John Adams and Patrick Fitzgerald

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.

Now, it appears that the CIA’s concerns were included in the memo to Brennan over DOJ’s wishes. Or perhaps Fitz is just going to review the case. And if the JAP people did, as they say, use only external information to ID these torturers, then they are likely legally safe and the involvement of Fitz is simply going to quiet down the controversy.

But all that’s obviously NOT what this is about, notwithstanding efforts to turn this into a big scandal.

It’s about three things:

First, whether detainees at Gitmo will be able to call witnesses in legal proceedings. The government has protected the identities of the torturers at every step of the way, thereby preventing any detainee from holding a torturer responsible for their torture or, just as importantly, getting the torturer to testify to exonerating information (remember, for example, that some of the torturers have conceded that the confessions the detainees made were false). What JAP is trying to do is simply collect the information they need to litigate their cases.

CIA scandal-mongering again to avoid any liability for torture. It’s worth noting, CIA is using exactly the same excuse to explain their concern here as they used to explain why they destroyed the torture tapes:

CIA counterintelligence officials oppose the effort and say giving terrorists photographs of interrogators has exposed CIA personnel and their families to possible terrorist attacks.

Now aside from how hollow this cry rings from a bunch of people who themselves threatened detainee family members, I really do wonder how they think a bunch of al Qaeda detainees imprisoned for life will be able to wreak revenge on their torturers? And I wonder how Mitchell and Jessen appear to wander freely with no care of such things?

But the other thing this is about is eroding all DOJ’s prosecutorial independence such that it cannot try any torture cases, because every single decision will have to be approved by former CIA bigwig John Brennan.  The torturers know that the White House wants to bury its head in the sand look forward. DOJ wants to simply do its job and weigh decisions independently. But CIA knows if DOJ does that, it will face repercussions for the things it did.

And so it turns what should be a thoroughly uncontroversial effort to cater to CIA’s concerns into a bigger scandal.

49 replies
  1. BoxTurtle says:

    Do I not recall that refusal to cooperate with legitimate discovery results in an automatic loss?

    If it goes to a real criminal court, would not the judge simply order the government to produce revelent testimony? The prosecution MUST produce any exculpatory evidence and the government can’t say “I do not recall”.

    Boxturtle (Attn DOJ: This is what happens when you try to defend an obvioualy incorrect position)

    Edit: Too many speling an tipo erorrs to correct. Plaese 4giv

  2. bobschacht says:

    Thanks for parsing this out for us!

    And speaking of parsing, my special decoder ring had trouble with this sentence:

    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.

    After reading the sentence about 5 times, it helped me if I put commas after “info,” and “detainees”. But once I was able to spot the subordinate clause, I was able to understand it without the commas.

    Bob in AZ

  3. alabama says:

    I’d like the JAP to identify (with legally acquired photographs) Cheney’s “stay-behinds” at the CIA. It would demystify these endless attempts at stopping the truth from rising to the surface.

    • readerOfTeaLeaves says:

      Whoa, it was eery to read this comment, as this was precisely my first reaction. (And I doubt that any of us will ever live long enough to learn how many non-US nationals were involved in this outrage, which I’m sure is well buried on claims of ‘diplomatic requirements’.)

      Plus, then we’d have a ‘map’ of those in government most determined to sink DoJ, which would be rather handy.

  4. clbrune says:

    I followed the Plame trial closely, and was impressed (*and* frustrated!) with Fitzgerald’s discipline and apparent integrity.

    I’d be willing to accept the outcome of a proceeding he is involved with, whether or not I agree.

    But I think EW is premature to say

    DOJ brought in a guy whom CIA can’t bitch about

    The CIA (and the mostly-Right Wing, pro-torture, anti-law crowd) can bitch about anything and everything, if it doesn’t go their way.

    • Mauimom says:

      The CIA (and the mostly-Right Wing, pro-torture, anti-law crowd) can and do bitch about anything and everything, if it doesn’t go their way.

      Fixed it for ya.

  5. earlofhuntingdon says:

    As Obama has done with Bush’s other extreme aspects of “governance”, he is domesticating Bush’s radical politicization of the DoJ. His is bipartisanship with a nasty bite. He is turning a watch dog into a wolf. I forget: is that White Fang or Call of the Wild?

  6. Mary says:

    You might look at it as bringing in someone that the CIA can’t bitch about, but you could also look at it as bringing in someone the left won’t bitch about either.

  7. fatster says:

    O/T for the car people

    Pay czar orders 15 percent pay cut for bosses at bailed-out firms

    “Kenneth Feinberg said 119 executives at AIG, Chrysler, Chrysler Financial, General Motors and its troubled former finance arm GMAC would see their cash rewards slashed by a third and their total pay cut by 15 percent versus last year.”


  8. JohnLopresti says:

    May mr. ew gather no moss.

    Re, post: I think the images hype much resembles the attempted purge which took place six days after Scotus passed the decision in re Hamdan, namely, from the link which I believe I left in the 8 days ago thread, a formal letter of complaint to congress after Gtmo brass confiscated slightly less than 1 tonne of attorney client privileged documents unannounced from Gitmo detainees. Katyal and Swift remained quiet throughout, but one attorney brought suit, which court complaint I had in a computer to which I have no access momentarily; here is the Time magazine rendition of the fable of illicit confiscation. Gtmo brass did a lot of tinkering with ac privilege around that time, and may still be highschooling probono counsel in similar ways there. Some of the interference might resemble sequestering evidence.

