Pre-Coffee Deep Thought

If Emmett Sullivan, the judge that is considering vacating Toobz Stevens’ conviction because the government withheld critical information also demands the government free Aymen Saeed Batarfi, a Gitmo detainee from whom the government withheld exonerating information…

"To hide relevant and exculpatory evidence from counsel and from the court under any circumstances, particularly here where there is no other means to discover this information and where the stakes are so very high . . . is fundamentally unjust, outrageous and will not be tolerated," Sullivan said, according to a transcript of the hearing.

"How can this court have any confidence whatsoever in the United States government to comply with its obligations and to be truthful to the court?"


"The sanction is going to be high," he said. "I’ll tell you quite frankly if I have to start incarcerating people to get my point across I’m going to start at the top."

…Does that mean Sarah Palin will call for a special election to let Batarfi run for elected office? Or, at the very least, will Palin allow Batarfi to settle in Alaska, since Palin is so convinced that prosecutorial misconduct equates to innocence on the part of the accused?  

50 replies
  1. BoxTurtle says:

    I hate to say it, but vacating Stevens conviction is probably the correct thing to do. The remedies for the government misconduct at trial were pretty borderline, and I think an appeal would go Stevens way.

    But I don’t think he should get a pass on a retrial just because he’s old and been a senator for a long time had many years of selfless public service. Yes, I know I’m heartless. But it may be that the prosecution fouled things so thoroughly that a fair trial is no longer possible. If a judge says so, so be it.

    As for Batarfi, I suspect we’ll now see that even though the law is the same for a senator and a Muslim the application is much different.

    Boxturtle (Palin is so full of crap if you gave her a laxative she’d melt)

    P.S. HEY MODS! The spellcheck button is giving me a 404 again.

    • bmaz says:

      The government moved to dismiss; their little diatribe about “probably not going to retry him” is complete bullshit, he has a Constitutional double jeopardy protection against that.

  2. klynn says:

    Hey EW, if this is pre-coffee…WOW! Post coffee must write your books!

    Some news for you below.

  3. Mary says:

    3 – remember, Obama keeps promising in his speeches that he is NOT going to give Constitutional protections to the terrorist suspects. God giveth and God taketh away.

  4. Mary says:

    Just a couple of other things to throw in – here seems as good a place as any.

    The British via Scotland (I can’t help it, I like that the AG’s name invokes a separate kingdom) have made a torture referral to Scotland Yard. That referral, though, has not been limited to the Binyam Mohamed case. Instead, they have taken information compiled by cagedprisoners and other sources and made a referral on TWENTY NINE cases.

    Compiled over four years by lawyers acting for British monitoring group Cageprisoner, the dossier corroborates claims that Britain was involved in a systematic international torture policy, with one case predating the 11 September attacks, going back as far as 1999. Six countries are named as being complicit with Britain, including Jordan, Egypt and Syria. Four cases relate to Kenya and the most – seven – involve Pakistan.

    Oh yeah- Pakistan, where Chaudhry is now back on the bench. (btw – Chaudhry has also ordered an investigation of the Taliban flogging of the teenage girl – not exactly a shy and retiring justice). Is Pakistan going to cooperate before, after or during its meltdown, or never. It would be kind of a scarey thing to have to rely on our intel sources supposedly working in Pakistan to help prevent a meltdown also having some vested personal interests in keeping criminal cases quiet and having to wonder what they pick as their higher personal priority, wouldn’t it. Good thing we won’t have that on our plate.

    The seventh country in the reference above would seem to be Morocco, although there is also reference to the United Arab Emirates. I’m wondering, though, how they address Afghanistan and Iraq (do they treat them as separate nations or US branches) and the bigger elephant in the room, the US.

    A spokesman for Cageprisoner said Scotland would also be asked to investigate alleged MI5 complicity in the questioning of men who claim to have been tortured, the majority while in US custody abroad.

