The Other Things the Government Is Hiding from Dzhokhar’s Lawyers

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As Josh Gerstein reported earlier today, Dzhokhar Tsarnaev repeatedly asked for a lawyer during his interrogation — and the government has not turned over details about the extent of his requests to his lawyers.

That’s interesting enough — does the government really expect it will be able to suppress these details?

But there are other details from Dzhokhar’s lawyers’ discovery request that I find equally of interest. The government also withheld:

  • The immigration files of requested individuals. The government has refused to share the files from anyone but Dzhokhar’s nuclear family (presumably meaning even the file of his spooked up uncle will be withheld, along with that of — say — Ibragim Todashev).
  • The interview reports from certain people in Russia.
  • Information about the surveillance and interviews of Tamerlan and the brothers’ mother prior to the Boston bombing.
  • Information on tips from the Russians.
  • Transcripts of Dzhokhar’s calls from the detention center. This would include a call to his mother the government cited in imposing SAPs on him.
  • “All documents and information concerning or comprising intercepted communications (e.g., U.S. mail, voice (telephone/skype/etc.) calls, text messages, e-mail messages, we search history/browser requests) of the defendant and his family members.” The filing doesn’t describe what, if any, response the government gave to this request.
  • Documents pertaining to the investigation of the 2011 Waltham murders, including any investigation of Tamerlan, Ibragim Todashev, or Dzhokhar. The government cited investigative privilege in withholding these documents.

Some of this may well come out later. But it seems the government is withholding anything that might touch Russian intelligence. Which is why I find this footnote so interesting.

With respect to the second summary disclosure, government counsel cryptically wrote: “We apologize for providing this information in a supplement but our own review of the information was unavoidably delayed.”

The Fifth and Sixth Amendment issues here might well endanger the government’s death penalty case, if not worse. But you get the feeling the government may be willing to risk their legal case (at least the death penalty) to protect these intelligence details.

Too bad for them so many of them have been leaked to the press or disclosed in the aftermath of killing Todashev.

Is Carmen Ortiz Subjecting Dzhokhar Tsarnaev to Solitary To Prevent Him from Learning about Developments in Florida?

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On August 27, Attorney General Eric Holder imposed Special Administrative Measures on Dzhokhar Tsarnaev at the request of US Attorney Carmen Ortiz. Yesterday, Dzhokhar’s lawyers challenged the SAMs.

Josh Gerstein provides a good overview of the SAMs, but they basically amount to inching Dzhokhar closer to full solitary confinement, as well as reviewing even legal materials his lawyers bring into the prison and prohibiting lawyers and other defense staff from passing on messages from third parties.

The big question is why they’re doing this. The government’s excuses — that Dzhokhar employed “tradecraft” by (in part) throwing away a detonator in the trashcan outside of Gerry’s Italian Kitchen, to which Dzhokhar and his brother had interesting ties; that Dzhokhar’s mother released a recording of a call they had back on May 24 “to generate sympathy;” and that Dzhokhar has received 1,000 pieces of mail — are all absurd. I find it non credible that DOJ considers it “tradecraft” to throw criminal evidence away in a place that should offer up more clues. The call with Dzhokhar’s mother was 3 months before the imposition of the SAMs — and she has obeyed instructions not to repeat it. And, as Dzhokhar’s defense points out, he has not responded to any of that mail, and while some of it consists of people telling him they believe him to be innocent, none of it is “jihadist,” and some even consists of people imploring him to convert to Christianity.

The stated explanations are all ridiculous.

So why did Carmen Ortiz (and not, Dzhokhar’s lawyers point out, prison officials) impose these SAMs over 4 months after Dzhokhar got arrested?

It may be the government just wants to subject Dzhokhar to solitary to make him less defiant in case of any public appearances — to “break” him, just as the US government has used other torture methods for. (Still, if that was the purpose, why not impose them back in April and May, before his arraignment?)

But I’m particularly interested in the way this happened as things have heated up in Florida in the aftermath of FBI’s killing of Ibragim Todashev.

