Immunizing Crimes: Blankfein, Zirbel, and Arpaio, but Whither Corzine?

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DOJ has been doing a lot of immunizing of late. There’s Lloyd Blankfein, who not only ripped off his clients with “one shitty deal,” he then lied to Congress about it. There’s Matt Zirbel,* the CIA officer who had Gul Rahman doused with water and left to freeze to death in the Salt Pit. And there’s Joe Arpaio, who used the Maricopa County Sherriff’s office to investigate his political enemies.

DOJ immunized all these men in the last month, in spite of a vast amount of publicly available evidence clearly showing their crimes. And while DOJ had the courage to announce their decision about Blankfein and Goldman Sachs on a typical news day, not so their announcements about Zirbel and Arpaio–DOJ slipped those announcements into the journalistic distraction of Paul Ryan’s dishonest speech and Clint Eastwood’s empty chair, and the more generalized distraction of an imminent holiday weekend.

But with these grants of immunity, DOJ cleared the board of most of the politically contentious cases of immunized criminals just in time for election season. The Goldman banksters could donate with no worries, the NatSec types wouldn’t pull an October surprise, and Republicans couldn’t claim Arpaio was caught in a witch hunt because of the witch hunts he himself conducted.

DOJ cleared most, though not all, of the politically contentious cases they plan to clear though. The exception may prove the rule.

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After Making Bank Fraud Legal, Eric Holder’s DOJ Makes Torture Legal

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DOJ has announced that the two ongoing investigations it had into torture have been closed for lack of admissible evidence.

The Attorney General announced today the closure of the criminal investigations into the death of two individuals while in United States custody at overseas locations.

Eric Holder tried to put a good spin on this event.

AUSA John Durham has now completed his investigations, and the Department has decided not to initiate criminal charges in these matters. In reaching this determination, Mr. Durham considered all potentially applicable substantive criminal statutes as well as the statutes of limitations and jurisdictional provisions that govern prosecutions under those statutes. Mr. Durham and his team reviewed a tremendous volume of information pertaining to the detainees. That review included both information and matters that were not examined during the Department’s prior reviews. Based on the fully developed factual record concerning the two deaths, the Department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.

[snip]

Mr. Durham and his team of agents and prosecutors have worked tirelessly to conduct extraordinarily thorough and complete preliminary reviews and investigations. I am grateful to his team and to him for their commitment to ensuring that the preliminary review and the subsequent investigations fully examined a broad universe of allegations from multiple sources. I continue to believe that our Nation will be better for it.

I also appreciate and respect the work of and sacrifices made by the men and women in our intelligence community on behalf of this country. They perform an incredibly important service to our nation, and they often do so under difficult and dangerous circumstances. They deserve our respect and gratitude for the work they do. I asked Mr. Durham to conduct this review based on existing information as well as new information and matters presented to me that I believed warranted a thorough examination of the detainee treatment issue.

I am confident that Mr. Durham’s thorough reviews and determination that the filing of criminal charges would not be appropriate have satisfied that need. Our inquiry was limited to a determination of whether prosecutable offenses were committed and was not intended to, and does not resolve, broader questions regarding the propriety of the examined conduct. [my emphasis]

But when it comes down to it, it means our government either refuses or is completely incapable of holding the powerful to account.

John Kiriakou is being prosecuted for speaking about waterboarding. But the guys who water doused someone to death? They enjoy the same impunity as the banksters.

Dick Durbin: The Targeted Killing Memo Is Like the Torture and Illegal Wiretap Memos

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It took transcribing the debate in the July 19 Senate Judiciary Committee hearing for me to realize it, but Democrats are running very serious interference to keep the Anwar al-Awlaki targeted killing memo secret. Not only did Dianne Feinstein basically roll John Cornyn, telling him she’d introduce language that would accomplish his goal of getting all the oversight committees the memo when, if hers passes, it will only, maybe, get the Intelligence Committee the memo.  Not only did the Democrats vote on a party line vote to table John Cornyn’s amendment to require the Administration to share it–in classified or unclassified form–with the Judiciary and Armed Services Committees. Not only did Pat Leahy get pretty snippy with Cornyn for offering–and asking to speak on–the Amendment.

Most stunning, though, is Dick Durbin’s comment on it.

