Embarrassment-Free Show Trials

The Miami Herald (which is doing good work on the Gitmo show trials) has a description of some of the ways the military is ensuring that the Gitmo show trials don’t lead to the release of any embarrassing information.

A defense lawyer lets slip at the war court convening here that a battlefield commander changed an Afghanistan firefight report in a way that seemed to help a U.S. government murder case. Reporters hear the field commander’s name but are forbidden to report it.

In another case, a judge approves the release of a captive’s interrogation video showing the blurred face of an American agent. But a federal prosecutor on loan to the Pentagon withholds it “out of an abundance of caution.”

Even as the U.S. government edges toward full-blown, war-crimes trials by military commission here, with more hearings next week, all sides are grappling with what information can be made public and what must be kept secret.

Consider: A new courtroom here sequesters Pentagon-approved spectators behind a soundproofed window. If a terror suspect tries to shout about his treatment in U.S. custody, a military censor can mute the audio feed that observers hear.

Under rules that protect interrogation techniques, the Pentagon’s war court won’t let the reputed 9/11 architect, Khalid Sheik Mohammed, say he was waterboarded — something the CIA director, Air Force Gen. Michael V. Hayden, confirmed on Feb. 5.

This will, I suspect, make for a very interesting First Amendment case before the show trials are done (and yes, the ACLU is already working on just that thing). Until those cases work their way through the courts, though, I hope we see more articles like this. They expose the degree to which these are show trials. And the degree to which the military is worried about not just sensitive security information, but also embarrassing information such as the name of the Colonel who allegedly framed Omar Khadr for murder, will be released.

And if there were any doubt about the speciousness of the claim, compare what Gordon England says when he has a pragmatic reason to want to avoid showing Khalid Sheikh Mohammed publicly:

Gordon England, deputy secretary of defense, issued a memo banning the release of Guantánamo detainee photos. The Pentagon is bound by the Geneva Conventions not to humiliate detainees, it said, and “We respect the dignity of all persons.”

Then this, ‘Geneva Conventions prohibit the use of images that could be deemed `propaganda,’ and because I don’t know or can control what others may do with it — I don’t want to be in the position of violating the law — thus I’m exercising caution.”

With the seeming ubiquitous pictures of KSM just after he was arrested–in which he happened to look like the hairy drunk who lives next door.

I guess some propaganda is more embarrassing than other propaganda.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

54 replies
  1. WilliamOckham says:

    Ok, this sorta off-topic, but I can’t help myself. This may be the outrageous example of “but Clinton did it too” that I’ve ever seen. Douglas Kmiec descends into self-parody. He waves an unsubstantiated and meaningless freeper allegation about Hilary Clinton to distract everyone from the Yoo memo.

    • Neil says:

      Kmiec on Yoo:

      – If you’re intelligent, then it is inconceivable that you would do shoddy work.
      – “Shoddy” is not a sufficiently nuanced characterization of Yoo’s Work.
      – It’s not Yoo’s fault, OLC has been a revolving door.
      – Hillary concealed evidence Nixon should have received in his defense. WHAT!?

      Tonight on the NewsHour, New York Times reporter Eric Lichtbau called the newly released John Yoo memorandum “shoddy.” I think that an unfair characterization given the intelligence of Professor Yoo and an insufficiently nuanced characterization given the context of 2003 and the more careful analysis Marty Lederman is supplying on the topic on this site. It is a description that also fails to capture how ill-served the president and the executive branch have been by the unprecedented turn-over and number of acting officials at the helm of the once venerable office of legal counsel, which is intended not only to make tough calls that may be politically unpopular, but also to have the good sense to send back rough drafts of legal analysis or at least not circulate them for political acceptability. But how ever one pieces together the story of Messer’s. Bybee, Yoo, Levin, Goldsmith, Bradbury (I know I must be leaving someone out) in OLC, the claimed offense of Mrs. Clinton is not sloppy, but corrupt, work.

      • earlofhuntingdon says:

        Expecting fact-based criticism of this administration from Doug Kmiec is like expecting it from Bobo Brooks.