    Back to Batarfi – apparently if and when they get around to releasing him, Obama’s administration thinks no one is entitled to know where they release him. Kind of an Obama thumbs up to the approach of dumping Khalid el-Masri in a foreign country with no papers in the middle of nowhere. It’s like the US gov has their own little internal reality game of Survivor, only they get to kidnap real people from around the world and play with them.

    This BBC article and this kos diary by Valtin highlight the “secret destination” approach Gov is taking for Batarfi.

    The US justice department has agreed to transfer a Yemeni inmate from America’s controversial Guantanamo Bay prison.

    But it declined to provide details of where Ayman Saeed Batarfi would go.

    Sullivan may have something to say on that – or not. Bitter snark about el-Masri aside (althought the failure of the US judicial system on that case is as complete as anything I’ve ever seen) the Obama approach on Batarfi does echo the Bush approach on Errachidi. He was the bipolar London chef who was detained in Pakistan and handed over to the US for $$ based on some guy (who got the $$) saying that he had been leading an al-Qaeda training camp. After years of abuse at GITMO, including lots of isolation (bc he tended to react as an Englishman first and demand rights and better treatment which tended to piss off his kidnappers) his lawyers were finally able to get access to the super secret info on him and figure out that he was accused of being at an al-Qaeda training camp. In no time flat they had hard evidence that he was making souffles in Mayfair when he was supposedly camping out in the hills of Afghanistan.

    After that was made very clear, the US grudgingly cleared him of charges, but they didn’t send him back to London, where his family (from whom he was COMPLETELY disappeared until the GITMO names came out) was waiting. Instead, they cut a secret deal with Morocco to ship him there. Remember Morocco – the place where, according to the US own files and records that it won’t hand over in Mohamed’s case, prisoners go to be tortured? So who authorized that? Will we ever know? What was the “negotiation” on torture? [This, btw, is the area I wish Rachel had asked Powell about – did he as Sec of State negotiate wtih Egypt and Syria et al on the transfers of people like al-Libi and Maher Arar to them and insure that torture would not be used?]

    In any event, after “clearing” Errachidi, with his family waiting for him, the US ships him off to Morocco. This link doesn’t go into it much, but at the time there was a lot of reporting as he was first “lost” for a bit until the pressure from his lawyers elicited the Moroccan information. They then worked to get him released from Morocco and reunited with his family.

    A London chef held for four years in Guantanamo Bay on the basis of false information from an anonymous informant has been reunited with his family, The Times has learnt.

    He was taken to a Moroccan prison and appeared in court in Rabat on Wednesday on terrorist charges. But local human-rights lawyers, instructed by the British charity Reprieve, argued successfully for the allegations to be dropped and secured his release.

    This was also a story that got almost no US coverage. [Although of more recent date, apparently it was conversations with Errachidi in particular that were an important part of the Islamic conversion of the GITMO guard referenced in the more recent article – I can’t remember where it was, Newsweek maybe?]

    Clive Stafford Smith, legal director of Reprieve and Mr Errachidi’s lawyer, said: “Ahmed’s case is an exhibit of everything that is wrong with Guantanamo Bay. The US military relied on false intelligence, saying Ahmed was the ‘General’ of al-Qaeda when he was a London chef.

    Now that same Reprieve lawyer, Clive Stafford Smith, who made the US look – well, at best lets say ridiculous, is now facing charges from the Obama administration because of the letter he sent to Obama about Binyam Mohamed.

    Kind of ruins all that ‘deniability’ stuff when you get letters detailing the torture.

    Judge Thomas Hogan has ordered Smith and his colleague Ahmed Ghappour to appear in his court on May 11 and explain why they should not be held in contempt of court — and perhaps jailed for up to six months — for their alleged transgression.

    “What is particularly irksome about this is the issue involved,” Smith wrote in an e-mail this morning. “The government is covering up evidence of torture against Binyam Mohamed, while accusing us of violating a rule in (bizarrely) NOT revealing that evidence.” He added: “What this is really all about is official embarrassment at looking bad.”

    Don’t worry – mabye Obama will drop the charges and just … ship Stafford Smith off to Morocco.