I’ve put the relevant dates below. And while they don’t match exactly, during the same time as Dzhokhar has been subjected to these new measures, the FBI, local authorities, and other federal agencies have been trying to investigate Florida’s Russian immigrant community that had ties to Todashev. While I have no idea why the government would want to prevent Dzhokhar from learning of any of that (nor am I aware of any evidence he knew Todashev or any of the others, though he may have known Todashev from when he lived in MA), I do find the parallel developments to be of interest.

Some of the emphasis, thus far, in how the SAMs have been applied is also of interest. The government won’t let the Defense show Dzhokhar pictures of his family (remember, he has a spooked up uncle). The government will decide what kinds of extremist literature it deems discovery relevant to Dzhokhar’s defense and therefore admissible as legal material.

The latter detail, especially, suggests another possible explanation (and it is just a theory, not one I’m ready to fully support): the government doesn’t want the Defense team to be able to substantiate any other motive for the Boston attack besides the Islamic extremism they’ve publicly claimed and highlight even in the SAM memo.

But I would love to know the real reason they are doing this.

Read more →

Massive Obama Administration Leaks on Covert CIA Program Training Syrian Rebels

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Last night, Remi Brulin pointed out on Twitter that Greg Miller’s article in the Washington Post contains a lot of leaks describing a program that is supposed to be covert:

 

Miller even notes the covert nature of the program:

The descriptions of the CIA training program provide the most detailed account to date of the limited dimensions and daunting objectives of a CIA operation that President Obama secretly authorized in a covert action finding he signed this year.

And yet, despite the fact that even the authorization of this operation was supposed to be covert, Miller seems to have no trouble getting folks to talk to him about it. I’ve attempted to list here all the times he mentions things someone told him. I’ve only copied the references here when they relate to the covert training program, not to other information being conveyed to Miller:

U.S. officials said

officials said

officials said

officials said

The officials, who spoke on the condition of anonymity to discuss intelligence matters, said

The CIA effort was described

said a U.S. official familiar with operations in Syria

The descriptions of the CIA training program

U.S. officials said the classified program

a former senior U.S. intelligence official said

Officials said

the former U.S. intelligence official said

Officials said

officials said

officials said

officials said

what some officials have described

senior CIA officials have raised the concern

said a former senior U.S. intelligence official

the former official said

All of those are the anonymous quotes that Miller included. When it came time to get anyone to go on the record: Read more →

SOFA Unlikely Due to Karzai’s Objection to Death Squads

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The US has set the end of this month as its artificial deadline for signing a Status of Forces Agreement (SOFA, also Bilateral Security Agreement, or BSA) with Afghanistan to govern the presence of US troops inside Afghanistan after the scheduled end of NATO operations at the end of 2014. The driving force behind this push to have the SOFA in place so far ahead of the end of next year was to prevent a repeat of the embarrassment that the US suffered when it was unable to get the terms it wanted–specifically, full criminal immunity for US troops–in Iraq and wound up withdrawing all troops instead of leaving a force behind after the stated end of military operations.

The news today out of Afghanistan does not bode well for the US to meet its deadline. Although the issue of criminal immunity still seems likely to me to be just as big a barrier in Afghanistan as it was in Iraq, Afghan President Hamid Karzai has raised a different concern that the US seems quite unlikely to address in the way he wants. From Reuters:

But two issues have emerged as potential “deal breakers”, President Hamid Karzai’s spokesman, Aimal Faizi, told reporters late on Tuesday.

One is a U.S. desire to run independent counter-terrorism missions in Afghanistan after 2014, Faizi said. The other was a U.S. refusal to agree to a wide-reaching promise to protect Afghanistan from foreign aggression.

Karzai has long opposed operations in Afghanistan by U.S. special operations forces and the CIA, particularly when they run the risk of causing civilian casualties.

“These things are strongly related to our sovereignty,” Faizi said. “We find it to be something that will definitely undermine our sovereignty, if we allow the U.S. forces to have the right to conduct unilateral military operations.”

Recall that back in February of this year, Karzai grew frustrated with the death squad activities in Wardak province and called for the expulsion of US special forces there. As usual, the reference to “special operations forces and the CIA” means the death squads that the US organizes in Afghanistan (sometimes under the guise of Afghan Local Police) that carry out brutal night raids described as “counter-terrorism” operations.