  2. DefendOurConstitution says:

    The Pentagon is bound by the Geneva Conventions not to humiliate detainees

    But I thought Geneva Conventions did not apply. I guess only when it is convenient to control/enhance propaganda.

    • Neil says:

      There’s humiliation and then there’s humiliation. It’s one thing to perform enhanced interrogation tastefully in private and quite another to embarrass these men by showing compromising photographs of it all over the world. Please. Let these extremely dangerous criminals have their privacy.

  3. Hugh says:

    “We respect the dignity of all persons.”

    Nothing says “respect for dignity” like waterboarding someone.

    Then this, ‘Geneva Conventions prohibit the use of images that could be deemed `propaganda,’ and because I don’t know or can control what others may do with it — I don’t want to be in the position of violating the law — thus I’m exercising caution.”

    How does England square respecting the Geneva Conventions with waterboarding? The Conventions are not a sometime thing. If KSM is covered by them now, then he should have been covered by them at all times he was in US custody. If England is concerned that photographing a prisoner would be “violating the law”, that is a clear admission that KSM is covered by the Conventions, and not as you might expect the Administration would argue that KSM was only being treated “as if” he were being covered by them.

    The idea here is that if KSM was not covered by the Conventions, there could be no violation of law based upon them, but if he is covered by the Conventions, then he was during the whole time of his detention. Sounds to me like England just admitted the basis of a war crime.

  4. perris says:

    Under rules that protect interrogation techniques, the Pentagon’s war court won’t let the reputed 9/11 architect, Khalid Sheik Mohammed, say he was waterboarded — something the CIA director, Air Force Gen. Michael V. Hayden, confirmed on Feb. 5.

    so they are saying quite literally, “you are not allowed to mount a defense’

    what the hell has happened to us

  5. Hugh says:

    – “Shoddy” is not a sufficiently nuanced characterization of Yoo’s Work.

    I agree with Kmiec. Crap would be more accurate.

  6. skdadl says:

    Thank you for calling them what they are, EW: show trials. And thanks also for that report from the Miami Herald. I’m still hoping that our Supremes are going to shame our PM into taking our responsibility for Khadr, a child soldier, seriously, and every bit of information helps. Where are you, “Colonel W”? Or what journalist would risk telling the SCC?

    Back on the last thread, masaccio @ 90, reading another of those interesting footnotes (I think that’s a footnote, but I sit to be corrected), asked:

    Here’s another good one:

    As this Office has previously opined, unless “Congress by a clear and unequivocal statement declares otherwise” a criminal statute should not be construed to apply to the properly authorized acts of the military during armed conflict. Shoot Down Opinion, 18 Op. O.L.C. at 164…. For many years, our Office has also applied this canon in several highly classified contexts that cannot be discussed in this memorandum.

    So, here’s a new game: what are the “highly classified contexts”?

    And Mary @ 92 guessed S American “drug war” contexts, which is a probable. I suspect as well friendly-fire incidents with allies in the GWOT, which get rationalized away in the same way that England turns all white-gloved over photographs of detainees. If we told you about that, it would have national-security implications for our good relations with our allies (for which read: our allies would be furious).

  7. RickMassimo says:

    A defense lawyer lets slip at the war court convening here that a battlefield commander changed an Afghanistan firefight report in a way that seemed to help a U.S. government murder case. Reporters hear the field commander’s name but are forbidden to report it.

    Excuse me? Forbidden? You can’t forbid anyone to report anything. You can say that if it gets reported the reporter doesn’t get to come back tomorrow. If the reporter and his editors are spineless enough to consider that “forbidding,” that’s their fault (and our problem).

    Report it. And if they don’t let you back in, well, there’s your story for the next day.

      • skdadl says:

        Well, ok, I’m making that up. I don’t know how the court does these things. But the SCC are thinking about this case right now, mainly because our (often comical) CSIS (Canadian Security Intelligence Service) galloped down to Guantanamo and participated in Khadr’s interrogation, then apparently handed over summaries to agents of the U.S. government. We are such wannabes. It’s embarrassin’.

        Our police — CSIS, the RCMP, etc — are an endless source of humour here. You can’t imagine how often they fall over their own feet.

