David Nevin

Dangerous Censored Documents, in Soviet Russia and War on Terror America

Yesterday, in announcing the public release of documents relating to CIA’s publication of a Russian edition of Dr. Zhivago, the CIA bragged (justifiably) about its Cold War success in making books Warsaw Pact governments had banned available within those countries.

In a memo dated April 24, 1958 a senior CIA officer wrote: “We have the opportunity to make Soviet citizens wonder what is wrong with their government when a fine literary work by the man acknowledged to be the greatest living Russian writer is not even available in his own country [and] in his own language for his people to read.”

[snip]

Obtaining, publishing, and distributing banned books like Doctor Zhivago was an important Cold War-era success story for the CIA.

Even as CIA was declassifying the documents underlying Peter Finn’s book on this topic, the 9/11 Gitmo trial was being stalled, once again, by issues arising from the Court’s fragile Constitutional foundation.

The issue, this time, makes for ironic comparison with CIA’s boasts of making banned texts available to societies where the government was too fragile to release such texts.

On Monday, the 9/11 defense lawyers revealed that their Defense Security Officer had been recruited as an informant by the FBI as part of an investigation into how an unclassified 36-page tract written by Khalid Sheikh Mohammed became available to the HuffPo.

The Gitmo prosecutors claim to have no knowledge of the FBI investigation.

At Monday’s hearing, the judge pointedly asked the prosecutor, Army Brig. Gen. Mark Martins, if his prosecution team was “aware of this visit” by two agents to the bin al Shibh team member’s house on Sunday, April 6, to question him after church. At issue, in part, was how the Huffington Post and Britain’s Channel 4 television got a copy of the Mohammed commentary.

“No, we were not,” Martins replied — even before the judge had finished his question.

[snip]

At the prison, spokesman Navy Cmdr. John Filostrat on Monday night replied to a question of whether the prison staff asked the FBI to investigate the document this way: “I am unaware of any investigation and won’t get into ongoing legal proceedings, anyway.”

Tuesday, a Pentagon spokesman said that while Martins did give the FBI the copy of the Mohammed document neither the chief prosecutor “nor the prosecution team had any idea that an investigation was launched.”

“He gave it to the FBI to maintain as evidence in event that there could at some point be an investigation,” said Army Lt. Col. Todd Breasseale, “and in the event that it is determined that releasing [Mohammed’s 36-page commentary] was unlawful.”

Nevertheless, it appears someone requested an investigation into the disclosure. And DOJ’s part of the prosecution team suggests the judge would infringe on Executive Branch privileges if he investigates the FBI investigation.

Separately, a lead case prosecutor, Ed Ryan of the Justice Department warned the judge against asking to question the FBI agents who visited a defense team member.

“Your Honor is suggesting that you want to investigate an ongoing investigation. There are numerous government privileges that would be at stake,” Ryan said at the hearing. “I think the commission would be greatly mistaken to go down a road of trying to look inside an ongoing investigation being conducted by the Federal Bureau of Investigation if, in fact, one exists.”

Defense Attorneys also complained that a (perhaps now former) member of the Prosecution team is the Chief of Staff to FBI Deputy Director Mark Giuliano.

And then finally, there’s a member of the trial team, Ms. Baltes, who is also — who also serves as the Chief of Staff to the Deputy Director of the FBI. And I appreciate counsel’s unequivocal statement that the prosecution was not aware of this investigation, did not know — did not know that an investigation was taking place and did not direct FBI agents to go and try to penetrate Mr. Harrington’s team, but somebody did, and somebody at the FBI did. And I don’t think it’s too much of a leap to imagine that when a member of the trial team has a dual role as the Chief of Staff to the Deputy Director of the FBI, that there could be an interface there, and I think it would be appropriate to examine Ms. Baltes as well.

Joanna Baltes happens to have been the lawyer who, in January, refused to admit in public that the CIA had installed a means to censor Gitmo proceedings, unbeknownst to the Judge. Is she, once again, answering to the CIA above and beyond her obligations to a court purportedly delivering independent justice?

So our attempt to hold the perpetrators for 9/11 responsible for their crimes has once again ground to a halt as the Judge investigates whether and why (and at whose behest) the FBI is investigating the release of KSM’s unclassified writings.

Americans might ask, like Russians before them, “wonder what is wrong with their government” that we must delay justice in the 9/11 attack because someone made a shitty tract from KSM publicly available.