    • skdadl says:

      I can hardly believe they are going to try to do that to Stafford Smith. We are through the looking-glass, on to Winston Smith territory.

      Back at the ranch here, we have a government minister who is “of the opinion” that he can defy the Charter and the UN Declaration (on the subject of the absolute right of repatriation — the case of Mr Abdelrazik, lost in limbo in Sudan, declared innocent by the RCMP, CSIS, and his Sudanese torturers). And the minister is doing that out of concern for the “national security” of another country. Three guesses which other country that would be.

  5. Mary says:

    6 – yes. It’s the kind of threat that was being made by the chief judge of the FISA court when the DOJ suddenly found religion

  6. Mary says:

    Meanwhile, the government of Austria and cleared Chinese Uighurs make the same argument in different venues. The Uighurs are appealing to the Sup Ct the ruling by a court of appeals that, despite the Dist Court finding that they had NEVER BEEN enemy combatants, much less illegal enemy combatants, the Dist Court could not order their release in the US. At the same time, Austria is asking why the United States won’t take its innocent detainees itself.

    “If the detainees are no longer dangerous, why don’t they stay in the U.S.,” Fekter told the meeting.

    What a mess. And still Obama will not stand up and say outright that we had innocent people at GITMO and we have responsiblities because we kidnapped, disappeared and abused innocent people without habeas access for years.

  7. Mary says:

    10 – that’s pretty much the same story/judge (Sullivan) that EW linked, but it sure does open the door for other cases and Judges. Also would be interesting to know whether the tribunals had that info.

    From both links (yours and EW’s) the part that I find bizarre is this:

    “Indeed, (the government’s) prior disclosure of information undermining the credibility of the detainee-witness was much more explicit and likely to be far more helpful to the petitioner’s case than the medical record at issue” said Justice Department spokesman Dean Boyd in response to questions about the matter.

    Gov is basically arguing that withholding the medical info about the witness being a crazy guy with an antisocial disorder who doesn’t give a rats ass about right v. wrong etc. — Gov is arguing that withholding this info is no big deal because they had already given OTHER information to defense counsel that so undermined the credibility of the witness that … well, ya know, it’s not like any sane person would believe him anyway Think about that. Boyd is saying that it’s no like there was any damage, bc they had already given defense enough to crater the guy as a witness anyway.


  8. Peterr says:

    Sullivan isn’t done with the DOJ, it appears:

    A federal judge has dismissed corruption charges against former Sen. Ted Stevens and opened a criminal investigation into prosecutors who mishandled the case.

    U.S. District Judge Emmet Sullivan said the misconduct was the most serious he has ever seen in nearly 25 years on the bench. He appointed attorney Henry Schulke (Shul-KEE) as special prosecutor to investigate the Justice Department team for possible criminal contempt charges.

    • freepatriot says:

      U.S. District Judge Emmet Sullivan said the misconduct was the most serious he has ever seen in nearly 25 years on the bench

      so why is nobody speculating that this case was FUCKED UP ON PURPOSE ???

      we KNOW that the DOJ was fully corrupted by REPUGLITARDS

      and a SLAM DUNK case was botched BY REPUGLITARDS

      and the case was against A REPUGLITARD

      can anybody else out there add ???

      how about logical deduction

      come on people

      we can do this …

    • Hmmm says:

      …U.S. District Judge Emmet Sullivan said the [Stevens case] misconduct was the most serious he has ever seen in nearly 25 years on the bench….

      Judge Sullivan, there’s someone claiming to be a “Governor Seligman” on line 3. Says he has an equal protection issue to discuss with you. You wanna take that?

  9. Mary says:

    I see Peterr has the link, but that’s interesting stuff.

    Related – this info/reaction about the insane witness. I seem to remember this material witness warrant sworn out for a US citizen on US soil that used a crazy guy as the source for the FBI affidavit …

    I know nothing about Henry Schulke, but I guess it’s too much to hope for that he’d have a Tammy Faye Bakeresque press conf al la the DOJ’s Blagojevich presser, upping the ante on which founding fathers are rolling in which graves and whether or not the corruption of a whole institution that was instituted to protect justice and has instead become an institute to cover up internal crimes and misfeasance is really more or less shocking than a Gov selling off a Senate seat.