Durbin: Thank you Mr. Chairman. My staff briefed me of this on the way in, and I asked the basic question, “would I ask this of a Republican President? Of course. And I did ask it, in a different context, of the previous President, when it came to questions of interrogation, torture, and surveillance. I might say to the Senator from Texas I had no support from the other side of the table when I made that request. But I do believe it is a valid inquiry and I would join the Senator from Texas and any who wish in sending a letter to the Attorney General asking for this specific information on a bipartisan basis. And certainly we can raise it the next time the Attorney General appears before us. I do have to say that I’m going to vote to table because I think that as flawed as this [the FAA extension] may be without the Lee Amendment which I think would help it, I do believe we need to pass this and  bringing in these other matters are going to jeopardize it. But I think it is a legitimate question to be asked of Presidents of either party, and I will join you in a letter to this President and his Attorney General for that purpose. [my emphasis]

This partisan retort (one Leahy repeated) says, in part, that the Democrats aren’t going to cooperate with Cornyn’s effort to get the memo because Cornyn didn’t cooperate with Durbin’s efforts to get the torture and illegal wiretap memos. Durbin and Leahy are right: Cornyn and the rest of the Republican party did obstruct their efforts.

That doesn’t make obstructing Cornyn’s effort right, of course, particularly given that Durbin purports to support Cornyn’s intent.

But remember, Republicans obstructed the release of the torture and illegal wiretap memos because, well, they showed the Executive had broken the law. When we all got to see the torture memos, they made it clear CIA had lied to DOJ to get authorization for torture, had exceeded the authorizations given to them, had engaged in previously unimagined amounts of torture, and had ignored legal precedent to justify it all.

And while we’ve only ever seen part of Jack Goldsmith’s illegal wiretap memo (after the Bush Administration purportedly fixed the data mining and other illegal problems with it) and a teeny fragment of an earlier John Yoo memo, those showed that Yoo relied on gutting the Fourth Amendment, there is an additional secret memo on information sharing, they were hiding their flouting of the exclusivity provision, and–possibly–the illegal wiretap program violated an earlier decision from the FISA Court of Review. We also learned, through some Sheldon Whitehouse persistence, that these memos revealed the President had been pixie dusting Executive Orders and claiming the right to interpret the law for the Executive Branch.

The Republicans had good reason to want to help Bush bury these memos, because they showed breathtaking efforts on the part of the Bush Administration to evade the law.

And that’s the fight that Dick Durbin analogized this one to.

Using Pensions to “Punish” “Leaks” Will Subject Clearance Holders to Arbitrary Power

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The Senate Intelligence Committee’s new anti-leak laws are the part of the Intelligence Authorization that will generate the most attention. Greg Miller already got Dianne Feinstein to admit there’s no reason to think one of the new provisions–permitting only the most senior intelligence officials to do background briefings–will limit leaks.

Feinstein acknowledged that she knew of no evidence tying those leaks or others to background sessions, which generally deal broadly with analysts’ interpretations of developments overseas and avoid discussions of the operations of the CIA or other spy services.

Another of the provisions–requiring intelligence committee heads to ensure that every sanctioned leak be recorded–ought to be named the Judy Miller and Bob Woodward Insta-Leak Recording Act.

(a) RECORD REQUIREMENT.—The head of each element of the intelligence community shall ensure that such element creates and maintains a record of all authorized disclosures of classified information to media personnel, including any person or entity under contract or other binding agreement with the media to provide analysis or commentary, or to any person or entity if the disclosure is made with the intent or knowledge that such information will be made publicly available.

I’m sure someone can think of some downside to this provision, but I can’t think of it at the moment (which is why Obama will probably find some way to eliminate it). It will end some of the asymmetry and abuse of classification as it currently exists.

In addition, there are a bunch of provisions that are just dumb bureaucracy.

But it’s this one that is deeply troubling. Among the other provisions making nondisclosure agreements more rigorous is a provision that would allow an intelligence community head to take away a person’s pension if they “determine” that an individual violated her nondisclosure agreement.

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Judge Kollar-Kotelly Sees No Evil, Hears No Evil

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Yesterday, Colleen Kollar-Kotelly upheld the government’s right to withhold cables already released via WikiLeaks under FOIA (see my earlier posts on this FOIA here and here). Her logic seems to have a fatal flaw: she says the State Department has proven (and the ACLU has not rebutted the claim) that the US Government owns the cables.

The ACLU simply offers no rejoinder to the State Department’s affirmative showing that all the information at issue (1) was classified by an original classification authority, (2) is owned, produced, or controlled by the United States, and (3) falls within one or more of the eight relevant categories. [my emphasis]

But then she says (noting that ACLU made no mention that these cables had also been released via WikiLeaks and therefore pretending that they might be different) that the government has not officially acknowledged these cables are authentic.

No matter how extensive, the WikiLeaks disclosure is no substitute for an official acknowledgement and the ACLU has not shown that the Executive has officially acknowledged that the specific information at issue was a part of the WikiLeaks disclosure.

