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The Protective Order on Khadr’s Interrogators and the John Adams Project

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In addition to the bombshell that Omar Khadr’s military commission will start Wednesday, less than a day after lawyers in the case will have received the thick manual laying out the rules for the newfangled military commissions, Gitmo released one more thing today: the protective order covering “intelligence identities” that applied to Khadr’s old-fangled military commission. (h/t Carol Rosenberg)

Given the witch hunt launched against the John Adams project (in which detainee lawyers employed investigators to figure out the identity of detainees’ torturers, in response to which the CIA has been demanding the lawyers be charged with violating the Intelligence Identities Protection Act), I’m particularly interested in this language (assuming, of course, that these protective orders are fairly standard).

2. Accordingly, IT IS HEREBY ORDERED:

a. Names or other identifying information of intelligence personnel that have been or may, from time to time, be disseminated to or obtained by the Defense Counsel for the accused, may be disclosed to members of the Defense team, such as paralegals, investigators, and administrative staff, with an official need to know. However, such information shall not be disclosed to the accused or to anyone outside of the Defense team other than the Military Commission panel subject to the limitations below;

b. Unless disclosure has been authorized by the Military Judge, names or other identifying information of any intelligence personnel shall not be disclosed in open court or in any unsealed filing. Any mention of the name or other identifying information of intelligence personnel must occur in closed session and any filing to the Military Commission panel that includes such information shall be filed under seal.

First, let’s read a: “Names or other identifying information of intelligence personnel that have been or may, from time to time, be disseminated to or obtained by the Defense Counsel for the accused”–note they don’t explain why those intelligence personnel would have been disclosed to defense counsel. And they also describe both “names” and “identifying information”–which would presumably include photographs (the CIA is particularly pissed that pictures of interrogators have been passed among detainees at Gitmo).

It goes on: “However, such information shall not be disclosed to the accused.” I’m curious what you lawyers think about this? Is there a parallel in civilian trials? In any case, the protective order makes it clear that the government is trying to protect these identities, first of all, from disclosure to those who were abused by said intelligence personnel.

Then there’s part b: “Unless disclosure has been authorized by the Military Judge, names or other identifying information of any intelligence personnel shall not be disclosed in open court or in any unsealed filing.” Call me picky, but this seems to be sloppy writing here. Since this passage does not refer explicitly back to part a, it would seem that the prohibition on disclosing “such information” would not be limited to information “disseminated” to lawyers for the accused. And in any case, part a includes language about information “obtained by” lawyers for the accused.

What is the significance of this for lawyers who, in an attempt to get information not disseminated (and therefore witnesses who may have exonerating information not produced) have gotten investigators to find out the identities of those who tortured their clients? Furthermore, note that the protective order doesn’t qualify the limit of those whose identities are protected here at all. What happens if a defense lawyer doesn’t know if someone is an intelligence professional but has a suspicion that the person might have been the guy who tortured his client, and in any case is probably a contractor? Does showing the client a picture count as disclosing identifying information, even if the only one who can confirm that the person in question is affiliated (however loosely) with US intelligence is your client?

In any case, this protective order only calls for sanctions, not the IIPA charges that CIA seems to be clamoring for. And this protective order appears to have been operative in 2007, not necessarily 2009 and 2010. I’m not a lawyer, but if the CIA is trying to equate this with security agreements in order to criminally charge defense attorneys, I’m skeptical it’ll work.

But it does give one snapshot of how Kafkaesque the Bush-era military commission process was (as distinct from how Kafkaesque the Obama-era one day rule cramming is).

John Adams and Patrick Fitzgerald

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About a million of you, seeing Isikoff and Hosenball’s and Justin Elliott’s coverage of a story about Fitzgerald getting involved in an investigation of how photos of torturers ended up at Gitmo have emailed me the story in alarm. (This is a story I first covered 8 days ago.)

I’m going to attribute the alarm to the fact that neither Newsweek nor Elliott mention Bill Gertz’s much more detailed and informative story that first broke this. And to the use of phrases like “most feared,” “paparazzi,” “national controversy,” “star prosecutor,” which sensationalize the story more than it appears to merit, at least thus far.