Don’t get me wrong. Unlike Boris Pasternak’s novel, KSM’s tract is not literature, not even close. Continue reading

John Brennan’s Kangaroo Court

Congratulations to Barack Obama, whose invisible hand censor has made Gitmo even more of a kangaroo court than it was under Bush.

As Jim laid out, over the last two days of Gitmo hearings, we saw (thanks to livetweeters like Carol Rosenberg, Jason Leopold, and Daphne Eviatar) someone improperly cut the feed from the court room to the journalists for 3 minutes, just as Khalid Sheikh Mohammed’s lawyer, David Nevin, started to read from his unclassified motion to preserve the black sites. After it happened, Judge James Pohl was rather angry about what he saw as an improper use of the censorship system. Today, it became clear that the OCA–the original classification authority–pressed the censor button, via some AV means that Judge Pohl either didn’t fully understand or want to discuss.

In other words, CIA has ultimate control over his court room.

For the last day, I’ve been predicting that Moral Rectitude Transparency and Assassination Czar John Brennan was responsible for the improper censorship. It was almost certainly some CIA minion Brennan will manage not long after his February 7 confirmation hearing rather than Brennan himself. Though remember–the legal record indicates that the National Security Council, and not CIA, asked to have torture made into a Special Access Program in the first place, though before most of the 9/11 detainees being tried were tortured (the exception, I think, is Ramzi bin al-Shibh). So either John Brennan in his guise as Obama’s NSC counterterrorism advisor or his rising CIA Director–ultimately, it was his portfolio censorsing unclassified information in the trial.

But it’s worth noting that this is the second time in a week that CIA has managed to dictate our legal process. Last Friday, John Kiriakou was sentenced for indirectly revealing to these same defense lawyers the identity of two of their client’s interrogators (one who actually engaged in the torture itself). DOJ originally decided that knowledge, by itself, did not merit charges. But CIA appealed to … John Brennan, and Patrick Fitzgerald was brought in and ultimately Kiriakou was delivered up as an example to cow others who might expose details of the torture program.

And then yesterday, you had a lawfully cleared defense motion being discussed in court, and CIA overruled the determination the trial judge had made, and ensured that journalists could not hear even that unclassified motion. Judge Pohl has deferred the discussion about preserving the black sites as evidence until next month, and it’s not clear whether the defendants or the journalists will be permitted to attend that hearing.

We shall see, next month, whether the CIA has taken over this judicial determination, as they did the judgement on the John Adams Project.

Will Guantanamo Judge Reveal Identity of Monday’s “Big Brother” Censor?

Carol Rosenberg in the Miami Herald and Peter Finn in the Washington Post recount a very strange sequence of events during yesterday’s proceedings in the Guantanamo military commission that is attempting once again to “try” the group of five prisoners that includes Khalid Sheik Mohammed for their conspiracy in bringing about the 9/11 attacks. As Rosenberg recounts, the judge was enraged when a portion of the proceedings was censored by someone outside the courtroom. The judge appeared to have no knowledge beforehand that anyone besides himself or his security officer could control the censoring process:

Someone else besides the judge and security officer sitting inside the maximum-security court here can impose censorship on what the public can see and hear at the Sept. 11 trial, it was disclosed Monday

The role of an outside censor became clear when the audio turned to white noise during a discussion of a motion about the CIA’s black sites.

Confusion ensued. A military escort advised reporters that the episode was a glitch, a technical error. A few minutes later, the public was once again allowed to listen into the proceedings and Army Col. James Pohl, the judge, made clear that neither he nor his security officer was responsible for the censorship episode.

“If some external body is turning the commission off based on their own views of what things ought to be, with no reasonable explanation,” the judge announced, “then we are going to have a little meeting about who turns that light on or off.”

Finn described the event as the action of an “invisible hand”:

Who controls what the public and reporters can see and hear at the military commissions at Guantanamo Bay, Cuba? Is there an invisible hand, unknown to even the military judge, that can switch off audio and video feeds?

Finn gives more details of the proceedings as the button was pushed:

David Nevin, one of Mohammed’s civilian attorneys, was discussing a defense motion to preserve any evidence from the secret overseas prisons where the defendants were held by the CIA. The motion had been declassified, but Nevin had barely gotten a sentence out when the audio feed to the media centers on base and at Fort Meade was smothered in white noise. Then the video of the courtroom was cut.

When the feeds were restored several minutes later, Judge James Pohl, an Army colonel, seemed perplexed as to not only why Nevin was censored but by whom. Pohl said he did not cut off the feed, and it did not appear that the court security officer who sits beside him did, either.