    • Peterr says:

      With the exception of reporters who are uniformed members of the military. For them, doing that which has been “forbidden” can earn them some rather harsh questions from the judge, as well as other very real consequences.

      • bmaz says:

        Well, there are priorities in life; and if your hound is like mine, they get rather uppity if they think it is time for that.

        My question was whether they garnered this mute button idea from the Michael Powell book of “Breast Practices”.

  8. al75 says:

    The notion that terror suspects have no rights goes to the heart of the issue: our collective rights are defined by the rights that the prisoner and the defendant have.

    Rightists argue that the suspect is different than us, and they wisely choose foreigners, people with funny names, people with funny religions. Progressives argue for generalized rights, and subjugation of goverment power to individual liberty (this used to be a rightie talker too, but we don’t hear it much, now the commies are gone)

    It’s hard for me to understand the paramount importance Bush/Cheney/Rummy place on torture. I know what they claim, and I know some of the other political angles that make this work for them.

    Some of it comes from the Israel/Palestine conflict: hard-core zionists justify their treatment of an entire people by conflating an entire people with “terror” and cracking down accordingly. And certainly alot of Israeli rightist here and in Israel saw in 9/11 a critical opportunity to bind the US to ever-closer support of Israeli non-accomodation.

    But there seems to me something more – some fundamental attraction to grabbing somebody different, stripping that person of all human rights and human dignity, and beating the hell out of them.

  9. Minnesotachuck says:

    OT: The Badger at Arablinks is reporting that a bombing campaign of unknown dimensions is underway in the Sadr City section of Baghdad, and is receiving zero coverage in the MSM. The only mentions he finds are from the Xinhua (Chinese?) news agency and a one-sentence report on McClatchy. 500 lb bombs are pretty big tits for 81 mm mortar tats, if you pardon the expression. Or are they more than that?

    • Hugh says:

      500 lb bombs are pretty big tits for 81 mm mortar tats, if you pardon the expression

      We have been using the term a lot the last day or two but their use in an urban area is likely a war crime. What this comes down to is that Maliki had his ass handed to him in Basra so the US Air Force has stepped in to exact a price from the Mahdi Army. This is about punishment not the accomplishment of any real military objective and is why I raise the issue of a war crime.

    • kspena says:

      OT-Yes, this is not being reported in US; apparently trying to stop attacks on Green Zone. Reports in Baghdad say Amb. Crocker has order embassy moved to palace at airport. Rockets have forced exodus of zone.

      http://arablinks.blogspot.com/…..nzone.html

  10. Mary says:

    When did Gordon England suddenly decide they were bound by the Geneva Conventions? IIRC, Mora tried to get him to admit that proposition over and over, to no avail and now England’s pals have managed to get Congress to override the Geneva Conventions in both the Detainee Treatment Act and the Military Commissions Act – so suddenly with all kinds of legislation immunizing violations of the conventions and proselytzying for continued violations, he decided to embrace them?

    I especially like, ” I don’t want to be in the position of violating the law” Gee, after years of telling us there are no laws implementing the Conventions, and then getting laws that expressly derogate the conventions and immunize for violations, after torture deaths and Kurnaz and the Chinese Uighurs and a London chef and an 11 yo disappaered from his family after being purchased in a human trafficking transaction …England doesn’t want to be “in the position of” violation law. My lack of imagination fails me in thinking of what that position would look like.

    15 – a reporter needs to put it on wikileaks and then ALL papers need to report that a wikileaks story says … BTW, the poor medic’s family, based on what the US military was saying, filed suit against Khadr’s family and took a default judgement of a hundred million or so for wrongful death in a federal court suit in Utah.

    I’m guessing that if KSM can’t say he was waterboarded, he’s also not going to be able to ask about his children.

    England can stand tall in his uniform – after all, he has bravely refused to release humiliating pictures of KSM. Now he can continue unconcerned over using KSM as domestic propaganda to not only influence elections but to encourage internal support for war crimes. After all – here is a really truly bad bad guy. Doesn’t that make it all ok?