Faizi is quoted on this issue further in an AFP piece picked up by Dawn:

“The US wants the freedom to conduct military operations, night raids and house searches,” Faizi told reporters late Tuesday.

“According to them, there are 75 Al Qaeda operatives in Afghanistan, which is very strange as this agreement will be for 10 years to have the right to conduct military operations anywhere in the country.

“Unilaterally having the right to conduct military operations is in no way acceptable for Afghans.”

It appears that negotiations on this issue are now being carried out in direct phone conversations between Karzai and Obama. It’s hard to imagine that either will give up any portion of their position, so look for an announcement near the end of this month that the “deadline” has been extended. There already is discussion that the new Afghan president taking office after the April elections will be tasked with finalizing the agreement since Karzai and Obama seem unable to come to agreement.

The second sticking point is also fairly interesting. It appears that in this case, the US is actually showing restraint of a sort, since they don’t want to give Afghanistan wide latitude in determining what constitutes an attack on Afghanistan that would trigger the US responding in defense of Afghanistan. From the Dawn article:

Faizi also said the two sides could not agree on how the bilateral security agreement (BSA) should define an attack on Afghanistan that would trigger US protection.

“We believe that when terrorists are sent to commit suicide attacks here, that is also aggression,” Faizi said.

“We are a strategic partner of the US and we must be protected against foreign aggression. For us and for the US, that’s the conflicting point. We are not of the same opinion and we need clarity from the US side,” he said.

Cross-border skirmishes between various factions in Afghanistan in Pakistan are an ongoing process. In fact, there was a suicide bombing today at the Chaman border crossing that killed at least eight people. Today’s attacker appeared to have come from the Afghan side of the border, but it appears that the US wishes to avoid being forced to carry out attacks inside Pakistan under the guise of the SOFA when a suicide attack originates from inside Pakistan.

Of course, even a government shutdown hasn’t stopped the US carrying out drone strikes inside Pakistan, but that is a different issue entirely and seems to relate more to who has pissed off John Brennan lately rather than who organized a suicide attack.

Syrian Moderate Coalition Fractures — Is al Nusra the Next MEK?

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The US grand strategy of arming moderate groups within Syria’s opposition in the ongoing civil war (remember, we only arm folks so moderate that they eat enemies’ hearts) took a huge blow yesterday, as several groups previously aligned with the moderates threw their support into a group including the Islamist group Jabhat al Nusra, which has affiliations with al Qaeda. With the moderate coalition in disarray, it occurred to me to wonder whether al Nusra will now undergo a reputation-scrubbing and a lobbying campaign similar to that applied to MEK, which has been removed from the official list of terrorist organizations and continues to support US politicians who are willing to sell their services to any group with enough funding. There is hope for the future, though, as a UN treaty that would take significant steps toward stemming the flow of conventional weapons is gathering steam and has now been signed by more than half of the members of the UN.

The Washington Post brings us the news of the fractured moderate coalition:

American hopes of winning more influence over Syria’s fractious rebel movement faded Wednesday after 11 of the biggest armed factions repudiated the Western-backed opposition coalition and announced the formation of a new alliance dedicated to creating an Islamic state.

The al-Qaeda-affiliated Jabhat al-Nusra, designated a terrorist organization by the United States, is the lead signatory of the new group, which will further complicate fledgling U.S. efforts to provide lethal aid to “moderate” rebels fighting to topple Syrian President Bashar al-Assad.

The defecting groups are blaming the US for failing to come through with promised arms and for not bombing Assad after the August 21 chemical weapons attack:

Abu Hassan, a spokesman for the Tawheed Brigade in Aleppo, echoed those sentiments, citing rebel disappointment with the Obama administration’s failure to go ahead with threatened airstrikes to punish Assad for using chemical weapons in the suburbs of Damascus last month, as well as its decision to strike a deal with Russia over ways to negotiate a solution.

“Jabhat al-Nusra is a Syrian military formation that fought the regime and played an active role in liberating many locations,” he said. “So we don’t care about the stand of those who don’t care about our interests.”