Here’s what I think is going on:

1) DOJ has been investigating the John Adams Project since last August to find out how photographs of torturers got into the hands of detainees at Gitmo. The JAP has employed a Private Investigator to track down likely interrogators of detainees, to take pictures, get a positive ID, and once done, call those interrogators as witnesses in legal proceedings. DOJ appears concerned that JAP may have made info–learned confidentially in the course of defending these detainees–available to those detainees, and therefore violated the protective order that all defense attorneys work under. Yet JAP says they collected all the info independently, which basically means the contractors in question just got caught using bad tradecraft.

2) DOJ appears to believe no crime was committed and was preparing a report to say as much for John Brennan, who will then brief Obama on it.

3) But CIA cried foul at DOJ’s determination, claiming that because one of the lawyers involved, Donald Vieira, is a former Democratic House Intelligence staffer, he is biased.  They seem to be suggesting that Vieira got briefed on something while at HPSCI that has biased him in this case, yet according to the CIA’s own records, he was not involved in any of the more explosive briefings on torture (so the claim is probably bullshit in any case). After CIA accused Vieira of bias, he recused himself from the investigation.

4) So apparently to replace Vieira and attempt to retain some hold on DOJ’s disintegrating prosecutorial discretion, DOJ brought in Patrick Fitzgerald to pick up with the investigation. Fitz, of course, a) has impeccable national security credentials, and b) has the most experience in the country investigating the Intelligence Identities Protection Act, having investigated the Torturer-in-Chief and his Chief of Staff for outing CIA spy Valerie Plame. In other words, DOJ brought in a guy whom CIA can’t bitch about, presumably to shut down this controversy, not inflame it.

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The Torture Apologists Ratchet Up the Attack

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You know how the Moonie Times let go almost all of its “journalists” last year? Well, apparently they haven’t let go of their CIA mouthpiece (not a surprise, I guess, since MT has always been one big disinfo campaign), Bill Gertz. And he’s out this morning suggesting (though not saying explicitly) that the CIA wants human rights lawyers trying to identify the people who interrogated their clients investigated for Intelligence Identity Protection Act violations–the crime Dick Cheney got away with when he outed Valerie Plame. (h/t MadDog)

As a reminder, detainee defense lawyers have undertaken what they call the John Adams Project–an effort to take pictures of suspected interrogators that they can show to their clients to positively ID. The hope is to call detainees’ interrogators to testify at their habeas proceedings and/or criminal trials. Of course, this information should be available to detainees in any case, but the government routinely protects it under national security classification rules.

The CIA, of course, is apoplectic that its interrogators might be tied to what they did to these detainees. So, in a brief to longtime CIA guy and now top Homeland Security advisor to Obama, John Brennan, they appear to be trying to suggest the John Adams project be investigated for IIPA violations. And because one of the DOJ staffers is a former House Intelligence Committee staffer (but not, according to the CIA, one of the guys briefed during the most secretive torture briefings), and because the torture apologists are already conducting a witch hunt of those at DOJ they say are al Qaeda sympathizers, Vieira has recused himself and DOJ has apparently brought in Patrick Fitzgerald Read more →

Pat Fitzgerald Chose Not to Consult with Margolis on Rove Indictment

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I recognize that at some point I’m going to have to read Karl Rove’s book propaganda. But until I find it lying around somewhere for almost-free right next to at least a six-pack of equally almost-free beer, I’m going to let Main Justice read it so I don’t have to. They’ve got a fairly detailed post of Rove’s spin on his interactions with Fitz–one of the most interesting tidbits of which (given recent events) is that Rove’s lawyer Robert Luskin tried to get Fitz to allow David Margolis to review his decision to indict Rove, but he chose not to do that.