Rosenberg informs us that the judge was very upset:

But to court observer Phyllis Rodriguez, the judge appeared “furious” and “livid” when he realized that that outsiders had their finger on the censorship switch of his courtroom.

“It’s a ‘whoa moment’ for the court,” said Human Rights Watch observer Laura Pitter. “Even the judge doesn’t know that someone else has control over the censorship button?”

Both articles point to DOJ attorney Joanna Baltes offering to explain to Pohl in secret session how the censorship came about and it appears that Pohl intends to disclose who pushed the button if, as Finn states, “what happened could be explained in public”.

The event also upset the attorneys. As Finn reports, it prompted further concerns:

Nevin and other defense attorneys said they wanted to know whether there was some mysterious entity monitoring the proceedings — and whether that entity might be listening to communications between the lawyers and their clients.

Just who is responsible for this censoring? And, as Nevin speculates, is this same “invisible hand” also an “invisible ear” listening to his discussions with his clients?

This episode is yet another example of the folly of not trying these defendants in federal court. The military commission rules are an ever-changing mess where nobody, now apparently including the presiding judge, knows what is appropriate and what is not or even who determines what constitutes secret information. In a federal court, there never is a question that the judge controls all aspects of the proceedings.

Iran’s PressTV was highly entertained by the episode, citing both the “invisible hand” phrase and putting “open” into scare quotes in their lede paragraph about the session and its unexpected censoring:

During defense arguments in an “open” session of the US military trial of Guantanamo inmates, an ‘invisible hand’ suddenly cut off the audio-visual feed to the media, even mystifying the military judge.

It would appear that PressTV was laughing uncontrollably over this, as they attributed quotes from Finn’s Washington Post article to the New York Times, which, at the time of this writing, has not reported on the event.

At any rate, I will provide an update if an explanation from Pohl is forthcoming. That is, if I’m not too busy laughing at the irony of Iran being able to ridicule the US about censorship less than 24 hours after arresting a number of journalists for “consorting with hostile foreign news media”.

Update: The short answer to the question in the headline appears to be “no”. From tweets by Carol Rosenberg “Pohl on who controls button: “We’re getting to a line here of what’s public and what’s security. … I’m not sure what witnesses to call.”” and “Judge Pohl made clear that whoever hit the censorship button yesterday should not have, but did not clarify or describe who did it.” and also “#KSM attorney Nevin is asking for “courtesy” of understanding who’s listening in on hearings. Private talks between lawyer and client too.”

Update 2: More tweets from Carol Rosenberg lift the veil just a bit: “Now the Justice Dept secrecy expert, Joanna Baltes, has given judge and defense lawyers a piece of paper that says OCA reviews the feed.” and “OCA= Original Classification Authority, as in for example the CIA on interrogation techniques and black site program.”

Emptywheel Twitterverse
bmaz @KagroX Actually worked out well for me, as that meant actually less animals rustled. But a little weird.
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bmaz @KagroX The livestock inspectors in my case, for head counting+grazing considerations considered a mother and calf pair to be a "cow"
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bmaz @KagroX Yes, yes, but I NEEDED a place to drop that arcane tidbit I learned from representing a big cattle rustler. It's what Twitter is for
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bmaz @KagroX Calfs don't really exist, they are counted with their mothers as a "cow"
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bmaz @gideonstrumpet Encrypt the entire rest of your computer and information, because Facebook will suck it all up. That's mostly not a joke
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emptywheel RT @GregoryMcNeal: Regarding CIVCAS here is the excerpt from @jaylyall_red5 ’s data driven article http://t.co/FggUTLzeRb http://t.co/cNw1u
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emptywheel RT @carolrosenberg: Crosby now gets to offer expert opinion: "I believe that Mr. al Nashiri has suffered torture-- physical, psychological …
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JimWhiteGNV ISI Goes After Geo’s Broadcast License in Response to Accusations on Mir’s Shooting http://t.co/fBjUihucP8
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bmaz Paul Cassell is nuts, joint+several liability against defendnts for diffuse+unconnected crimes is bad idea (Paroline) http://t.co/1nHqBkTy7d
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emptywheel @puellavulnerata in 2002 Ted Olson said they might use FISA to find evidence of rape to use that to coerce people to inform. @mattblaze
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JimWhiteGNV Oh my! I think the militants in the tribal areas just got called cockroaches by Pakistan Today: http://t.co/SPyFiWTnrR
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