I guess they should let Bradley Manning go free, then, since the State Department isn’t prepared to say the cables he is accused of leaking were authentic?

But that’s not the most troubling part of this ruling. As I lay out below–and as Kollar-Kotelly presumably knows well–the cables are full of admissions of crime, including murder, torture, and kidnapping. Thus, had she reviewed them to see whether the government’s claims that they were properly classified are valid, she would have seen that–in addition to information properly classified to protect foreign relations–a lot of the original classification and the government’s refusal to officially release them (which would presumably make them admissible in a court) serve to hide confessions of criminal activity.

So Kollar-Kotelly chose not to review these cables in camera, choosing instead to rely on the State Department declaration that makes no mention of the criminal admissions included in the cables.

In this case, because the State Department’s declarations are sufficiently detailed and the Court is satisfied that no factual dispute remains, the Court declines to exercise its discretion to review the embassy cables in camera.

It was a cowardly ruling. But all the more cowardly, given that Kollar-Kotelly prevented herself from officially reviewing a bunch of evidence of criminal wrong-doing.

Here are details on the cables Kollar-Kotelly doesn’t want to read:

The famous meeting at which Ali Abdullah Saleh promised to lie about our strikes in Yemen

Kollar-Kotelly agreed to keep what has become perhaps the most famous cable ever, in which David Petraeus and Ali Abdullah Saleh discuss the missile strikes we conducted in Yemen in late 2009.

Mind you, the government likely has a very good legal reason to keep this cable secret. The cable makes it clear we were targeting Anwar al-Awlaki (as well as Nasir al-Wuhayshi) in those strikes. And releasing that would constitute official acknowledgement of the targeting of Awlaki that the government has tried so hard to avoid. Furthermore, as I’ll show in a follow-up post, it also shows that we targeted Awlaki for death before we had evidence implicating him in a crime.

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More Dirty Secrets Go to the Grave

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I gotta believe Moussa Koussa is feeling a bit worried these days, as one after another of those harboring the secrets about the torture the US has been complicit with die. Today, Omar Suleiman brought details of how Egyptians tortured Omar Khadr and Ibn Sheikh al-Libi (the latter of whom invented details that Dick Cheney used to drum up war against Iraq), among others, on our behalf to the grave with him.

Egypt’s former spy chief Omar Suleiman died early on Thursday aged 76 whilst undergoing medical tests in the United States.

“He was fine, it happened all of a sudden,” Hussein Kamal, the head of Suleiman’s presidential campaign team and head of his personal office, told Reuters. “He was undergoing medical examinations,” he added, without revealing the cause of death.

Meanwhile, Sky News Arabia quoted an anonymous source stating that Suleiman had been suffering from a blood disease, which led to his death in a Cleveland hospital at dawn Thursday.

Egypt’s state-run news agency MENA claimed Suleiman had developed a lung disease months ago, which later caused heart problems. His health notably deteriorated over the past three weeks, it added.

I expect we’ll see a range of conspiracy theories about Suleiman’s quick death, and on US soil. But then, I guess that’s deserved, given how sordid our relationship with Suleiman has always been.

America’s torturers are outliving the evidence against them. Congratulations are in order, for example, to Dick Cheney; his new heart has given him the ability to outlive one of the witnesses to his crimes. And Cofer Black, who crafted the plan to subsidize the Egyptian torture chambers after 9/11 and now stands poised to reenter government if Mitt Romney wins the Presidency? Congratulations, your soiled slate just got one bit cleaner.

We Can’t Afford Another “Complicated and Quirky” Presidency

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You’ve no doubt heard about the BoGlo piece that describes 9 different legal documents on which Mitt Romney was listed as CEO of Bain after the time–in 1999–when he now claims to have left the company.

Romney has said he left Bain in 1999 to lead the winter Olympics in Salt Lake City, ending his role in the company. But public Securities and Exchange Commission documents filed later by Bain Capital state he remained the firm’s “sole stockholder, chairman of the board, chief executive officer, and president.”

[snip]

Romney did not finalize a severance agreement with Bain until 2002, a 10-year deal with undisclosed terms that was retroactive to 1999. It expired in 2009.

[snip]

The Globe found nine SEC filings submitted by four different business entities after February 1999 that describe Romney as Bain Capital’s boss; some show him with managerial control over five Bain Capital entities that were formed in January 2002, according to records in Delaware, where they were incorporated.

I’m envisioning Mitt Romney, in 2017, claiming the treaty he signed with China in 2014 doesn’t really count because he wasn’t really acting as President when he signed it, in spite of his legal status as President.