After the October [2005] grand jury testimony, Fitzgerald called Rove’s lawyer, Robert Luskin, and said they were leaning towards an indictment, Rove wrote. Luskin arranged to fly to Chicago to talk with Fitzgerald about the case and urged the prosecutor to consult with others in the Justice Department. In particular, Luskin recommended Fitzgerald talk to David Margolis, the DOJ’s highest-ranking career official and a 45-year veteran of the department. Fitzgerald eventually decided against contacting Margolis, Rove wrote, but agreed to bring in two other lawyers in the Chicago U.S. attorney’s office who had previously been uninvolved with the case to re-examine his thinking.

In an epic five-hour meeting, Luskin and Fitzgerald hashed out the various aspects of the case against the White House adviser. At the meeting, Fitzgerald said he was bothered by Rove’s non-recollection of the conversation with Cooper. If Rove did not remember the conversation with Cooper, Fitzgerald asked, why did he ask his aides in January 2004 to go through his phone records and notes to find any evidence of contact with Cooper? Luskin had the surprising answer, Rove wrote. The lawyer had learned from a friend who worked at Time that Cooper told colleagues he had spoken with Rove about Plame.

The tidbit is interesting not just because Fitz chose not to let DOJ’s fixer decide whether or not Karl would get indicted, but also for what that suggests about how much oversight Margolis had over Fitz’s decisions more generally. And remember, Margolis would have just barely taken over from Comey (who left DOJ in August 2005) as Fitz’s direct supervisor on this case in fall 2005.

Oh–and as I said probably 4 years ago–it was a journalist who helped Rove avoid any consequences for his role in leaking Plame’s identity.

Go figure.

Cheney’s Betrayal Made an IIPA Charge for Libby Possible

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HungOutToDry_EWYesterday, I showed the many ways that Dick Cheney hung his purportedly valued aide, Scooter Libby, out to dry in his interview with Patrick Fitzgerald.

But I didn’t do a very good job of explaining the consequences of that action from Cheney. Luckily, perris did that for me.

As a reminder, I’ve shown over the years that a great deal of circumstantial evidence suggests that Dick Cheney ordered Scooter Libby to leak a number of things to Judy Miller on July 8, 2003: The NIE (as Libby testified), but also the report from Joe Wilson’s trip and Valerie Wilson’s identity. From public reporting, it always looked like Cheney had constructed a firewall to defend against an IIPA violation. If Fitzgerald ever proved that Libby leaked Valerie Wilson’s identity to Judy Miller knowing she was covert, then Cheney could claim that he had insta-declassified her identity, thereby giving that leak a legal defense, however dubious. Cheney even went so far to imply to Tim Russert that he hypothetically could have declassified Valerie Wilson’s identity.

Q There was a story in the National Journal that Cheney authorized Libby to leak confidential information. Can you confirm or deny that?

THE VICE PRESIDENT: I have the authority as Vice President under an executive issued by the President to classify and declassify information. And everything I’ve done is consistent with those authorities.

Q Could you declassify Valerie Plame’s status as an operative?

THE VICE PRESIDENT: I’ve said all I’m going to say on the subject, Tim.

But Cheney’s denials of all knowledge of the Plame leak during his Fitzgerald interview would have made that defense impossible.

[Cheney] has no personal knowledge of anyone having provided [Mrs. Wilson’s employment] to Robert Novak, or any other reporter.

[snip]

he does not recall having a conversation with the President about the Wilsons. [note, Cheney goes on to contradict this claim]

[snip]

He does not recall discussing Valerie Wilson with Libby prior to her name appearing in Novak’s column on 7/14/03.

[snip]

His handwritten notes on the 7/6/03 editorial about Wilson’s trip and the involvement of Wilson’s wife in the CIAs selection of Wilson was triggered by his recollection of the prior telephone conversation he had with George Tenet, wherein Tenet identified Wilson’s wife as an employee of the agency. The Vice President also indicated that he never discussed the substance of his call with Tenet with anyone prior to the publication of Valerie Wilsons identity in Novak’s 7/14/03 newspaper column. [Note, earlier he had said he may have told Libby]

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Hung Out to Dry: One Former VP Chief of Staff

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HangingScooterOutToDryIf I were Scooter Libby right now, I’d be seething. I’d be utterly disgusted with the way Dick Cheney hung me out to dry, over and over and over, in his interview with Fitzgerald. Cheney denies any knowledge of issues he and Libby worked on together repeatedly and he denies that his own orders and instructions had anything to do with activities that ultimately (though Cheney of course didn’t admit this) ended up outing Valerie Wilson.