    The most humiliating picture I can think of right now that the military could release would be one with England, Hayden, Myers, Miller and Pace, all in uniform, surrounding Bush and Rumsfeld.

  11. Hugh says:

    I don’t really quite get the whole “We went in to kill them, and now we have to punish them for resisting being killed” train of thought.

    It is this kind of clown thinking currently exemplified by General Petraeus and Ambassador Crocker that keeps us going from one political failure to another in Iraq. For them, bombing civilians is a great way to win hearts and minds.

  12. Mary says:

    5 – Ok, I didn’t think I could laugh this morning, but you proved me wrong.

    1 – Aw, Kmiec. Such a cheerleader, with Goldsmith, for the secret military tribunals but always ready to distance himself from the things his boys do in those back rooms after he gives them the keys.

    Back in 2005, Kmiec was commenting on the Kurnaz case – which only came to light because Carl Levin and Harry Reid hadn’t helped kill habeas yet – and said

    Douglas Kmiec, a law professor at Pepperdine University who supports the tribunal process, said the lack of evidence against Kurnaz is “very troubling” and should prompt a military review of this particular tribunal.

    “Failing to do that would undercut the argument that the military, in times of war, is capable of policing itself,” he said.

    Well, given that his friend Yoo had told them they didn’t have to police themselves – because you could gang bang a 2 yo as long as you dutifully stood up and said you were just trying to get intelligence from her great grandmother tied up in the corner – I’m not sure what his definition of “policing itself” would entail. What I do know is that no amount of Chinese refugees, 11 yos, London chefs, etc. has made him turn in his pom poms, even though that military review he said was required never really seriously happened.

    He also never mentioned what should happen to the people involved in kidnapping a protected person and disappearing them out of country for years, into depraved abuse where no rules apply. I’m still waiting for him to get back to us on that one.

    8 – the “unprecedented turnover” seems to have involved a guy who gave carte blanche to everything (Bybee) being put on the 9th Circuit as a reward, his deputy getting a reward for assiting, Ed Whelan being passed over because he wasn’t criminal enough, Goldsmith being afraid of personal retribution for criminal implementation of the policies he and Posner espoused and being give a Harvard reward to assuage him, Levin being tossed for not beign criminal enough, and a pretty damn long reign of Bradbury. The President hasn’t been illserved, he’s been very well served indeed. Its the American people and the nation that weren’t well served and the natterings of people like Kmiec who still refuse to just call a spade a spade. His pals were criminals in search of the ulitmate power position from which to launch their crimes – a position where they owned not only the prosecutorial mechanism but also de facto owned even the media coverage on what was said about their crimes through drafting in people like Kmiec and Rivkin as pseudoserious commentators.

    18 – thanks for that reminder/update
    22 – my vote is also for knowing and intentional
    24 – not even from the army, from the civilians who just won’t love us enough, no matter how much we bomb them.

    • earlofhuntingdon says:

      Doug Kmiec defends Yoo with his usual, Bobo Brooks with a law degree schtick at Slate’s “Convictions” blog. With a little MoDo thrown in. The title is his whole argument:

      Tortured Memories — Of Yoo & Hillary – legal memoranda in the shape of history

      For Doug and his brethren, including once competent reporters now on the Paris of skid rows, the NY Times OpEd pages, Ground Hog Day is always the Clinton impeachment trial.

      http://www.slate.com/blogs/blo…..fault.aspx

  13. BayStateLibrul says:

    Beejebus, my head is falling off.

    Can’t the Congress call for hearings on the Yoo mess, and all
    this bullshit?
    We need fucking answers…

  14. JohnLopresti says:

    It would be interesting to make a montage video of the two processes, the actual courtroom proceedings, and the censored audio and video feeds in the jury area. The ABA has made a diplomatic gesture to Bush, offering to improve the quality of the showtrials to add street cred.

    Last week in a peripherally related matter, MA’s Rep.Delahunt held a field hearing of a subcommittee, which convened in a Boston courthouse to listen to some of the local attorneys who have clients among the subset of approximately 50 “refugees” who have remained confined but are effectively stateless because of problems with repatriation.