Toward the end of the New York Times story on this development, we see the al Nusra group being described as less radical than the new kid on the block, the Islamic State in Iraq and Syria (ISIS): Read more →

Further Implications of UndieBomb II Leaker Guilty Plea

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As you have likely heard by now, a former FBI agent has agreed to plead guilty to leaking material about the second underwear bomb attempt to reporters in May of 2012. Charlie Savage of the New York Times has the primary rundown:

A former Federal Bureau of Investigation agent has agreed to plead guilty to leaking classified information to The Associated Press about a foiled bomb plot in Yemen last year, the Justice Department announced on Monday. Federal investigators said they identified him after obtaining phone logs of Associated Press reporters.

The retired agent, a former bomb technician named Donald Sachtleben, has agreed to serve 43 months in prison, the Justice Department said. The case brings to eight the number of leak-related prosecutions brought under President Obama’s administration; under all previous presidents, there were three such cases.

“This prosecution demonstrates our deep resolve to hold accountable anyone who would violate their solemn duty to protect our nation’s secrets and to prevent future, potentially devastating leaks by those who would wantonly ignore their obligations to safeguard classified information,” said Ronald C. Machen Jr., the United States attorney for the District of Columbia, who was assigned to lead the investigation by Attorney General Eric H. Holder Jr.

In a twist, Mr. Sachtleben, 55, of Carmel, Ind., was already the subject of a separate F.B.I. investigation for distributing child pornography, and has separately agreed to plead guilty in that matter and serve 97 months. His total sentence for both sets of offenses, should the plea deal be accepted by a judge, is 140 months.

Here is the DOJ Press Release on the case.

Here is the information filed in SDIN (Southern District of Indiana). And here is the factual basis for the guilty plea on the child porn charges Sachtleben is also pleading guilty to.

So Sachtleben is the leaker, he’s going to plead guilty and this all has a nice beautiful bow on it! Yay! Except that there are several troubling issues presented by all this tidy wonderful case wrap up.

First off, the information on the leak charges refers only to “Reporter A”, “Reporter A’s news organization” and “another reporter from Reporter A’s news organization”. Now while the DOJ may be coy about the identities, it has long been clear that the “news organization” is the AP and “Reporter A” and “another reporter” are AP national security reporters Matt Apuzzo and Adam Goldman (I’d hazard a guess probably in that order) and the subject article for the leak is this AP report from May 7, 2012.

What is notable about who the reporters are, and which story is involved, is that this is the exact matter that was the subject of the infamous AP phone records subpoenas that were incredibly broad – over 20 business and personal phone lines. These subpoenas, along with those in the US v. Steven Kim case collected against James Rosen and Fox News, caused a major uproar about the sanctity of First Amendment press and government intrusion thereon.

The issue here is that Attorney General Eric Holder and the DOJ, as a result of the uproar over the Read more →

Say Hello To Our New Friends At Just Security

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Screen shot 2013-09-23 at 11.46.58 AMWe do a lot of things here at Emptywheel including occasionally, goofing off. But our primary focus has always been the intersection of security issues, law and politics. I think I can speak for Marcy and Jim, and I certainly do for myself, we would love it if that intersection were not so critical in today’s world. But, alas, it is absolutely critical and, for all the voices out there in the community, there are precious few that deep dive into the critical minutiae.

Today we welcome a new and important player in the field, the Just Security Blog. It has a truly all star and broad lineup of contributors (most all of whom are listed as “editors” of one fashion or another), including good friends such as Steve Vladeck, Daphne Eviatar, Hina Shamsi, Julian Sanchez, Sarah Knuckey and many other quality voices. It is an ambitious project, but one that, if the content already posted on their first day is any indication, will be quite well done. The home of Just Security is the New York University School of Law, so they will have ample resources and foundation from which to operate for the long run.

Ironically, it was little more than three years ago (September 1, 2010 actually) that the Lawfare Blog went live to much anticipation (well, at least from me). Whether you always agree with Ben Wittes, Bobby Chesney, Jack Goldsmith and their contributors or not, and I don’t always, they have done this field of interest a true service with their work product, and are a fantastic and constantly evolving resource. There is little question but that Just Security intends to occupy much of the same space, albeit it in a complimentary as opposed to confrontational manner. In fact, it was Ben Wittes who hosted the podcast with Steve Vladeck and Ryan Goodman that serves as the multi-media christening of Just Security.