    Too bad it won’t happen.

    • bmaz says:

      Keep in mind the nature of the “special prosecutor” this is through the court though. Don’t think you will find any wide ranging scope or public histrionics.

      • WilliamOckham says:

        Here’s what I found out about Schulke in a 5 minute google adventure:

        special counsel to the D.C. Commission on Judicial Disabilities and Tenure

        former military judge

        and his law firm bio:

        Henry F. Schuelke, III ([email protected]). Hank Schuelke received his undergraduate degree from St. Peter’s College and his law degree from Villanova University. Following his graduation from law school, Mr. Schuelke served for four years in the Judge Advocate General’s Corps, U.S. Army, including three years as a Military Judge in the U.S. Army Judiciary. Mr. Schuelke then served for seven years as an Assistant United States Attorney for the District of Columbia, including three years as Executive Assistant United States Attorney. Mr. Schuelke entered private practice in 1979. Mr. Schuelke has served as General Counsel to The Autism Society of America, 1980-1990; Special Counsel to the U.S. Senate Committee on Foreign Relations, 1980-1981; Special Counsel to the U.S. Senate Select Committee on Ethics, 1989-1991; and as a member of the Committee on Grievances, U.S. District Court for the District of Columbia, 1989-1995; he currently serves as Special Counsel to the District of Columbia Commission on Judicial Disabilities and Tenure. Mr. Schuelke is a Fellow of the American College of Trial Lawyers. He is listed in The Best Lawyers in America®.

  10. earlofhuntingdon says:

    Judge Sullivan seems angry and willing to do something about it. About bloody time.

    This Court wants to ensure that his case does not yet again return to a state of limbo or that he linger in Guantanamo while the government conduct its, in its words, quote, “diplomatic process.”…

    I don’t take very lightly a suggestion at the eleventh hour, especially after this man has been detained without due process for seven years, that this Court’s effort to afford him his fair and appropriate day in court are for naught….

    Guantanamo…is a travesty. It ranks up there with the determent [internment] of Japanese American citizens years ago. It’s a horror story in the American system of jurisprudence, and quite frankly, I’m not going to buy into an extended indefinite delay of this man’s stay at Guantanamo, or anyone else on my calendar.

  11. Mary says:

    17 – yeah, I know. That’s why I ended with a, “too bad it won’t happen” It’s just kind of had me peeved, that Blagojevich presser, after the Padilla presser years back, and all by a dept that is itself so riddled with torture support and corruption that it pretty much only has people with no reverse peristalsis capacity left to work for it.

  12. Mary says:

    16 – gee, umm, Iceland?

    No one who is a signatory to the Torture Conventions really wants to deal with the torture claims these guys have, do they?

    • skdadl says:

      All I can think of some of them is that somewhere in their heads (and in our cultures), they have confused patriotism with morality and law. Thus, morality and law come to mean torture.

      That only explains the simpletons, though, the ones who believe the propaganda. The cynics who are running the show — I think they just plain don’t like our laws.

      • earlofhuntingdon says:

        See David Brooks’ column today for just that sort of confusion, promoted in his usual faux intellectual style:

        [P]eople make judgments about harm and fairness, but they still struggle to explain the feelings of awe, transcendence, patriotism, joy and self-sacrifice, which are not ancillary to most people’s moral experiences, but central.

        • freepatriot says:

          nobody tell BoBo that it is pronounced “the PRIMORDIAL ooze”

          I wouldn’t want to be worshiping the same ooze as that nutball

          an I never told anybody about the “Wave Theory” part of that, so my religion is safe …

        • skdadl says:

          Aw, gosh: I just got edited. Correctly.

          EW is really good at accepting this sort of thing gracefully. Me? I go now to throw a tantrum.

  13. Mary says:

    OT but related

    Peru’s former President has been convicted of human rights violations.