    Several of the defense counsel in nonCapital cases have launched a political website in the US.

    Last week a seventh capital case added to the six showtrials, the new addition an accused in a bombing in Africa about ten years ago.

  15. MadDog says:

    OT – Buttressing Mary’s points in an earlier set of comments – from Secrecy News:

    The OLC Torture Memo as a Failure of the Classification System

    The Justice Department Office of Legal Counsel memo on interrogation of enemy combatants that was declassified this week “exemplifies the political abuse of classification authority,” Secrecy News suggested yesterday.

    J. William Leonard, the nation’s top classification oversight official from 2002-2007, concurred.

    “The disappointment I feel with respect to the abuse of the classification system in this instance is profound,” said Mr. Leonard, who recently retired as director of the Information Security Oversight Office, which reports to the President on classification and declassification policy.

    “The document in question (pdf) is purely a legal analysis,” he said, and it contains “nothing which would justify classification.”

    ~snip~

    “To learn that such a document is classified has the same effect for me as waking up one morning and learning that after all these years there is a ’secret’ Article IV to the Constitution that the American people did not even know about,” said Mr. Leonard.

    “There is no information contained in this document which gives an advantage to the enemy,” he said. “The only possible rationale for making it secret was to keep it from the American people.”

  16. MadDog says:

    And more OT from Secrecy News:

    Attorney General Michael B. Mukasey this week expressed strong Bush Administration opposition (pdf) to pending legislation that would regulate the use of the state secrets privilege in civil litigation.

    The proposed “State Secrets Protection Act” (S.2533), the Attorney General wrote in a detailed seven-page letter, “would needlessly and improperly interfere with the appropriate constitutional role of both the Judicial and Executive branches in state secrets cases; would alter decades of settled case law; and would likely result in the harmful disclosure of national security information that would not be disclosed under current doctrine.”

    In short, “We strongly oppose this legislation.”

    Shorter Mukasey: “If we can’t keep hiding the ball, we’re all going to the slammer.”

  17. earlofhuntingdon says:

    Mr. Bush was right. He did look into Vladimir Putin’s eyes and see into his soul, and his soul talked back. Mr. Bush has resurrected a Soviet system of “justice”, blind to all but the will of the Leader and the good of the Party. The inkwells of Kafka and Orwell are dry, they have no more tears to shed.

    America isn’t a statue of justice draped to protect the false modesty of a witless Attorney General; nor is it a statue of liberty in New York harbor, or a law book or religious text on a shelf. An earlier poster at FDL had it right, quoting The Judgment at Nuremberg: a country is what it stands for when standing for something is hardest. In America today, Dick Cheney always sits down, and George Bush lives in a basement, riding a stationary bicycle, pedaling and going nowhere. And John McCain thinks what we need is four more years. I disagree.

  18. earlofhuntingdon says:

    Dahlia Lithwick is usually smarter than this. Her take on the Yoo Two memo is more yawn than yowl, more defense of lawyers’ limitations – as if Yoo’s memo were responsible lawyering rather than after-the-fact justification for whatever the boss was doing – than criticism of what they do as citizens.

    http://www.slate.com/id/2188008/pagenum/2

    She’s a highly-credentialed lawyer and good writer. She hits all the right cautionary notes and cites Lederman and others for depth. Her essay is also filled with the requisite snarky conflation of analysis and pop culture – Yoo managed to cook him “some law in his constitutional Easy-Bake Oven”. But her critique falls flat.

    I think it’s because she builds it around the passive voice. Yoo’s Yoo Two memo “became” torture policy, rather than it was used to justify an existing policy. Yoo’s a “mid-level lawyer”, as if he were some desk officer on duty when a call came in saying, “We’ve got us some prisoners; what can we do with ‘em?”

    I don’t think that captures Yoo’s place in the Addington/Cheney network, or political and legal genesis of how this memo came to be, or how Team Cheney used it to justify its torture policy. It’s too soon to call her Maureen Lithwick, but if she favorably quotes Doug Kmiec or MoDo too often, it’ll be time to change the name plate.

