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John Brennan’s Kangaroo Court

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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.

The Top Unmentioned Obama Replacement: Robert Mueller

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A slew of second-term cabinet speculation articles have come out (National Journal, first posted before the election, and NYT and USAT today).

And while they seem to indicate Jack Lew is likely to replace TurboTaxTimmeh Geithner and Secretary of State will be the subject of active speculation for some time (with intriguing speculation that Howard Berman, who lost to Brad Sherman in CA, might be under consideration), one key role–albeit not of cabinet level–is missing:

FBI Director.

After all, Robert Mueller is already 2 years beyond his sell by date; Obama extended his term to get past the election (he said). And regardless of rank, the FBI Director is one of the most important figures in the increasingly powerful surveillance state.

And there have been some very troubling names mentioned in discussions to replace him, including NYPD’s Ray Kelly, who would really be the second incarnation of J Edgar Hoover’s abusive power. There had been speculation that Patrick Fitzgerald wanted the job, but his decision to join Skadden Arps just before the election suggests he knew he wasn’t going to get that job.

Particularly given Eric Holder’s apparent increasing doubt that he’ll stick around, we have the possibility of seeing something worse–all the capitulation we got from Holder in the first term, plus and FBI Director who has none of the claimed measure of Mueller (though I’ve always had my doubts about those claims).

A new FBI Director (which is guaranteed), particularly if it came with a new Attorney General, could either set a dramatic new course or harden in the old course. And I fear it is most likely to be the latter.

The US Attorney for CIA Scrambles to Cover-Up CIA’s Torture, Again

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Bmaz just wrote a long post talking about the dilemma John Kiriakou faces as the government and his defense lawyers attempt to get him to accept a plea deal rather than go to trial for leaking the names of people–Thomas Donahue Fletcher and Deuce Martinez–associated with the torture program.

I’d like to look at four more aspects of this case:

  • The timing of this plea deal–reflecting a realization on the part of DOJ that their efforts to shield Fletcher would fail
  • CIA’s demand for a head
  • The improper cession of a special counsel investigation to the US Attorney for Eastern Virginia
  • The ongoing efforts to cover-up torture

The timing of the plea deal

Intelligence Identities Protection Act cases will always be risky to bring. By trying someone for leaking a CIA Agent’s identity, you call more attention to that identity. You risk exposing sources and methods in the course of proving the purportedly covert agent was really covert. And–as the case against Scooter Libby proved–IIPA often requires the testimony of spooks who lie to protect their own secrets.

There is a tremendous irony about this case in that John Kiriakou’s testimony in the Libby case would have gone a long way to prove that Libby knew Valerie Plame was covert when he started leaking her name, but now-Assistant Attorney General Lanny Breuer talked Patrick Fitzgerald out of having Kiriakou testify. Small world.

Bmaz notes that the docket suggests the rush to make a plea deal came after Leonie Brinkema ruled, on October 16, that the government didn’t need to prove Kiriakou intended to damage the country by leaking the names of a bunch of torturers. That ruling effectively made it difficult for Kiriakou to prove he was whistleblowing, by helping lawyers defending those who have been tortured figure out who the torturers were.

But the rush for a plea deal also comes after Matthew Cole and Julie Tate filed initial responses to Kiriakou’s subpoena on October 11. And after the government filed a sealed supplement to their CIPA motion that same day.

While both Cole and Tate argued that if they testified they’d have to reveal their confidential sources, Tate also had this to say in her declaration.

In 2008, my colleagues and I were investigating the CIA’s counterterrorism program now known as Rendition, Detention and Interrogation Program” (the “RDI Program”).

[snip]

I understand that defense counsel has subpoenaed me to testify about the methods I may have used to obtain the identity of CIA officers during 2008 while I was researching the RDI program.

Tate doesn’t say it explicitly, but it’s fairly clear she was able to get the identity of CIA officers involved in the torture program. Her use of the plural suggests she may have been able to get the identity of more than just Thomas Fletcher and Deuce Martinez. And she says she would have to reveal the research methods by which she was able to identify CIA officers who were supposedly covert.