But I’m most interested in the scant response the Mitt campaign gave.

A Romney campaign official, who requested anonymity to discuss the SEC filings, acknowledged that they “do not square with common sense.” But SEC regulations are complicated and quirky, the official argued, and Romney’s signature on some documents after his exit does not indicate active involvement in the firm.

“Complicated and quirky” says a guy (or gal) now spending his time trying to get Mitt elected to an even more complicated and quirky office, the Presidency.

Frankly, though, there’s precedent for a President claiming “complicated and quirky” absolves him of responsibility for things that occurred under his presidency. After all, while Bush signed the paperwork in the first 6 years of his presidency, it wasn’t until he fired Rummy that Bush actually took over responsibility for the big decisions from Dick Cheney.

And I can’t help but harp on the “complicated and quirky” document–the “Gloves Come Off” Memorandum of Notification, effectively written by now Romney advisor Cofer Black–that has undermined the accountability Presidency more generally. Effectively, that MON pre-authorized the CIA (at least) to do whatever they wanted within certain general areas of organization. It served as Presidential authorization, but insulated the President from any provable involvement in torture and assassination and partnering with lethal regimes. When proof that the President had authorized all this torture threatened to come out via legal means, the current President went to the mat to prevent that from happening.

All the rest–the debates about what Congress authorized the day after this complicated and quirky document, the OLC memos, the repeated investigations that always end up in immunity for all (or almost all)–are just the legal facade that hides the fact that in fact even our Constitution has become “complicated and quirky.” And while Obama at least admits his involvement in these issues–while still hiding them from legal liability–he has chosen to keep the structure in place and has relied on the plausible deniability it gives.

The thing is, as damning as this revelation may prove to be for Mitt, it is in fact quite unsurprising that a man can run for President on a resumé for which–his advisors say, behind the veil of anonymity–he can simultaneously claim credit but no responsibility.

That’s the way this country increasingly works. Even–perhaps especially–the Presidency.

DIA Failed to Protect Jose Padilla’s Welfare

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On June 11, SCOTUS denied cert in Jose Padilla’s suit against Donald Rumsfeld, former DIA Director Lowell Jacoby, and others at DOD for his denial of habeas corpus and abusive detention. On June 28, DOD responded to a FOIA Jeff Kaye submitted on September 8, 2010.

There’s a lot in the IG Report Jeff received in response–on whether detainees at Gitmo or other non-SOCOM facilities were administered drugs as part of interrogation (the report concludes they were not)–of import that Jeff and Jason Leopold report on here.

In this post, though, I want to look at why DOD may have held off on responding to Jeff’s FOIA until after SCOTUS rejected Padilla’s suit.

As Jeff and Jason report, one of the more inflammatory things revealed in the unredacted parts of the report is that when “they” gave Padilla a flu shot on December 5, 2002 (the report doesn’t say who administered the shot), he asked (following up on earlier comments made by an interrogator) whether they had given him truth serum.

What happened next is redacted–one of just about 5 redacted paragraphs in the entire report. DOD cited exemptions 1 (properly classified), 3 (protected by statute, including any function of the DIA), 6 (personal privacy) and 7c (law enforcement personal privacy) in withholding this information.

The following paragraph reads,

(U/FOUO) We concluded from the interrogation recordings and interviews with the interrogator and brig personnel present on December 5, 2002, that [redacted–Padilla] was not administered a mind-altering drug during his confinement at the U.S. Naval Consolidated Brig, Charleston, South Carolina. We further concluded that the [3-letter redaction] failed to follow legal review procedures established by U.S. Joint Forces Command to ensure that [redacted–Jose Padilla’s] welfare was protected in accordance with guidance issued by the President. [my emphasis]

Then, the subsequent two paragraphs–which provide “Client Comment” and DOD IG’s response–are redacted.

We can be almost certain that DIA (headed at the time of Padilla’s detention by Jacoby) was the redacted rebuked entity because their response to this report is the only other section of the report that is substantially redacted and no other respondants to the report had any complaints about it, meaning the redacted response in the Padilla section must be a discussion of DIA’s response. The unredacted section of their response, however, makes it clear their own IG investigated the problem (albeit at the same time as DOD IG was doing so).

The DIA Inspector General (IG) investigated the information gap cited in Appendix II. The DIA IG report was provided on 12 August 2009. [my emphasis]

Still, we don’t know what DIA did that drew a rebuke from DOD’s Inspector General. It may be no more than misleading Padilla into believing he had gotten a truth serum, without prior approval for doing so by lawyers. (The paragraphs in question are only classified Secret, so they can’t be that significant.)

