Panetta’s Parsings

As bmaz reported yesterday, in addition to the five current and former CIA officers whom Judge Lamberth has said were invoking state secrets to protect something that wasn’t secret anymore, Lamberth also criticized a declaration he received from Leon Panetta invoking state secrets anew. He describes Panetta’s declaration this way:

Director Panetta’s unclassified declaration appears to significantly conflict with his classified declaration. His unclassified declaration states that: "Plaintiff has provided a declaration in which he stated that the alleged wiretap at issue in this case was allegedly the result of an eavesdropping transmitter placed under the coffee table located in his residence in Burma… To the extent that this is his allegation, he is permitted to proceed with discovery to determine whether such a transmitter was used." (Panetta Unclassified Decl at 9) Panetta later states, however, that the plaintiff cannot inquire into information about the "U.S. Government’s capabilities to conduct electronic surveillance." id. If a method of intelligence is unclassified and publicly available, it is not immediately apparent why it suddenly becomes a state secret to even argue that it could be used by the U.S. Government. Moveover, the plaintiff makes a credible argument not only that the device is publicly known, but that the fact that the government uses this type of device is publicly available, as this type of device is on display at the Spy Museum in Washington, D.C. Indeed, Panetta’s classified, ex parte declaration significantly conflicts with the unclassified declaration and appears to acknowledge that the plaintiff can present evidence as to the coffee table eavesdropping transmitter, even if it is used by the U.S. Government. Panetta states: "Plaintiff has alleged that the defendants used an eavesdropping transmitter placed under the coffee table located in his residence in Burma. He has also stated that these types of transmitters are publicly available and on display at the Spy Museum in Washington, D.C. To the extent that the theory of his case is that the defendants conducted the alleged surveillance using purely unclassified, publicly available methods, I do not assert the state secrets or statutory privileges. To the extent Plaintiff’s discovery attempts to sweep more broadly, and to inquire about other intelligence capabilities … such discovery cannot proceed …." (Panetta Classified Decl. 21) (citations omitted and emphasis added). In other words, Panetta’s classified declaration appears to acknowledge that an eavesdropping transmitter of the type alleged by Horn is not a state secret even if used by the U.S. Government. [my emphasis]

I’m still looking for Panetta’s declaration here (at least the unclassified one–love that Lamberth quoted from the classified one). But as I understand it, the issue has as much to do with Panetta’s mushy line about whether the government really is, or is not, declaring state secrets (even as part of a state secrets declaration). He seems to be trying to say Horn can’t have discovery on any surveillance–such as telecom surveillance–outside of the transmitter Horn says was placed on his coffee table. But at the same time, Panetta appears to be trying to stretch that to extend to whether in this case the CIA put a transmitter on his coffee table, even though the government’s use of such things is widely known.

Just months into the job, and Panetta already has a problem with the credibility of his statements to the Courts.

I focus on this because–unlike almost everyone else named by Lamberth in this case (save Eatinger, who was one of the guys who told Jose Rodriguez he could destroy the torture tapes)–Panetta’s declarations are being actively assessed by other Courts. Take the ACLU FOIA suit to get the documents related to the destroyed torture tapes. As I wrote last month, even Panetta’s unclassified declaration in that suit is bogus on its face

Well, that didn’t take long, for a Director of Central Intelligence to totally lose his credibility in the servitude of the institution. What has it been? Three, four months?

I’ll have more to say about Panetta’s declaration in the ACLU FOIA case tomorrow.  But for now, a little unsolicited advice for the spook-in-chief.

When you say, 

I also want to emphasize that my determinations expressed above, and in my classified declaration, are in no way driven by a desire to prevent embarrassment for the U.S. Government or the CIA, or to suppress evidence of unlawful conduct,

Yet the entire world knows–and the CIA has itself acknowledged–that the materials in question do, in fact, show evidence of unlawful conduct, and when you sort of kind of pretend that no one else knows what they all know–that the materials show evidence of unlawful conduct…

Then you look like a fool. 

