who “has personally … attempted to conduct a terrorist operation that involved risk to life” or “an individual knowledgeable about operational details of a pending terrorist operation” seem in no way limited to international terrorist groups. Furthermore, the third category, someone who knows about a pending attack, might not even be a terrorist himself.

Now, as much as I think the policy is ill-considered, at one level the application of it to white terrorists along with brown ones is, IMO, a good thing. After all, if the reason for the change in Miranda derives from “operational” risk, then nothing really does distinguish between the danger of an imminent attack by a white guy and the danger of an imminent attack by a brown guy. So to take any other approach–to apply the Miranda change just to brown terrorists–would demonstrate the claimed reason for it to be false.

Moreover, this country will never begin to restore a balance between rule of law and security until white terror suspects are treated according to the same abusive rules as brown terror suspects. I mean, you really think Peter King would be so thrilled about this change (as reported in Perez’ story) if he realized that the same rules might apply to white supporters of terrorists like him?

New York Republican Peter King, chairman of the House homeland-security committee, is among the lawmakers who welcomed Mr. Holder’s call to change Miranda. At a hearing last year, Mr. King said, “It’s important that we ensure that the reforms do go forward and that at the very least the attorney general consults with everyone in the intelligence community before any Miranda warning is given.”

All that said, what is the first non-distinction between foreign and domestic terrorists of the GWOT that I know of is deeply troubling.

It was inevitable, of course, that as the US continues its success at shutting down al Qaeda abroad, and as the government increasingly has to point to self-radicalized terrorists (or young Muslim men entrapped as such) to justify their expanded GWOT powers, and as it became increasingly clear that right wing terrorists pose as great a threat domestically and–with the MLK bomber–have the same operational sophistication as Islamic terrorists, that the limits on special terror-related authorities would begin to break down. But there’s really no protection against a further breakdown here. Soon, environmental activists (already officially classified as terrorists according to DOJ and DHS) will have their Miranda rights withheld because they were “operationally” prepared to strike at property, not people. And from there it won’t take long to deny peace activists their Miranda rights because they support humanitarian groups that might be trying to persuade terrorists to adopt peaceful tactics.

In spite of all the myths government lawyers have told themselves, in secret, to pretend the assault on privacy and civil liberties in the name of a war on terror is different from that of the 60s, we were always on a slippery slope that would eventually defy all those myths.

And limiting the Miranda rights of white terror suspects along with brown terror suspects is just one more important step down that slippery slope.

Update: Also note that the text of the memo allows individual agents to decide whether someone should be deprived of their Miranda rights.

As noted above, if there is time to consult with FBI-HQ (including OGC) and Department of Justice attorneys regarding the interrogation strategy to be followed prior to reading the defendant his Miranda rights, the field office should endeavor to do so. Nevertheless, the agents on the scene who are interacting with the arrestee are in the best position to assess what questions are necessary to secure their safety and the safety of the public, and how long the post-arrest interview can practically be delayed while interrogation strategy is being discussed. [my emphasis]

If I had any confidence DOJ’s Inspector General would have the same integrity in the future it had under Glenn Fine, I’d bet a ton of money that we see an IG Report describing the very predictable abuse that came out of this memo.

DOJ’s New Miranda Policy Betrays Constitution & Power of Judiciary

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The proclivity of the Obama Administration to simply do as it pleases, whether it violates the Constitution, established authority or the separation of powers doctrine is beyond striking. Last week at this time they were ignoring the Constitutional right of Congress, the Article I branch, to be the determinative branch on the decision to take the country to war. Today Mr. Obama’s Department of Justice has stretched its ever extending arm out to seize, and diminish, the power and authority of the judicial branch and the US Constitution.

Specifically, the DOJ has decided to arrogate upon itself the power to modify the Constitutionally based Miranda rights firmly established by the Article III Branch, the Supreme Court. From Evan Perez at the Wall Street Journal:

New rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades.