There are three general categories of information about which Cheney hangs Libby out to dry.

These are:

Oppo research conducted during week of June 9, 2003

While not asked directly, Cheney pretended to know nothing about Libby being tasked to collect information on the Wilsons starting the week June 9, 2003. Cheney claimed not to remember the document dump he received on June 9, 2003, compiled by John Hannah. (7) He went on to claim that he might not have seen Wilson’s trip report until after Wilson’s op-ed. (9) But not only did he receive a briefing on this material, but he was trying to get that information released even before the op-ed came out.

Cheney further claimed “he is unaware of anyone in the administration conducting any research or completing a research project on either Joe Wilson or his wife. He advised that he never directed anyone on his staff to conduct such a project and no one advised him they were working on one.” (13) Of course, Libby kept a Wilson folder during the leak period and into the investigative period. Cheney, I guess, claims he knew nothing about that.

This allows Cheney to disconnect his own research at CIA (and elsewhere, probably) into Wilson’s trip from Libby’s activities. While Cheney admitted to having learned of Plame from Tenet (note, I have reasons to doubt this was his only source), he denied discussing Plame with Libby. (13) Yet, Libby reminded Cheney–in October 2003–that there was a note reflecting Cheney informing Libby of Plame’s identity, so not only should Cheney have remembered the event itself, but he should have remembered the reminder.

And Cheney downplayed his involvement in responding to Walter Pincus’ questions about Wilson the week of June 9. “[A]ny press inquiries about the trip that may have been made by Walter Pincus in preparation for his June 2003 article … would have gone to either Libby or Cathie Martin.” (4) However, Cheney and Libby and Martin met on June 11, 2003 at 1:05PM about Pincus’ requests, and from that meeting called Robert Grenier, ostensibly for a first explanation about how the trip had been generated (though at that point both Libby and Cheney almost surely knew of Plame’s identity). Cheney went on to claim he could not remember discussing Plame with Cathie Martin, nor remember Martin telling him that she had learned of Plame’s identity. (11)

Now, frankly, Libby himself never admitted how goal-oriented his actions were during this week. He downplayed the importance of a note, from first thing that Monday morning and just hours after Condi got beat up on ABC News, reflecting learning of Bush’s concern about Wilson’s allegations. Libby himself claimed to have forgotten being told three times that week of Plame’s identity. And Libby also didn’t explain that he and Cheney–at a time when they almost certainly knew of Plame’s identity–called CIA to re-learn it for Cathie Martin’s benefit. So to some extent, Cheney’s denials may help Libby here. And Cheney may be feigning ignorance to protect his sources of Plame’s identity–who are likely not limited (as Cheney claims) to George Tenet. And, if Bush did order Libby to take the lead on this, then Cheney’s forgetfulness may protect Bush here.

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Does Lanny Breuer Have a Conflict in the Cheney Interview FOIA Case?

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Assistant Attorney General Lanny Breuer’s background has been a key topic of discussion in CREW’s lawsuit to force DOJ to release Dick Cheney’s interview with Patrick Fitzgerald. The problem is, DOJ forgot to reveal that Breuer had represented one of the people involved with issues directly related to Cheney’s interview.

DOJ needed an expert on investigations of White House officials–so they got Breuer

During a hearing on whether or not DOJ should release Dick Cheney’s interview with Patrick Fitzgerald back in June, Judge Emmet Sullivan suggested that DOJ ought to have someone with actual experience in investigations of high level White House officials make their argument that releasing Cheney’s interview would make such investigations more difficult in the future.