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Cheney’s Thugs Win the Prize for Leak Hypocrisy

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I wasn’t much interested in Mitt Romney’s latest efforts to change the narrative from the evil things he profited off of at Bain Capital and the tax havens he stashed the money he got as a result. Not only don’t I think journalists will be all that interested in Mitt’s claim that Obama’s White House is a leaky sieve. But I’m not about to defend the Most Fucking Transparent™ White House in Fucking History against such accusations.

Until Cheney’s thugs start leading the attack.

Such as Eric Edelman, who says we need “change” because Obama’s Administration leaked details of the Osama bin Laden raid.

Eric Edelman is this guy:

Shortly after publication of the article in The New Republic, LIBBY spoke by telephone with his then Principal Deputy [Edelman] and discussed the article. That official asked LIBBY whether information about Wilson’s trip could be shared with the press to rebut the allegations that the Vice President had sent Wilson. LIBBY responded that there would be complications at the CIA in disclosing that information publicly, and that he could not discuss the matter on a non-secure telephone line

Four days after Edelman made the suggestion to leak information about Joe Wilson’s trip, Scooter Libby first revealed to Judy Miller that Valerie Plame worked at the CIA.

But Edelman is not the only one of Cheney’s thugs bewailing leakers: (h/t Laura Rozen, who follows BabyDick so I don’t have to)

Romney today at VFW on contemptible conduct of Obama White House leaking classified info for political gain. Must read. http://tinyurl.com/bw4s4lt

Now, to be fair to dear BabyDick, unlike Edelman she has not been directly implicated in her father’s deliberate exposure of a US CIA officer working to stop nuclear proliferation. Unlike Edelman, she was not protected from legal jeopardy by Scooter Libby’s lies.

But she did co-author her father’s book, which was a whitewash of his treachery (even if it did reveal that Cheney had a second interview with Pat Fitzgerald, one treated as a grand jury appearance, just around the time Fitzgerald subpoenaed Judy Miller. BabyDick Cheney is complicit in the lies the Cheney thugs have used to hide what a contemptible leak for political gain the Plame leak was.

And now she thinks she should lecture others about far less treacherous leaks?

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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Overview of the Pat Fitz Resignation Press Conference

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Patrick Fitzgerald just finished his resignation press conference (the blockquotes are my notes).

In his own statements, he focused on comments to the people he works for, and those he works with. That was largely a tribute to the 300 people who work in the office, making it clear that the work he often gets thanked for publicly is done by those 300 people. He emphasized that those people would still be here working, doing good work.

I say that not just to make myself to feel less bad. Want citizens to appreciate what a treasure the people I work with are. The other part is that come June 30, that 300 plus team that is really hard working rolls on, and will keep rolling on. Fight against corruption, what we really need is public to keep coming forward.

Both in his opening statements and in later questions, Fitz seemed to want to encourage people to come forward to report corruption. He also talked about the problem of policing so aggressively that people being to fear the authorities.

We’d prefer to learn about corruption from people coming forward, not from a bug.

[snip]

When you start to see people being afraid of us, when citizens fear being shaken down, that’s a bad thing.

Jumping ahead, an emphasis on the continuity of the office is largely how he answered my question about MF Global. I asked whether DOJ had yet decided whether this office or SDNY would have the lead in that case. He refused to comment, but said anyone working in this office would continue to do good work. (Note, he said “this office,” not DOJ generally.) (I asked Randall Samborn later whether the decision on who had the lead in the MF Global case had been made and he would not say either.)

Fitz largely explained his departure in terms of a natural time to leave.

Not an easy decision. Am I rushing out in 11th year of my term. People have terms for a reason. Won’t be here until I’m 65. Comes a time when me and my family have to figure out what we do next. For the office it’s important that there be change.

I think it’s healthy after a certain point that there be change at the top. Always a matter of when, not if, I think you sort of know when it’s time.

As for what next, I don’t know, and that’s sincere. I’m going to run as fast as I can for 30 days that I have left.