A chump.

Like George Tenet, maybe, when he boasted of "slam dunk."

And then when you go on to say,

As the Court knows, some of the operational documents currently at issue contain descriptions of EITs being applied during specific overseas interrogations. These descriptions, however, are EITs as applied in actual operations, and are of qualitatively different nature than the EIT descriptions in the abstract contained in the OLC memoranda.

Then you’re just hoping we’re all bigger idiots than we really are.

Let me say this plainly. According to the CIA–the CIA itself–there’s a reason why the interrogations don’t resemble the "EIT descriptions in the abstract contained in the OLC memoranda." That’s because some cowboy probably named James Mitchell who was getting rich off of torture thought things would be more poignant–yes, the fucker actually said "poignant"–if he drowned Abu Zubaydah in gallons of water rather than sprinkling him like a daisy. There’s a reason why the descriptions of torture as it was applied is such a problem–and yes, is evidence of unlawful conduct.  And that’s because we know–we all know!!!!–that the torture began before the memos authorized it, and the torture exceeded what few guidelines John Yoo placed on it.

So don’t give me this crap about not trying to avoid embarrassment–unless you start admitting how damning this shit is. 

We know you’re trying to hide the evidence of criminal torture. Insisting, over and over, under oath, that that’s not what you’re doing isn’t convincing anyone.

The proof that the government was claiming state secrets over something that was embarrassing, but not secret, is going to make a lot of judges scrutinize the government’s state secrets invocations more closely. Lamberth’s use of a CIPA-like process going forward in this case will likely make it easier for other District Judges to advocate such an approach for their cases (think Jeppesen, in particular). 

But Lamberth’s public smackdown of Leon Panetta is going to affect cases that don’t have to do with state secrets, as well. 

This is the problem with all the bogus claims left over from the Bush Administration the Obama Administration has decided to support. They’re going to very quickly destroy any credibility that people like Leon Panetta has with the Courts.

Or rather, they already have.

image_print
  1. klynn says:

    The proof that the government was claiming state secrets over something that was embarrassing, but not secret, is going to make a lot of judges scrutinize the government’s state secrets invocations more closely. Lamberth’s use of a CIPA-like process going forward in this case will likely make it easier for other District Judges to advocate such an approach for their cases (think Jeppesen, in particular).

    But Lamberth’s public smackdown of Leon Panetta is going to affect cases that don’t have to do with state secrets, as well.

    This is the problem with all the bogus claims left over from the Bush Administration the Obama Administration has decided to support. They’re going to very quickly destroy any credibility that people like Leon Panetta has with the Courts.

    Or rather, they already have.

    (my bold)

    Now, if I were a judge, I would be thinking, “Leon, Leon, you are very bright and articulate. What the heck are you doing? What is making you destroy your credibility? You, a man, who is quite perceptive about the flow of power, understands the rule of law, and has quite a history of service to you country at the highest level of government. Please tell. Now.”

  2. bmaz says:

    I wonder if this kerfuffle in front of Lamberth could serve as a basis for a request to make public the “correction” in al-Haramain and the consolidated cases.

  3. Leen says:

    Have not listened to this one yet…but sure appreciate Bruce Fein’s perspectives
    Bruce Fein, associate deputy attorney general under Ronald Reagan, discusses restoring the rule of law to the executive branch of government, the unprosecuted torture and FISA violations that are piling up, Obama’s impeachable neglect of his duty to faithfully execute the law and why a presidential pardon and not selectively ignoring the law is the way to deal with politically sensitive crimes.
    http://antiwar.com/radio/2009/07/01/bruce-fein-2/

  4. WilliamOckham says:

    I’ll repeat my prior assertion about the state secrets privilege. Every single time that it has been invoked, it has been invoked improperly. Every time, no exceptions. From Reynolds to al-Haramain and every case in between. It is only invoked to protect the government or its agents from embarrassment and exposure of criminality.