Or, it may be that the conclusion served to protect the President and Rummy.

Nevertheless, it is fairly clear that DOD’s IG found that DIA didn’t do what they needed to do to protect Padilla’s welfare. And it sure looks like DOD sat on that information until SCOTUS ensured that Padilla would never have legal recourse for the abuse done to him.

NYPD’s Counterterrorism Strengths: Bigfooting, Entrapping, and Overselling

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Justin Elliott takes the debunking I did here one step further: a claim by claim debunking of the NYPD’s claims to have thwarted 14 attacks against the city. He helpfully groups his debunkery into three groups:

Real attacks the NYPD had no role in or even undermined but for which they claim credit.

  • Faisal Shahzad
  • Najibullah Zazi
  • Liquids Plot

Those marginally credible plots involving government informants.

  • Newburgh Four
  • Herald Square
  • JFK Airport

Those plots deemed not credible by (usually anonymous) experts or never developed.

  • Jose Pimental
  • Ahmed Ferhani and Mohamed Mamdouh
  • Iyman Faris
  • PATH Train
  • Subway Cyanide
  • NYSE/Citi
  • Uzair Paracha
  • Bryant Neal Vinas/LIRR

That’s it. The “threats” the NYPD is using to justify profiling the city’s (and suburbs’) Muslims were either missed by the NYPD, created in large by them, or never really developed.

I’d add just two things. First, as I have noted, for two of three actual attacks here, the NYPD actually got close but missed (or even hindered) the developing plots. These near misses suggest the NYPD may well have picked a few worthwhile investigation targets, but its actions are failing to reveal any real, rather than manufactured, threat.

There’s one more thing Elliot’s piece made me realize. Several of these–including Uzair Paracha, Iyman Faris, and the NYSE/Citi plot–can be traced back to KSM. As Elliott notes–and I’ve noted before–some of his evidence against Paracha, at least, was collected during his worst period of torture. Not only does that suggest I should add “exploiting torture-induced testimony” to my title.

But it makes me wonder whether one of the problems with trying KSM in NY, for Ray Kelly, was the possibility that KSM would expose the fraud at the heart of Kelly’s counterterrorism scam.

Selective Prosecution from CIA’s US Attorney

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In its response to John Kiriakou’s claim he is being selectively prosecuted, the government cites this passage from US v. Armstrong.

A selective prosecution claim asks a court to exercise judicial power over a special province of the Executive. The Attorney General and United States Attorneys retain broad discretion to enforce the Nation’s criminal laws . . . . As a result, [t]he presumption of regularity supports their prosecutorial decisions and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties. In the ordinary case, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. [my emphasis]

It then describes the standard for presumption of regularity by citing David Passaro’s unsuccessful appeal.

Kiriakou seeks to overturn the presumption of regularity by asserting that the decision to charge him must have arisen from some illegitimate prosecutorial motive, rather than the investigation having followed the facts where they led. However, the defendant fails to offer clear evidence to support his claim, and falls far short of satisfying the high burden required to overcome the presumption of regularity. See United States v. Passero, 577 F.3d 207, 219 (4th Cir. 2009) (“[u]nless a defendant provides ‘clear evidence’ to overcome the presumption that a government prosecutor has acted lawfully and without discrimination-a ‘particularly demanding’ standard-he cannot demonstrate a constitutional violation for selective prosecution.” (citation omitted)). [original spelling error for “Passaro” highlighted]

The entire filing is signed this way:

Compare that signature with this one, from before Kiriakou was indicted.

Or this signature, from the indictment itself.

Monday’s response to Kiriakou’s selective prosecution motion is the first submitted after Patrick Fitzgerald’s last day on Friday. If I’m not mistaken, it is the first filing submitted after the guy selected for his independence from the CIA’s witch hunt on torture departed government. It is, AFAIK, the first public hint at what the new investigative reporting structure and team looks like (which appears to have completely changed, even beyond Fitzgerald’s departure).

And the filing shows that, rather have the prosecution led by a US Attorney assigned as a Special Attorney reporting directly to the Attorney General, the prosecution now includes Neil MacBride, US Attorney for Eastern District of VA. And while the designation of AUSAs Schneider, Lan, and Fayhee as Special Attorneys suggests some kind of special reporting structure (Lan, at least, is in SDNY, not EDVA), the filing shows that the CIA’s US Attorney, the US Attorney’s office for EDVA, now has a role in the prosecution.

Which brings me to the problem with the government’s citations on selective prosecution.

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