Orin Kerr (who is also a must read at Volokh conspiracy), somewhat tongue in cheek, tweeted that the cage match war was on between Lawfare and Just Security. That was pretty funny actually, but Orin made a more serious point in his welcome post today, and a point that I think will greatly interest the readers of Emptywheel:

Whereas Lawfare tend to have a center or center-right ideological orientation, for the most part, Just Security‘s editorial board suggests that it will have a progressive/liberal/civil libertarian voice.

From my understanding, and my knowledge of the people involved, I believe that to be very much the case. And that is a very good thing for us here, and the greater discussion on so much of our work.

So, say hello to our new friends at Just Security, bookmark them and give them a read. Follow them on Twitter. You will be better informed for having done so.

Afghanistan: New Green on Blue, Green on Green and a Politicized Memorial Service

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With so much attention focused on Syria, it is important that we don’t lose sight of just how badly the situation in Afghanistan is limping toward a final resolution. There is a report ToloNews website this morning on a memorial service that was held yesterday in Kabul. It’s not clear why the service was held yesterday (the anniversary of the US invasion isn’t until early October), but the service was described as honoring both foreign and Afghan soldiers who have fallen in the war. While the words attributed to Dunford were simple enough in deploring terrorism, the quotes attributed to Afghan figures were appalling in their attempts to use a solemn occasion to shill for what their US military handlers want in the coming months:

Highlighting on the importance of support from the international community post-2014, the Ministry of Defense (MoD) requested the international community to continue assisting the Afghan forces by providing equipment and proper training post-2014.

The battle of Afghanistan against terrorism has seen some big sacrifices in terms of military and civilian casualties. Over the past 12 years, since the beginning of the Afghan war, over 3,000 foreign soldiers and over 10,000 Afghan soldiers have lost their lives.

The foreign forces’ combat mission is scheduled to end in the next few months, but a greater question looms large with regard to how effective has the fight against terrorism been over the past 12 years?

In light of this, Bismillah Mohammadi, the Minister of Defence expressed concerns over the training and equipping of the Afghan Security Forces post-2014. Mr. Mohammadi urged the international community to continue assisting the Afghan forces beyond 2014.

“We urge the international community to equip and train the Afghan Security Forces post- 2014,” said Mr. Mohammadi.

And how well is all that “training” going? Pretty much as we saw before. Despite massive efforts by the US to re-screen Afghan personnel in the military and to decrease the number of interaction points between Afghan recruits and their trainers, there was another green on blue killing on Saturday. From ToloNews:

“Three International Security Assistance Force (ISAF) service members died when an individual wearing an Afghan National Security Forces uniform shot them in eastern Afghanistan today,” a statement from the coalition said.

A US defence official confirmed to AFP that the three victims were from the United States.

An Afghan official, speaking on condition of anonymity, told AFP that the attack happened during a training session in the insurgency-hit province of Paktia.

The Afghan soldier opened fire on US soldiers, killing two on the spot, he said. A third later died of his wounds.

The attacker was killed when Americans and Afghan soldiers returned fire.

The article, which originally comes from AFP, lists the various programs the US has put into place in response to green on blue killings. By listing these programs in such proximity, we can see how they are self-contradictory:

There have been seven “insider attacks” this year against coalition forces, compared with 48 in 2012. ISAF officials say the decline has been due to better vetting, counter-intelligence and cultural awareness.

Foreign soldiers working with Afghan forces are regularly watched over by so-called “guardian angel” troops to provide protection from their supposed allies.

The military really wants us to believe that they have finally learned cultural awareness and that they have put into place appropriate screening and counterintelligence processes that will eliminate threats. And those programs are working so well that the military now assigns soldiers to act as armed guards during training sessions.

Hidden in a Khaama Press article today about a Taliban attack that killed eleven Afghan border police, we learn that there was an insider killing in an Afghan Local Police unit: Read more →

The Girlfriend Detention Method of Coercion

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Remember Ibragim Todashev, the friend of Tamerlan Tsarnaev the FBI shot with pathetically inconsistent explanation?