The move is one of the Obama administration’s most significant revisions to rules governing the investigation of terror suspects in the U.S. And it potentially opens a new political tussle over national security policy, as the administration marks another step back from pre-election criticism of unorthodox counterterror methods.

The Supreme Court’s 1966 Miranda ruling obligates law-enforcement officials to advise suspects of their rights to remain silent and to have an attorney present for questioning. A 1984 decision amended that by allowing the questioning of suspects for a limited time before issuing the warning in cases where public safety was at issue.

That exception was seen as a limited device to be used only in cases of an imminent safety threat, but the new rules give interrogators more latitude and flexibility to define what counts as an appropriate circumstance to waive Miranda rights.

A Federal Bureau of Investigation memorandum reviewed by The Wall Street Journal says the policy applies to “exceptional cases” where investigators “conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.” Such action would need prior approval from FBI supervisors and Justice Department lawyers, according to the memo, which was issued in December but not made public.

This type of move has been afoot for almost a year, with Eric Holder proposing it in a string of Sunday morning talk shows on May 9, 2010 and, subsequently, based on Holder’s request for Congressional action to limit Miranda in claimed terrorism cases, Representative Adam Smith proposed such legislation on July 31, 2010. Despite the howling of the usual suspects such as Lindsay Graham, Joe Lieberman, etc. the thought of such legislation died in the face of bi-partisan opposition from a wide range of legislators who actually understood Constitutional separation of powers and judicial authority. They knew the proposed legislation flew in the face of both concepts. And they were quite Read more →

David Kris Resigns from DOJ

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The U.S. Department of Justice just announced that Assistant Attorney General David Kris just resigned, effective March 4.

“David Kris led the National Security Division (NSD) with great distinction through a period when the department confronted a number of threats to the nation’s security, and there is no doubt that his tireless work helped keep the American people safe,” said Attorney General Eric Holder. “I will miss his leadership.”

“I am grateful for my two years of service as Assistant Attorney General for National Security,” Kris said. “I started my legal career at the Department of Justice, and it has been a tremendous privilege to work with the department’s leadership and the dedicated professionals in the National Security Division.”

As Assistant Attorney General for National Security, Kris helped lead the department’s response to a number of serious threats to the nation, including the attempted bombing of Times Square, the al-Qaeda plot to bomb the New York subway system, the attempted detonation of a bomb onboard an airliner on Christmas Day 2009, and the arrest and prosecution of Mumbai plotter David Headley.

Under Kris’ leadership, the National Security Division also played a pivotal role in the investigation, arrest and swap of Russian illegal agents during the summer of 2010, and prosecuted a number of other significant espionage cases, including Kendall and Gwendolyn Myers, who were caught and prosecuted after decades of spying for the government of Cuba. The division also continued and expanded its enforcement in the areas of export control and counter-proliferation.

During Kris’ tenure, the National Security Division also strengthened its partnerships with the intelligence community and other national security elements, including the Department of Defense and the National Security Council, and advanced significantly in establishing the processes, policies, and procedures necessary to make NSD a highly effective and fully functioning division.

No reason for his departure was given, though Kris did mention his two year tenure; that might explain the March departure, two years after he was confirmed.

DOJ didn’t list it among Kris’ accomplishments, but two other things he is noted for are:

  • Making it clear that the Bush Admin justification for illegal wiretapping — which Holder’s DOJ has never withdrawn — didn’t make any sense
  • Testifying that we probably couldn’t charge material support for terrorism in military commissions

That is, he was willing to admit, on occasion, when DOJ was pushing the limits of its legal authority. Which means he will be missed.

“Our” Terrorist Goes on Trial

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Today, Luis Posada Carrilles goes on trial. Posada is, of course, the Cuban-American who was a CIA asset for at least the Bay of Pigs era and almost certainly for years after. Among other things, he orchestrated the bombing of a Cuban plane in 1976, and more recently involved in the bombing of Cuban tourist sites in 1997.

He’s not being tried for terrorism. Instead, he’s being tried for lying about his terrorism.

Nevertheless, as Peter Kornbluh notes, it’ll be the first time evidence of his terrorism gets introduced into trial in this country.