MR. SMITH: In this case I don’t see — the law enforcement issue here is very unique and it’s very different than I think in Sussman and in most other cases. It’s an interest, it’s basically a chilling interest that if the Vice-President’s interview is released, that could have a chilling effect on future senior leadership.

THE COURT: Says who?

MR. SMITH: Says the Attorney General Mukasy [sic], that was his conclusion.

THE COURT: He didn’t file a declaration. Mr. Bradbury filed a declaration. He didn’t base it upon any experience, he didn’t base it upon anything. He didn’t articulate the bases for his declaration. Other than he was designated to follow declaration. So it wasn’t Mr. Mukasy [sic] who filed the declaration which arguably could have carried great weight. If the chief law enforcement officer says based on my experience and experience of others in law enforcement, it could have but that’s not the case here. Bradbury was a political appointee. I don’t know what his experience was. He was appointed to, maybe he was appointed to file this declaration. I don’t know what else he did. He’s no longer there at OLC. And essentially the government in footnote says I should defer to his declaration.

This is not a deferential review. I want to be clear I’m not suggesting that the Attorney General should sign a declaration. I’m not ordering, certainly not ordering him to do anything, but I’m just saying in response to what you just said arguably it could have carried greater weight for such a declaration to come from a law enforcement official based upon his or her experiences with respect to this chilling effect. Otherwise, it’s just an assumption this man makes based upon nothing he can point to. [my emphasis]

So rather than have the discredited Steven Bradbury submit this declaration, DOJ got Breuer to do so. After Breuer submitted a statement arguing that release of Cheney’s interview will present some new disincentive for high level White House officials in the future to cooperate that thirty years of routine release don’t already present, CREW questioned what basis Breuer had to make that claim.

The only experience plaintiff is aware of Mr. Breuer having with law enforcement investigations involving the White House is his tenure as special counsel to President Clinton during the Independent Counsel’s “Whitewater” investigation. Read more →

“Protecting” President Cheney, Too

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In today’s second installment on ways American taxpayers are wasting money to protect Dick Cheney from embarrassment, Josh Gerstein has a report on today’s hearing on CREW’s FOIA of Cheney’s interview in the CIA Leak Case. And DOJ is unabashedly making the argument that it should not release Dick Cheney’s interview because it might embarrrass him. (h/t MadDog)

Smith said the Justice Department’s view was that a delay of five to ten years was appropriate, marked from the time the official or his or her administration left office. “It’s a judgment call,” Smith acknowledged.

Smith suggested that such a delay would make it more likely that the information was used for historical purposes and not for political embarrassment. “The distinction is between releasing it for historical view and releasing it into the political fray,” Smith said.

Funny, DOJ claimed it was arguing for the longer-than-statutes-of-limitation delay because of concerns that future Vice Presidents wouldn’t cooperate willingly with investigations. As time goes on an their arguments look shittier and shittier, I guess, they become more and more truthful. Thus their invention of a new FOIA embarrassment exemption.

It sounds like Emmet Sullivan is not buying that argument–though he is also unwilling to just order the release of the interview without giving Obama’s DOJ an opportunity to waste more money protecting Cheney from embarrassment.

As the hearing concluded, Sullivan said he thought Congress had drawn a “bright line” with language in the Freedom of Information Act that generally exempts information about pending investigations from disclosure, but not closed probes, like the CIA leak case. He also said he would stay any ruling so the government could appeal before he released any documents.

President Obama? Attorney General Holder? This nonsense has gone on long enough. As I noted, Cheney’s participation in this probe is proof enough that the investigative concerns are bunk. It really is high time to stop wasting money preventing taxpayers from learning what Cheney did in our name.

Im-me-di-ate: adjective (DOJ) 1. More Than 2 Years

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Goddamn did DOJ bring the stupid in their response to CREW’s brief in its Cheney interview FOIA.

745 days ago, George Bush commuted Scooter Libby’s sentence, thereby ensuring that Scooter Libby would not testify about whether–as all the evidence indicated–Dick Cheney had ordered him to leak Valerie Wilson’s identity to Judy Miller. 745 days ago, for all intents and purposes, the investigation of Dick Cheney’s involvement in outing a CIA officer ended in the dead end of Scooter Libby’s successful criminal obstruction of justice.