When asked about whether he felt bad about the people he had jailed, he described the empty feeling he got after his first jury verdict on Valentines Day in 1989. As part of that, he emphasized that imprisonment is always a waste, not just in the case of white collar cases.

Feb 14 1989, first jury verdict day. Defendant convicted of drug offense. Taken into custody that day.

We think about prison in white collar cases, but we often don’t think about it on the violent side.

He also, in response to a question about being “overzealous” suggested it’s an injustice to bust the low guy on the totem pole without going after the top of the pyramid.

Someone asked whether there were any cases Fitz regretted not having charged. I called out, “Karl Rove.” He answered the question generally, without acknowledging my question. Harumph.

Fitz was asked whether he thought he could be a Defense Attorney.

I respect what defense attorneys do, but I don’t know what I’ll do next. There are some things I’m not comfortable with.

In response to a question whether he’d be interested in public service–possibly the FBI Director job–he said he had not been approached about the FBI job, but that if he was offered a public service job, he would certainly consider it, though he would balance the needs of his family.

Public service is in my blood. If a phone rings down the future and ID says public service, I answer the phone. I would consider if I can make an impact?

Finally, I asked if he had any reflection on our counterterrorism efforts so many years after he first indicted al Qaeda (note, I fucked up my question and said it had been 14 years; it has been 24 since the 1998 indictments). He said that they’ve made great progress against core al Qaeda. While affiliates remain a threat, core al Qaeda has largely been wrapped up.

We’ve made incredible progress. Core Al Qaeda has largely been rolled up. Remarkable progress in core al Qaeda.

He also emphasized the continuing, under-appreciated effort of FBI agents still chasing down leads.

Still dangerous threat out there we shouldn’t under-estimate. Remarkable job. People don’t appreciate people overseas,squads of FBI agents.

I did much better at this whole press scrum thing than I usually do, but as proof I’m not an expert yet, I failed to follow-up on what he thought about efforts to force terrorism trials into Military Commissions.

Finally, the funniest detail from the press conference. Apparently, when he called Dick Durbin to tell him he was resigning yesterday, the phone wasn’t working. He claims he may have missed most of the conversation.

When I spoke to Durbin yesterday phone was malfunctioning ,I missed a lot of call, may have had conversation in which I have no idea what he said.

There’s more in my Twitter stream. Plus, a plethora of questions about whether or not, as a Mets fan, he really could be baseball commissioner.

Glad I made it to the presser to at least ask a few serious questions. And make sure Karl Rove got mentioned as the single biggest person (Jon Corzine potentially aside) whom he didn’t prosecute.

Patrick Fitzgerald Resigns

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For better (he’s always been an aggressive, though usually fair, prosecutor) or for worse (I really believe he did try to hold Dick Cheney accountable for exposing Valerie Plame’s identity), Patrick Fitzgerald has resigned. And he’s a more honest prosecutor than a lot of the ones DOJ has these days.

From DOJ:

Attorney General Eric Holder issued the following statement today on the resignation of U.S. Attorney for the Northern District of Illinois Patrick Fitzgerald:

“Throughout his distinguished career as a prosecutor, United States Attorney Patrick Fitzgerald has served the American people and the citizens of Illinois with the utmost integrity and a steadfast commitment to the cause of justice.

“From his early consequential years in New York City confronting the terrorist threat to his strong leadership of the U.S. Attorney’s Office for the Northern District of Illinois, Pat has rightly earned a reputation over these last 24 years as a prosecutor’s prosecutor, overseeing significant cases involving public corruption, international terrorism and terrorism financing, corporate fraud, organized crime, and violent crime.

“A hallmark of Pat’s tenure has been his personal commitment to the Department’s mission and his willingness to accept the call of duty – whenever it came and whatever it required.   In 2003, he was appointed as special counsel in the investigation into the disclosure of the identity of a covert employee of the Central Intelligence Agency that resulted in the indictment of I. Lewis “Scooter” Libby, then chief of staff and national security advisor to the Vice President.  He also served as lead counsel in the trial, which resulted in Mr. Libby’s conviction on charges of perjury and obstruction of justice.  In 2010, I appointed Pat as Special Attorney to supervise the investigation that resulted in the pending indictment, in the Eastern District of Virginia, of former CIA officer John Kiriakou for allegedly repeatedly disclosing classified information, including the name of a covert CIA officer and information revealing the role of another CIA employee in classified activities.