In the annals of modern justice, the Posada trial stands out as one of the most bizarre and disreputable of legal proceedings. The man identified by US intelligence reports as a mastermind of the midair destruction of a Cuban airliner—all seventy-three people on board were killed when the plane plunged into the sea off the coast of Barbados on October 6, 1976—and who publicly bragged about being behind a series of hotel bombings in Havana that killed an Italian businessman, Fabio Di Celmo, is being prosecuted for perjury and fraud, not murder and mayhem. The handling of his case during the Bush years became an international embarrassment and reflected poorly on the willingness and/or abilities of the Justice Department to prosecute crimes of terror when that terrorist was once an agent and ally of America. For the Obama administration, the verdict will carry significant implications for US credibility in the fight against terrorism, as well as for the future of US-Cuban relations.

[snip]

To its credit, the Justice Department did quietly empanel a grand jury in New Jersey to weigh an official indictment of Posada for masterminding the hotel bombings in Havana. (Evidence gathered by the FBI indicates that Posada raised funds for that operation from Cuban-American benefactors in Union City, New Jersey.) In April 2006 government lawyers decided to hold a naturalization interview with Posada while he was in jail, surreptitiously gathering self-incriminating evidence against him in the hotel bombing case.

But, for reasons that remain under seal, the New Jersey grand jury proceedings stalled. Initially, as a senior State Department official confided, prosecutors were unable to secure a key piece of evidence—the tape recordings of an interview Posada had given to then–New York Times stringer Ann Louise Bardach in 1998, in which he appeared to take full responsibility for the hotel bombings. “The Italian was in the wrong place at the wrong time, but I sleep like a baby,” Posada proclaimed, according to his statements published in the Times. Under subpoena, Bardach turned over the tapes to the grand jury on December 15, 2006. But no indictment was ever handed down.

Instead, on January 11, 2007, Posada was indicted in El Paso on six counts of making “false statements” and one of fraud about how he came to the United States and for his use of false names and false passports—charges that carry an maximum sentence of five to ten years each. To make matters worse for the credibility of the US legal system, four months later Judge Kathleen Cardone dismissed all charges against Posada. The government, she ruled, had engaged in “fraud, deceit and trickery” in obtaining evidence against Posada under the guise of conducting a naturalization review. The court, she declared, could “not set aside [Posada’s legal] rights nor overlook Government misconduct [just] because Defendant is a political hot potato.”

A free man, Posada took up residence in Miami. Since he is on the government’s no-fly list, Posada was forced to drive back to Florida, where he has lived openly for the past several years, attending right-wing exile fundraisers and even participating in public protests against Castro’s Cuba.

But in August 2008 the US Court of Appeals for the Fifth Circuit overruled Cardone’s decision and ordered Posada to proceed to trial. In another positive turn of events in this long, twisted legal saga, in April 2009 the new Obama Justice Department used the New York Times tapes of Posada’s interview with Bardach to file several additional counts of perjury and fraud relating specifically to lying about “soliciting other individuals to carry out…[the hotel] bombings in Cuba.” To be sure, Posada is still not being charged with actually perpetrating those terrorist operations, only with lying about aspects of his involvement in orchestrating them. But for the first time in a US court, a team of lawyers from the Justice Department’s Counterterrorism Division will present concrete evidence to prove that Posada was indeed behind a series of terrorist attacks on Cuban soil.

Now, it always pays to be skeptical about the possibility the United States will hold its old terrorist, Posada, accountable for later acts of terrorism that we may not have officially sanctioned. While most of the efforts to avoid trying him have come under Bush (whose father reportedly was tied to the Bay of Pigs invasion, was director of the CIA at the time of the 1976 Posada bombing, was directly implicated in Iran-Contra, and was President during the 1997 bombings in question [pre-coffee f-up]), it’s not clear the Obama Administration is any more willing to hold “our” terrorists–or those of our allies–accountable.