Yet DOJ describes CREW’s efforts to get Cheney’s interview report via FOIA to be an attempt to get "a ruling that would make public interview reports of high ranking White House officials immediately upon the conclusion of the relevant investigation." For the whizzes in DOJ, I guess, 745 days equates to "immediate."

But that’s not the only heap of stupid they bring in this filing.

Next, these whizzes argue that if DOJ turns over Cheney’s interview, then senior White House officials will no longer provide criminal investigators a "full account of relevant events."

This argument, however, is ultimately immaterial because, while in some circumstances public pressure could possibly force a White House official to sit down for an interview, it cannot ensure that that official will be willing “to provide law enforcement officials with a full account of relevant events,”

Dudes! Let me tell you a secret about this case!! It ended in a successful perjury and obstruction of justice prosecution that revealed–among other things–that convicted felon Scooter Libby had worked out a cover story with Dick Cheney before Libby first testified to the FBI! Had Cheney given a "full account of relevant events," then Scooter Libby probably wouldn’t have been prosecuted successfully (or, at the least, Judy Miller wouldn’t have had to testify or Cheney would have been charged with obstruction himself).

Next, DOJ claims that a precedent in which the release of a summary of deliberations was found not to constitute a waiver over the source documents of that deliberation applies here, in which key source documents have already been released, but which wouldn’t–DOJ argues–constitute a waiver for the interview report which is fundamentally a summary. For DOJ, a precedent finding that a summary doesn’t equal source is the same as a source not equaling a summary. 

The D.C. Circuit held that the release of the report did not constitute a waiver of privilege and that the White House could retain privilege over all documents that had not specifically been provided to individuals outside the government. Id. at 741. Read more →

Could Cheney’s Lawyer’s Leak Break through the Cloud over Cheney?

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This may sound self-evident. But the fact that Dick Cheney’s lawyer, Terry O’Donnell, leaked material that Dick Cheney told Fitzgerald in his interview absolutely destroys the government’s argument for keeping those interview materials secret. That’s because the government is arguing that materials collected for law enforcement should never be used for political purposes.  But O’Donnell’s leak was just that, and as such constitutes not only an explicit waiver to release the materials, but devastating proof that DOJ’s hand-wringing about letting this information out to be misplaced.

DOJ Produced a Vaughn Index in Response to a Sullivan Order

The government produced last week’s filing–complete with descriptions of all the contents of Cheney’s interview, in response to an order from Judge Sullivan, who didn’t buy that Steven Bradbury was properly qualified to claim that releasing Cheney’s interview materials would "chill" future investigations without more explanation. (This is from the transcript from the June 18 hearing, with spelling corrected.)

THE COURT: Otherwise, it’s just an assumption [Bradbury] makes based upon nothing he can point to. He didn’t say that he had spoken with the Vice-President, the Vice-President told him in retrospect had I known that, I never would have done this absent a subpoena. So that’s the problem the Court finds itself in. There’s not a lot said in the declaration other than this will happen.

Of particular note, Sullivan noted that the government has not properly invoked executive privilege here.

THE COURT: But it’s clear from the record the President and no one in the executive branch has clearly asserted executive privilege here. There are the law enforcement exemption and there’s certain other deliberative process et cetera, et cetera, exemptions that the government avails itself of but it’s not an executive privilege.

So Sullivan gave the government a second shot to appropriately explain why this stuff should be exempt from FOIA.

But it’s not going to help the government much. Granted, the government did have someone more qualified to talk about how releasing this interview would "chill" future  investigations than Steven Bradbury–Criminal Division Head Lanny Breuer. But Breuer’s examples of how releasing Cheney’s interview materials would "chill" future investigations were totally inapposite to this case. Breuer argues that releasing a late-investigation interview of a key subject of that investigation will dissuade ancillary witnesses from cooperating early in an investigation. And his examples of previous high level investigations show that the norm for such investigations is public disclosure.

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