A woman claiming to be his live-in girlfriend, Tatiana Gruzdeva, of the time has spoken to the press for the first time. There’s a lot that’s interesting in the account, including that she appears to have come forward to draw attention to the arrest of a Tajik friend, Ashurmamad Miraliev, on Wednesday.

But I wanted to point to what appears to be her several month detention that appears to have been at least, in part, an attempt to coerce Todashev.

One day, the FBI called Todashev back to their office again. Gruzdeva went with him and waited in the lobby, she said. That’s when an agent she recognized approached her and asked to talk.

“And I already saw him a couple times so it was normal, so I told him, ‘I’m waiting for Ibragim,’” she told me. “And he said, ‘So what? It’s just going to be a couple minutes. He knows about it.’” So she went with him to an office. Another agent joined them, she said. Then, she says, they questioned her for three hours.

“They asked me again and again about Ibragim and all this stuff. They asked me, ‘Can you tell us when he will do something?’ I said, ‘No! I can’t!’ Because he wasn’t doing anything, and I didn’t know anything. And they said, ‘Oh, really? So why don’t we call immigration.’”

Gruzdev told me that she is from Tiraspol, a town in the former Soviet country of Moldova. She had come to America in 2012 on a student work visa, which had since expired. “I said, ‘Come on guys, you cannot do this! You know my visa was expired and you didn’t do anything. And now because you need me and I say I don’t want to help you, you just call to immigration?’ And they said, ‘Yeah, that’s right.’ And they called immigration and immigration came and they put me in the jail.”

When Todashev discovered FBI had detained her, according to Gruzdeva, they mocked him.

For the first week, Gruzdeva told me, she was kept in an immigration detention facility. She was allowed to talk to Todashev every day on the phone. She said he told her that when he had come to find her in the lobby the day she was detained, FBI agents mocked him, saying “Where’s your girlfriend?”

She said the mocking infuriated Todashev. “He said, ‘I want to hit them because I was so mad, why they lie to me? They stole you.’”

The morning after FBI killed Todashev, they moved Gruzdeva from ICE to County detention, but waited a day to tell her of his death.

On May 22, Gruzdeva said, she was transferred from immigration jail to a cell in Glades County Jail in Moore Haven, Florida. There, she said, she was placed in solitary confinement.

“I thought I would be released, because I don’t have any crime, I don’t have any charges, I was clear,” she said. She asked why she had been moved. “And they just said, “Oh we cannot tell you, we’ll tell you tomorrow in the morning.”

Read more →

Further Questions Arise on Ghouta Attack

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There has been quite a rush to assign blame to the Syrian government for the August 21 chemical weapons attack in the Ghouta area of greater Damascus. Perhaps more than any other piece of evidence, the fact that the two rocket trajectories the UN report described cross inside a Syrian military base has prompted people to jump to that conclusion. However, as I have pointed out, the UN report itself does not state directly that the two rockets for which trajectories were described actually tested positive for sarin. That is a very important point, since we know that conventional shelling of the attack site, from the base identified by the rocket flight paths, continued in the days between the chemical weapon attack and the arrival of the UN inspection team.

I had seen suggestions that some of the video evidence on which the US based its huge estimate of the death toll from the attack may have been staged. Below is a video compiled by Global Research that summarizes much of the case calling those videos into question. The video raises several important points. First, we learn here that at least one of the regions of the attack had actually been abandoned by citizens prior to August 21 because the area had been rendered unlivable by repeated shelling. The video also suggests that a large number of kidnapped Alawite women and children may have been transported to the attack site to serve as the victims of the attack. A number of faces of male victims of this kidnapping appear to be matched from pre-August 21 videos to those same faces showing up among the dead after the attack.

I don’t profess to know the truth of who carried out this brutal attack with sarin, but the questions raised in this video are just as worthy of pursuing fully as those raised by the folks who already assume Assad gave the order for this attack.

[youtuber youtube=’http://www.youtube.com/watch?v=EzLVfdrQRsY’]