  19. bmaz says:

    If nobody has linked it before, here is a Q & A with Yoo from the new Esquire bearing today’s date.

    Yoo: The interrogation question came up, I think, in March, when Abu Zubaydah was captured. That’s what provoked that question.

    Esquire: That’s the one that’s been so strongly criticized. Goldsmith said it was slapdash and wasn’t well reasoned.

    Yoo: I think that’s unfair, first because Goldsmith never issued an opinion of his own. He’s certainly free to criticize. It goes back to unless you’ve actually made the hard decision yourself, then you don’t really know how you think it through, what you would do. So he says “slapdash opinion,” but we have no idea what he would have done, because he left. Second thing is, it went through the normal process opinions go through in the Justice Department. It was primarily worked on by career staff people, and then went through a process of editing and review by different offices within the department, no different than any other.

    Esquire: Ashcroft saw it?

    Yoo: He approved it. And so the idea that’s its slapdash, or it was haphazard — I don’t think was true.

    Some interesting stuff in the Q & A

    • earlofhuntingdon says:

      Zing, personal attacks always come first. Goldsmith “never issued an opinion of his own”; perhaps because he was so busy rewriting Yoo’s. Yoo offers up the quintessential faculty club put down to describe the unconnected outsider of lesser brains. Yoo’s had good coaching; the sound byte will carry, but without much bite.

      Goldsmith’s credentials are at least as good as Yoo’s, his job at Harvard has higher standing than Yoo’s at Berkeley, and most importantly, his work and the confidence placed in it by informed and responsible leaders stands in marked contrast to the dustbin quality of Yoo’s own.

      • bmaz says:

        Heh heh, pretty petty sniping. I got news for both Yoo and Goldsmith, most of the lawyers I spent the better part of my career around would thumb their nose at both these jerks as being paper pushing twits. To the guys I am talking about, you shouldn’t even call yourself a lawyer until you have live courtroom experience in front of a jury; which, to the best of my knowledge, neither Yoo nor Goldsmith particularly do. I don’t really subscribe to that thought process, there are a lot of facets to the law, but the petty sniping of the torture twins does crack me up. Who the fuck are they (other than a huge embarrassment)?

        • earlofhuntingdon says:

          I like the English tradition, apart from its restrictive trade practices/class uppitiness aspects: it recognizes that there are barristers, courtroom lawyers, and solicitors, who do everything else.

          Just as there are pilots who can land on a rolling, pitching and yawing carrier deck after dark, and those who need two and a half miles of flat prairie to land a behemoth loaded with newcueler bonbons. I wouldn’t hire a corporate/tax lawyer to handle a murder case, or a cowboy hatted showman to negotiate a joint venture in China, but I might reverse the assignments.

          That’s one reason I have such disdain for the loyalty-at-all-costs priority of this administration and its GOP CongressCritters. It leads to idiotic mismatches of talent and work to do. But then George thinks he does a good job at everything. That’s why he hates facts and despises oversight; deep down where the bible don’t go, he knows it ain’t so.

  20. Neil says:

    bmaz, Thanks for the link.

    Yoo argues that Goldsmith cannot reasonably criticize the work unless he himself first endeavors to address the same legal question. Yoo offers no explicit defense for the charge the opinion ‘wasn’t well reasoned’. Yoo implies all he usual suspects had a chance to review the work, that is was vetted according to the time-tested process that yields good legal opinion from OLC.

    Isn’t the point of a legal opinion to make a compelling argument that rests on legal principles, unimpeachable fact, thorough analysis and compelling logic? That this argument would stand on its own? So how can Yoo claim that his legal opinion cannot be criticized unless the critic first endeavors to write their own legal opinion the topic. It’s bullshit, right?

  21. Hugh says:

    As someone pointed out yesterday, a lawyer whose primary references are often to himself is saying that he has no basis in the law for his argument. Yoo’s memo is replete with such referencing.

  22. Markinsanfran says:

    Okay, that’s it. I just (finally) joined the ACLU. Hopefully they will send me a card so I can be a “card-carrying member”

    Seriously, though. These “trials” are BS. Besides, who ever heard of secret show-trials?

Comments are closed.