“Over the years, he has gained the trust of two presidents and the unwavering confidence of four Attorneys General, and I am deeply grateful to him for his service and his friendship over the years.”

I’ll update as I learn more. Though I will say the timing–just after the crackdown on the NATO protestors as terrorists–is curious.

Update: Per CBS (NDIL’s announcements are bloggered), he has no immediate employment plans. His resignation will be effective June 30.

Obama DOJ Claims Journalists Are Like Drug Users

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HuffPo has a good write-up of Friday’s Fourth Circuit hearing on whether James Risen is entitled to a reporter’s privilege in the Jeff Sterling case. It describes Judge Robert Gregory challenging DOJ appellate lawyer Robert Parker’s claims that there is no privilege at all. And while Charlie Savage described the two other judges as harder to read, both stories noted Albert Diaz calling Branzburg v. Hayes–the SCOTUS precedent–“clear as mud.”

I’m particularly interested in the way Gregory pushed back against Parker. He made a distinction between the crime that reporter Paul Branzberg witnessed–the preparation and consumption of hash–for which he was called to testify to a grand jury, and what Risen allegedly witnessed.

“I don’t think there would be a balancing test because there’s no privilege in the first place,” Parker said. “The salient point is that Risen is the only eyewitness to this crime.”

Gregory told Parker that the Supreme Court’s Branzburg v. Hayes decision — which Parker cited as precedent for forcing journalists to testify when they had witnessed a crime — involved the witnessing of a different crime, “not the disclosure itself.”

Parker said what Risen did was “analogous” to a journalist receiving drugs from a confidential source, and then refusing to testify about it.

“You think so?” Gregory asked, clearly unconvinced.

“The beneficiary of the privilege is the public … the people’s right to know,” Gregory said. “We need to know what the government is doing,” he noted. “The king never wants anyone to disclose.”

The challenge is interesting as a threshold level, because the Obama Administration has built a lot of their attacks against leaks on the notion that journalists are witnesses to a crime (Patrick Fitzgerald obtained Judy Miller’s testimony on the same basis, though he did so though an application of the balancing test that Parker wants to throw out altogether).

Obama’s DOJ has gone further, though: they appear to have approved the use of National Security Letters to obtain journalists’ contacts in the most recent update of the DIOG. That would appear to allow them to learn the identity of sources journalists phone or email without any judicial review. Which in turn allows DOJ to determine a crime has been committed and based on that, eliminate journalists’ confidentiality because they were “witnesses” to what DOJ has unilaterally determined is a crime.

If Gregory rejected the government’s argument based on leaks being a different kind of crime, it would not only protect Risen’s sources for his MERLIN story, but it would mean the government would have to curtail its use of NSLs to get journalist contacts (at least in the Fourth Circuit).

But this passage is revealing for another reason. As I said above, Branzberg was subponaed because he witnessed the use of illegal drugs. But Parker, in constructing his analogy, said receiving classified information from a source is like receiving illegal drugs, not just witnessing them. Note what that misapplication of the analogy does: It is not illegal to witness the use of drugs, but it is illegal to possess illegal drugs.

In other words, though no law supports such a suggestion, DOJ is now arguing that journalists who receive classified information are themselves criminals, just like those who possess hash.

Someone’s smoking something awful at DOJ.

Did DOJ Ratchet Up the Charges Against Kiriakou Because of Poland Investigation?