    Former Peruvian President Alberto Fujimori was convicted of human rights crimes on Tuesday, the first time a democratically elected Latin American president was found guilty in his own country of rights abuses.

    A three-judge panel convicted him for ordering a military death squad to carry out two massacres that killed 25 people during his 1990-2000 rule, when he was battling guerrillas.

    Fujimori’s popularity soared when he defeated the brutal Shining Path guerrillas, tamed economic chaos, and freed dozens of hostages taken by the Tupac Amaru insurgency during a siege of the Japanese ambassador’s house in Lima.

    But a corruption scandal involving his spy chief, Vladimiro Montesinos, sank his government in 2000. Fujimori fled to exile in Japan, the country where his parents were born. He was later arrested in Chile and extradited to Peru.

  14. freepatriot says:

    off-topic good news

    norm coleman’s senate career is MORE CRITICALLY DEAD today than it was yesterday

    whoo HOO

    cue the fat lady …

    • bobschacht says:

      Golly– you mean there are degrees of being critically dead?
      Is there a stage where you’re just a zombie?

      Inquiring minds want to know.

      Bob in HI

  15. runfastandwin says:

    They screwed this up on purpose, and the evidence was still so overwhleming that he got convicted. The way I understand it, Allen’s testimony on the affadavit contradicted his testimony in court. I don’t see how that is not fixable in a retrial. I think the fix is in…

    • bmaz says:

      Really??? And your evidence of that consists of what exactly? And your decades long experience in prosecutorial misconduct allegations tells you this does it? Because I been around the block a few times and I don’t see diddly squat that supports that position. What I have seen, however, are a ton of cases where dirty undisciplined prosecutors, improperly regulated and supervised, pulled crap like this trying to win at all cost in spite of all ethical constraints, and that is exactly the pattern that presents itself here.

  16. freepatriot says:

    now TPM is reporting that there will be a criminal investigation of the prosecutors in the stevens case

    wanna bet they botch that one too ???


    I’ll give odds …

  17. freepatriot says:


    off-topic, in the “I’m psychic, or psychotic, or something like that” department

    I just saw a personal transportation POD on cnn

    an I think it’s made by GM

    still “drivable” though

    but we can fix that

    GPS driven transportation, here we come

    that old crystal bong is NEVER wrong

    (still cloudy right now though …)

    • bobschacht says:

      I think what you saw was a joint enterprise between GM and Segway. Its a two-wheeler that is battery powered, and can go up to 35 mph. The pod you saw only had the frame bars on the sides, and can turn on a dime. Basically like a golf cart but with a smaller wheel base.

      Bob in HI

      • freepatriot says:

        yep, it’s a segway

        so it ain’t gonna work here in Amurika

        george bush is smarter than half the fookin country, and he damn near killed himself on one of those things

        in other news, pretzel related deaths are WAAAAY up this year …


  18. Stephen says:

    Sorry about the OT, has anyone read Chris Hedges’s article at Truthdig- “Resist or Become Serfs”? My retinas are still burning.

  19. JohnLopresti says:

    Dean linked to a whistleblower redacted complaint…”The allegations included claims that a female agent on the case had had an improper relationship with the government’s star witness”. Reading the AKgovernor’s hype, I could imagine that Palin kept the campaign minder, and might have brought onboard a speechwriter looking for employment after the transition of administrations in WashingtonDC. Palin’s plea for a special election sounds like a test for the illinformed. I wonder what the Republican caucus in the state legislature opines concerning her idea.

  20. Mary says:

    Here is a link to the actual transcript of the hearing in front of Judge Sullivan.

    Wow. Apparently Batarfi is pretty ill and that makes Sullivan even touchier on the whole thing. Every time the Judge goes on about Gov trying to cancel the adjudication on the merits at the 11th hour, Gov channels Uriah Heep and says -hey, we all agree that Batarfi should be released from GITMO (and we are trying really hard through diplomatic channels to make sure that happens).