  5. Ugh6 says:

    Can we have at least one judge who is willing to hold the gov’t in contempt and throw the DOJ/CIA attorneys in jail?

  6. fatster says:

    TUESDAY JULY 21, 2009 06:22 EDT
    First steps taken to implement preventive detention, military commissions
    Glenn Greenwald

    “A task force appointed by President Obama to issue recommendations on how to close Guantanamo announced yesterday it will miss its deadline and instead needs a six-month extension, potentially jeopardizing Obama’s promise to close Guantanamo within a year.  The announcement was made in a briefing given by four leading Obama officials, where the condition of the briefing was that none of the officials could be named (why not?) and all media outlets agreed to this condition (why?).  

    “Though the Task Force’s final recommendations were delayed, it did release an interim report (.pdf) which — true to Obama’s prior pledges — envisions an optional, three-tiered “system of justice” for imprisoning accused Terrorists, to be determined by the Obama administration in each case:  (1) real trials in real courts for some; (2) military commissions for others; and (3) indefinite detention with no charges for the rest.  This memo is the first step towards institutionalizing both a new scheme of preventive detention and Obama’s version of military commissions.”

    Link.

  7. FormerFed says:

    Panetta is co-opted, just like Obama has been co-opted by the generals on Afghanistan and Iraq. These people are very good at co-opting folks – they have done it for years. You know – pixie dust like “protecting sources”, “would put the troops in danger”, etc.

    I think a White House Commission is the only way to find out the truth. As in a “Senator Whitehouse” Commission ala the Church Commission.

    • TarheelDem says:

      And how did that Church Commission reform the Agency? You had a bunch of rogue agents and ex-agents colluding with George H.W. Bush and Bill Casey to sandbag Carter’s negotiations to release the hostages from Iran.

      • FormerFed says:

        You can never “reform” an intelligence agency. The best thing you can do is to give it an airing out every few years.

        • TarheelDem says:

          Good point.

          This one is overdue for airing out, but the time to do that must be chosen strategically. Payback can last for decades.

          Frankly, I think we’re overdue for more than an airing out; we need a fundamental restructuring of our national security apparatus on a scale as massive as in 1947. The Cold War is over; Cold War thinking in the national security apparatus persists and looks for a new Soviet Union either in Russia or elsewhere.

          This is an issue much broader than one that a Panetta or an Obama by themselves can fix. Are you listening Sen. Levin? Sen. Reed? Sen. Webb? Sen. McCaskill? Rep. Sestak?

          • FormerFed says:

            I agree that National Security could use an overall relook and restructuring to fit the 21th century.

            However, I don’t think this will happen until we get out of Iraq and Afghanistan and put to bed this idea that we have a “War on Terrorism”. And I’m not sure how long it will take to get the GWOT concept out of the national consciousness. Terrorism is as old as mankind and to hold it up as something special or different after 9/11 as the Bushies did has done immeasurable harm to the Nation.

  8. earlofhuntingdon says:

    I just have to imagine that senior federal judges across the country are taking note and that the full faith and credit of the US government’s position in all its cases is looking rather like the original stars and stripes from Francis Scott Key’s poem. Even or perhaps especially Republican administration appointed judges will be unhappy. These guys really have “trashed the place”.

    Imagine the delays caused by adhering to detailed official procedures, shortcuts abandoned, because of this. Imagine the redone homework, the repeated filings and the lost and appealed arguments, the extra effort for jailers, investigators and US marshalls because the federal courts can no longer accept the word of US attorneys and government officials.

    The US Attorney scandal was a symptom, not the disease. It’s not been contained, it’s spreading. Imagine the cost – and not just to taxpayers.

    • JimWhite says:

      I agree with your observation and just put up a diary with my thoughts.

      When the government lies to the government, we no longer have a government. Instead, we have tyranny.