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When John Kiriakou was first charged with espionage, he was charged with four counts:

  • Leaking Covert Officer A’s identity under IIPA section B
  • Leaking Deuce Martinez’ identity under defense information clause of Espionage Act
  • Leaking Deuce Martinez’ tie to the torture program under defense information clause of Espionage Act
  • Lying to the CIA’s Publication Review Board; falsifying a material fact

In today’s indictment, Kiriakou was charged with five counts:

  • Leaking Covert Officer A’s identity under IIPA section A
  • Leaking Covert Officer A’s tie to the torture program under defense information clause of Espionage Act
  • Leaking Deuce Martinez’ identity under defense information clause of Espionage Act
  • Leaking Deuce Martinez’ tie to the torture program under defense information clause of Espionage Act
  • Lying to the CIA’s Publication Review Board; falsifying a material fact

Not only did they ratchet up the IIPA violation to one that carries a 10 year, as opposed to a 5 year, penalty, but they also added a violation of the Espionage Act tied to Covert Officer A’s ties to the torture program.

This is likely designed to punish Kiriakou for refusing to accept their plea deal.

But I also wonder whether it’s not a response to the reports that Poland will file charges against the officials who helped the CIA set up its torture prison in that country.

According to the complaint, the torture investigators never did anything with Covert Officer A’s identity (which they got via the journalist to whom Kiriakou provided the information). The FBI officer who wrote the affidavit wrote,

Neither Journalist A nor any other journalist to my knowledge has published the name of Covert Officer A.

The IIPA violation doesn’t require any intent of damage. Intentionally leaking the identity is enough. But the Espionage charge does:

Whoever, lawfully having possession of, access to, control, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; [my emphasis]

That is, to make the Espionage charge tied to Covert Officer A stick, they’re going to have to prove that Kiriakou had reason to know that leaking his name (to a journalist, but ultimately, to lawyers for people who had been tortured by Covert Officer A) “could be used to the injury of the United States.”

Are they really preparing to argue that helping men mount a fair defense in court injures the United States? That ensuring our legal system works the way it is supposed to work, rather than the way the kangaroo courts at Gitmo have been set up, hurts this country?

Or, alternately, are they going to build their “injury” theory on the Polish tie–on Deuce Martinez’ and (possibly) Covert Officer A’s involvement on Polish soil (if he was, in fact, there)?

They may well just be punishing Kiriakou for putting them to the trouble of involving journalists and CIPA and exposure of their torture program. But I wouldn’t be surprised if they pointed to Poland’s disinterest in cooperating in any more illegal covert activities with us as the “injury” that Kiriakou’s alleged leaks have cause.

Did Covert Officer A–Whose Identity John Kiriakou Allegedly Leaked–Leave the CIA?

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DOJ has apparently failed in its efforts to get John Kiriakou to agree to a plea deal; they’ve just indicted him.

Interestingly, the indictment describes Covert Officer A–whose identity Kiriakou allegedly leaked–differently than the complaint did. The complaint described him this way:

Covert Officer A is currently a covert CIA employee whose relationship to the CIA has been classified for more than two decades.

Here’s how the indictment describes him:

Covert Officer A was a covert CIA employee whose association with the CIA has been classified for more than two decades. Covert Office A was a covert agent as defined at Title 50, United States Code, Section 426(4), and the United States Government was taking affirmative measures to conceal Covert Officer A’s intelligence relationship to the United States. The association of Covert Officer A with the [Rendition, Detention, and Interrogation] Program was also classified and constituted national defense information. [my emphasis]

With the exception of the bolded passage, the information on Covert Officer A’s relationship to the CIA is now all past tense.

Which suggests several possibilities: That Covert Officer A’s status has been changed to permit this prosecution; Covert Officer A is no longer covert (though is still classified); Covert Officer A has left the CIA; or that Covert Officer A is no longer alive. Update: DOJ says this is the way they normally write their indictments.

Alternately (given the way the CIA screws up leak investigations) maybe they were giving Pat Fitzgerald bad information during the investigation. Nahh! The CIA wouldn’t screw up another leak prosecution, would they?

Update: Compare how they describe Covert Officer A with how they describe Deuce Martinez–whose employment, but not identity–is described in the past tense.

Officer B was employed by the CIA as an analyst assigned to the CIA Counterterrorism Center. Though the fact that the CIA employed Officer B was not itself classified, the associations of Officer B with the RDI Program and with the Abu Zubaydah operation were classified and constituted national defense information.

Update: The DOJ announcement says Covert Officer A “remains covert.”