  9. fatster says:


    Reporter [Jerome Starkey]: NATO covering up, lying about civilian killings

    Includes links to his article for Harvard’s Nieman Foundation for Journalism and an earlier report in the Times of London.


  10. fatster says:

    O/T. Note: not the GA we left when heading for the ‘Frisco Bay.

    Three Guantanamo inmates transferred to Georgia


    • bmaz says:

      From the article you linked:

      Utiashvili declined to elaborate on the background or identity of the ex-prisoners, but said they would not be allowed to leave the former Soviet republic.

      So three detainees that apparently had such little value that they have just flat out been released, never charged much less convicted of anything and presumptively innocent, have been held in the hell of Guantanamo for many years with no substantive due process, are being shipped to a country not their own and not of their choosing, from which they will not be permitted to ever leave and nobody even knows who they are.


      • fatster says:

        If I could add a few words to your eloquent synopsis:

        “. . . and nobody even knows who they are nor why they were detained in the first place.”

        Very bitter seeds have been sown, and those who should will probably never be made responsible for the harvest.

  11. orionATL says:

    their defense if this, or these, courageous protesters are identified:

    #1. torture is illegal in the u. s.!!!

    not just bad manners,

    not just a matter of political opinion,

    but ILLEGAL.

    that means against the law, if that was not clear you repub/dem meatheads.

    #2. torture is illegal under the rules of war.

    #3. torture is illegal under international treaties and laws to which the u.s. is signatory, as are many tens of other nations, each nation a aignatory because it provides some protection for their (our) soldiers.

    an american, any american, who identifies an american torturer, is doing his or her duty to identify that man and woman, soldier or no, who tortured in america’s name.

    of course the devious obama admin, sadly following the lead of the devious bush admin, will charge some behavior not related to torture. and will attempt to silence attorneys and plea bargain with torture revealers.

    i hope to hell the torture revealers and their attornets have the detetmination to keep attention on the illegality that they have helped reveal.

    p.s. even as bizzare as washington is, i cannot imagine any sane admin lawyer pursuing charges against these folks.

    • bobschacht says:

      an american, any american, who identifies an american torturer, is doing his or her duty to identify that man and woman, soldier or no, who tortured in america’s name.

      I truly hope that every one of those bastards gets their picture in a large circulation newspaper so that their names and faces become known to the world. Let them explain to their kids why they tortured someone unnecessarily, without finding out anything important. Let their names be known to the DOJ and the International Courts, and let them live in infamy for the rest of their lives. And maybe even they would be tried for their war crimes.

      Bob in AZ

      • JohnJ says:

        and let them live in infamy for the rest of their lives

        Much better than having these animals living quietly and secretly among us. That chance is very unsettling.

  12. timbo says:

    What’s the statute of limitations on obstruction? Because, if folks at CIA are trying to hide the identity of tortures from the legal system of the US, that might well be obstruction.

      • person1597 says:

        Cascades of lilting harp music open the curtain on acts of obstruction nearly five years ago…

        Rayne December 4th, 2005 at 8:36 pm

        Garrett — I think it was 12-hours before Abu’s missive went out to staff; the rest is obsfucation intended to mask any continuing efforts to query this issue or any obstructive work on-going in the background. Hell, they’ve been obstructing for 2+ years now…

        Oh if only we could celebrate Fitzmas before this SOL is SOL. Yeah, sure, my blimp is named Porky.

  13. alank says:

    I don’t understand the logic averring that CIA scandal mongering is a ploy to avoid exposure to liability. I mean, for one thing, how often does the CIA get nailed for liability? But still, what good does it do for their legal cause to have a scandal break out? Perhaps I misapprehend the argument here.

  14. JTMinIA says:

    orion et al. –

    All your b*tch*ng and moaning about this or that being illegal seems to miss one very important point:

    “Not every wrong or violation of the law is a crime” – AG Michael Mukasey

    Grok that and move on (looking forward).


    • fatster says:

      Certainly not every violation of the law leads to criminal charges. Here is a list of corporate entities who were found to have defrauded Medicare and/or Medicaid, who signed Corporate Integrity Agreements and hence avoided criminal prosecution (unless, of course, they did not adhere to their Agreement, in which case they could be prosecuted).

      • JTMinIA says:

        I’m perfectly aware – and have been for a long time – that not every crime is ever prosecuted even when we know who did what. The beauty of Mukasey is how he took it to a whole new level when he same, effectively, that not every crime is a crime.

        • fatster says:

          I was not questioning your awareness at all. I was just using your quote to illustrate that there are levels of activity that reach the threshold of “crime” and it is interesting what occurs in the area of corporate misconduct regarding Medicare and Medicaid.

          Apologies for the misunderstanding.

  15. orionATL says:

    jtminia @38

    i remember mukasey saying that.

    but you left out a part of what he said.

    the full quote is: “not every wrong or violation of the law by a republican is a crime. in fact, most are not.”

    it’s one for the ages.

  16. klynn says:

    Perhaps now is a good time to announce I’ll be out all day tomorrow, maybe, and into the following day, to help mr. ew get older.

    Enjoy Mr. EW!

  17. BayStateLibrul says:

    OT Best quip I’ve seen about a Sweet Sixteen Match-Up

    “The Kentucky players before the game are gonna be talking about which NBA city they’re gonna be playing in next year. The Cornell players are gonna be talking about the Gross National Product of Uruguay.” – Pete Gillen, New York Post

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