Also (as Kornbluh further explains in his article), the government was unable to exclude evidence of Posada’s ties to the CIA from trial. Particularly given that DOJ just indicted a former CIA officer who alleges he was ordered to lie in his memoirs, it will be fairly easy for Posada to say he lied about his involvement in terrorism as he was required to to protect the CIA.

And while we’re used to American hypocrisy on this front, the trial will be closely watched in Latin America. Even while we’re claiming that Posada illegally entered the US, we are refusing to extradite Posada to Venezuela. And the Wikileaks cables reveals our further inconsistency on the treatment of terrorism. While we like to pressure countries like Brazil without great evidence, we treat the claims of Bolivia’s government very skeptically. Yet here, the evidence is clear that Posada is a terrorist.

But chances are high that Posada, like Scooter Libby, will never see jail time for his alleged perjury.

But it will be worth watching to see whether the US is willing and able to put one of the Western Hemisphere’s most celebrated terrorists in prison.

A Signing Statement to Protect Presidential Powers Obama Won’t Commit to Use

/in , /by

That’s the short version of this Dafna Linzer story on Obama Administration plans to combat Congressional efforts to keep Gitmo open forever. Obama will include a signing statement with the appropriations bill asserting that limits on what he can do with Gitmo are unconstitutional [see update below].

Obama administration officials say they plan to reject Congressional efforts to limit the president’s options on Guantanamo, setting the stage for a confrontation between the president and the new Congress on an issue that has been politically divisive since Inauguration Day.

[snip]

White House aides are recommending that President Obama sign the spending bill and then issue a “signing statement” challenging at least some of the Guantanamo provisions as intrusions on his constitutional authority.

[snip]

If the bill were signed without challenge, the remaining prosecutorial option left for the administration would be to charge detainees in military commissions at Guantanamo, with those convicted serving time at the facility. So far, the administration has been unwilling to bring new charges in that setting.

“The bill,” said one administration official, “undermines the principles outlined in the president’s archives speech and there is no way to pretend you are closing Guantanamo if that law goes through unchallenged.” [my emphasis]

Note, this unnamed administration official used that word, “pretend,” not me.

But, Linzer goes on, the Administration has not yet decided whether Obama will use these powers he is trying to protect.

The White House has, until now, balked at confrontation even as it watched its policy options dwindle. Not one administration official who spoke about the internal deliberations could say for sure whether the White House, in moving to protect the right to prosecute detainees in federal court, would in fact use it.

“All presidents want to preserve maneuverability and authority, that is natural,” said Elisa Massimino, president of the civil rights organization Human Rights First. “But President Obama has had the authority to move prisoners to the United States, he’s done the background work to identify people to bring to justice and he’s squandered the opportunities to exercise that authority. It is striking to now see a fiercer desire to preserve authority than to use it,” she said. [my emphasis]

Apparently, I guess, Obama’s just going to fight Congress on this to protect presidential power for Dick Cheney to use in a future Republican administration, not to use himself.

Now, aside from my concerns about the separation of powers on this move, I’m amused by the centrality of prosecutorial discretion in it.

After all, the whole point of guarding the executive branch’s prosecutorial discretion is to shield it from the whims of politics, to ensure the integrity of prosecutorial decision making.

But Obama threw that integrity out the window when he allowed his Chief of Staff to override the Attorney General’s authority on Gitmo generally and the location of the 9/11 trial specifically. So Obama’s going to argue he needs to protect prosecutorial discretion, but it’s a prosecutorial discretion already tainted by White House interference.

Which means this plan–to use a signing statement to demand prosecutorial independence–amounts to Obama stating that only he (well, and his former Chief of Staff Rahm Emanuel), not Congress, gets to interfere politically with prosecutorial decision-making.

Update: As MadDog notes, Linzer has updated her piece to note that the signing statement may make no constitutional complaint, but simply note Obama’s opposition to that part of the law.

Others have recommended that he express opposition to the Guantanamo sections without addressing their constitutionality.

I guess that would serve the purpose of “pretending” to want to close Gitmo without having to try too hard.