    Mr. Warden …and everybody here I think agrees that he should get
    out of Guantanamo –
    THE COURT: Absolutely.
    MR. WARDEN: — as soon as possible

    MR. WARDEN: I understand everyone agrees he should be


    But when the Judge says – okthnxsordered – Gov says, oh no no no no no, we didn’t mean there should be a habeas release order entered, after all, while “everyone agrees” he “should” get out,

    MR. WARDEN: Well, we’re the process by which the –
    we’re not conceding that there’s no lawful basis here to detain

    To say the Judge gets peeved if an understatement.

    Some things of note IMO:

    Judge Sullivan does indicate that if he can’t order a release to the US per the existing Cir Court ruling (that is being appealed – btw, the refernce in the transcript to Weavers should be Uighurs) that doesn’t mean he can’t do other things in connection with his habeas ruling, if he makes it (or in connection with the concession by gov that Batarfi should not longer be held as an enemy combatant). He comes up with something that I think is pretty good for off the cuff – that maybe he can order changes in the circumstances of detention pending ultimate release. That’s pretty damn good imo – he’s ordered a response as to why he can or can’t.

    He also has made it clear he wants someone with authority (and who won’t want to be placed in contempt or suffer Welch’s current fate) to come and explain to him, face to face, EXACTLY how it is that the exculpatory information on mental illness didn’t get produced earlier and why gov then took the position that product was “inadvertent” even though it was court ordered. And he orders them to give notice to all the other Judges re: their info on this witness as well.

    It also looks pretty likely that the witness or a cumulative witness in this may be Yasin Muhammed Basardh or that the facts regarding the witness are pretty integrally related to Basardh.

    Gov tries to make the argument before Judge Sullivan that their failure to produce the “he’s an anti-social crazy guy” info on witness “ISN Blank” isn’t harmful bc they gave other info that impacted the witness’ credibility to defense counsel (no, not 7 years ago, or 6, or 5, or …but eventually). Judge Sullivan smacks that down and say no way, this was NOT cumulative, it was a “smoking gun.” Later he asks Gov to also brief to him whether or not any matters in a sealed order by Judge Huvelle have any import. Which is what takes you to Basardh (who apparently is Gov’s Star Witness in SIXTY or so cases).

    Acting on the basis of secret documents and a closed-door hearing, a federal judge on Wednesday ruled that a Yemeni detainee at Guantanamo Bay — identified in news accounts as the government’s “star witness” against other detainees — is legally entitled to be released from captivity. In a one-page order, found here, U.S. District Judge Ellen Segal Huvelle granted the habeas plea of Yasin Muhammed Basardh, 33.

    That story and its revelations stirred a storm of controversy among the judges in the D.C. District Court, who are handling some 200 detainees’ cases. The story indicated that some of Basardh’s military handlers had grown uncertain about the reliability of his information.

    Apparently the issue of sealing may have been partly at the request of Basardh’s lawyers. The stuff reported is that Gov has said Basardh was tight wtih Bin Laden and hung with him at Tora Bora. Now you have to wonder if maybe the crazy guy found a way to keep from being tortured by making himself sound very important and then offering up “evidence” about pretty much anyone gov wanted? Or not, who knows. But you also have to wonder if anyone will ever get to know. Sullivan kind of indicates he thinks Huvelle’s order in the case he is obliquely referencing is likely to be declasssified – may not be about Basardh, but that’s the way I’d bet for now.

    Ah yes, Harvard’s Cap’n Jack, so concerned that if detainees got to go to court they would become “Scheherazades” and it would just lose the GWOT if we let them come an lie to the courts. I guess he’s right – much better to let them lie to tribunals who then use the info to go pick up other people to disappear into abuse. Harvard be so lucky.

    • bmaz says:

      Corollary: If the government can’t lie in court with impunity we also lose the GWOT.

      It’s all of the same moldy cloth.

  21. Mary says:

    48 – LOL. I was thinking something very similar. I don’t guess Sullivan will order “Warden” (really – could there be any more cosmic irony than that name?) or whatever other “high ranking” DOJ officer that appears to dance the dance of the seven veils to keep from having sanctions, but it’s a thought.

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