  9. TarheelDem says:

    As I argued in bmaz’s post, Panetta’s credibility problem is not with the courts, that is, he has to be unconcerned about what the courts think. His credibility problem is with CIA insiders who distrust whether he will go to the mat for the Agency. Until they are willing to take direction from him, the tail will be wagging the dog.

    • earlofhuntingdon says:

      Every agency head should be willing to go to the mat for his people. S/he can take individuals or departments to task behind the woodshed, but in public and in budget and cabinet disputes, they’re the best. That’s called leadership.

      It doesn’t mean they have the last word, or that they should always win or keep their jobs or govern without consequences. It means they should fight.

      Democrats no longer remember or do that – except when fighting the public over access, full disclosure and spending priorities.

  10. NCDem says:

    All these cases boil down to a massive criminal activity involving oil, drugs, money laundering of CIA money at AIG or Stanford International Bank, and financing for black opts throughout the world to support the multi-nationals. All reviewed and understood by our leaders in Congress of both parties. They are all interconnected. The Pike Report and the Church Commission from the 1970’s pointed its fingers at the crooks but never held anyone accountable. Iran-Contra…the same way. The BCCI investigation by John Kerry..the same way. War in Iraq by Bush and the Neocons goes down this same road. When will it end?

    EW, the report you link to from the GAO reports less than $20 million to Venezeula for drug interdiction since 2004 while we spend $6 billion in Colombia to support military rule but admittedly make no dent in the drug traffic coming from that country. Yet, the headlines is Venezeula and Chavez and their failure to cooperate. We live in a mad, mad world

  11. Mary says:

    One thing to keep in mind is that Lamberth did rule in one of the ACLU cases (can’t remember which one) that Gov COULD keep evidence of illegal activity classified, as long as the “intent” of the classification was not to cover up the criminal behaviour. And he was giving a lot of deference on intent.

    One thing I think needs to be done, in addition to disclosures on illegality, is for the record to really be fleshed out a lot on things like Tamm’s statements of people at DOJ talking about going to jail, etc.

    No one is ever going to volunteer that their intent was to classify to cover up their crimes – you need something in the public record to be able to point to when you make your spiel on why intent can be inferred.

  12. bobschacht says:

    EOH @ 21 (my browser is waiting for optimizedby.rmxads.com so some response features are not available):
    ”Every agency head should be willing to go to the mat for his people. S/he can take individuals or departments to task behind the woodshed, but in public and in budget and cabinet disputes, they’re the best. That’s called leadership.”

    You’re only describing half the job. Every agency head is also responsible for implementing policies of the administration. And besides that, they are responsible for obeying the laws and the Constitution. These responsibilities are often in conflict with each other, especially for the Director of the CIA. Panetta’s job is a very difficult one.

    Bob in HI

  13. MadDog says:

    Semi OT – Per Josh Gerstein over at Politico:

    Justice Department argues against releasing Cheney interview

    President Barack Obama’s Justice Department is arguing that former Vice President Dick Cheney’s interview with prosecutors in the CIA leak case should remain secret for five to 10 years to persuade high-level government officials to cooperate in future investigations.

    “In making public the Vice President’s interview, you will chill them,” Justice Department attorney Jeffrey Smith told Judge Emmet Sullivan during a two-hour hearing Tuesday on a Freedom of Information Act lawsuit seeking release of records about the Cheney interview, which took place in 2004.

    Sullivan sounded highly skeptical of the government’s arguments, but he said he had not decided how he would rule in the case “Where do I draw the line? This happened five years ago,” the judge said. “Would there be impediments to putting this information in a time capsule?”

    As the hearing concluded, Sullivan said he thought Congress had drawn a “bright line” with language in the Freedom of Information Act that generally exempts information about pending investigations from disclosure, but not closed probes, like the CIA leak case. He also said he would stay any ruling so the government could appeal before he released any documents

    (My Bold)

    Sounds like a telegraph to me. How about you? *g*