Intimidating the Defense Attorneys

It was bad enough that the Bush Administration did away with attorney-client privilege via their warrantless wiretap program. Now the Obama Administration appears to be trying to intimidate lawyers defending Gitmo detainees by threatening them with prosecution for trying to ascertain the identities of those involved in abusing their clients.

The Justice Department recently questioned military defense attorneys at Guantanamo Bay about whether photographs of CIA personnel, including covert officers, were unlawfully provided to detainees charged with organizing the Sept. 11, 2001, attacks, according to sources familiar with the investigation.

Investigators are looking into allegations that laws protecting classified information were breached when three lawyers showed their clients the photographs, the sources said. The lawyers were apparently attempting to identify CIA officers and contractors involved in the agency’s interrogation of al-Qaeda suspects in facilities outside the United States, where the agency employed harsh techniques.

If detainees at the U.S. military prison in Cuba are tried, either in federal court or by a military commission, defense lawyers are expected to attempt to call CIA personnel to testify.

This seems akin to me with the practice of refusing to tell defense attorneys what was done to their clients, including withholding Abu Zubaydah’s own diary.

But for a more informed take on what’s going on, check out this Bill Leonard post (remember, he used to head ISOO, the organization in charge of the federal security classification and after the AIPAC defendants won the right to call him to testify, the government case against the defendants fell apart). 

With the above as background, it is useful to look at the facts as reported in the WaPost article and assess exactly what the government is trying to do with the critical national security tool of classification. First of all, the classified nature of an intelligence officer’s cover is not sacrosanct. For example, earlier this year Andrew Warren was identified as the CIA Station Chief in Algeria when he was charged with drugging and sexually assaulting two women.

The ready disclosure by the government of Warren’s identity brings up an important provision of Executive Order 12958, as amended, which governs the classification of national security information and which is thus instrumental in investigating any alleged illegal disclosure of classified information. Section 1.7(a) of the order states that "In no case shall information be classified in order to: (1) conceal violations of law…". I have confronted many in government who take the position that this provision has next to no meaning. They argue that this section only prohibits the classification of information with the intent of concealing a violation of law. As such, they argue that classification could legitimately have the "unintended consequence" of concealing a violation of law. Although I do not agree with such a narrow interpretation, it would prove useful to examine the government’s intent in the use of classification in the case of defense attorneys reportedly showing detainees photos of CIA officers.


First of all, there is no evidence that the government took steps to conceal the identity of the CIA officers from the detainees themselves — otherwise showing photos to the detainees would be pointless. In view of the fact that no detainee is authorized access to classified information, the government apparently violated its own provisions by failing to conceal the intelligence officers identity from the detainees.

There’s more–some of which folks here may agree and disagree with. 

But Leonard does raise interesting challenges to the government’s intent to hide the evidence of its own wrong-doing even while winning cases against those it tortured.

38 replies
  1. phred says:

    Section 1.7(a) of the order states that “In no case shall information be classified in order to: (1) conceal violations of law…”. I have confronted many in government who take the position that this provision has next to no meaning.

    Well that would certainly be a cornerstone to the Looking Forward (not to mention the Hear No Evil, See No Evil, Speak No Evil) Movement.

    How convenient that our elected officials get to decide which words have meaning and which don’t in our nation’s laws. Let me guess, “we hold these truths to be self-evident” also has no meaning — although I’m not certain whether that’s because nothing is self-evident to these people or because they couldn’t recognize objective truth if it walked up and shook their hand.

      • scribe says:

        No, BMAz. To get the right effect, you have to render it in the original:

        “Ein fetzen Papier.”

        Brings out the right level of contempt for the paper and that which it represented.

      • phred says:

        (Smacks forehead with hand) – thanks bmaz, I totally forgot. What was I thinking??? ; ) All better now.

  2. scribe says:

    Of course, as Gawker says, the WaPo buried the lede (again): The ACLU managed to identify, tail and photograph those hapless CIA agents.

    The point of the government’s exercise is intimidation, pure and simple. From the article, it seems pretty clear that the defense attorneys and their investigators dug, and dug and dug and found – through public information – where their clients had been and a bunch of breaches of tradecraft by the CIA agents and contractors. And those breaches of tradecraft and similar fuckups allowed good, solid detective work to provide photos of people who might, or might not, be involved in the interrogation of the captives.

    Let’s be clear – these were pictures of people taken in public places, not lifted from their secret personnel files.

    One needs only to remember last month, when one of the Gitmo officers filed a transparently bogus sexual harassment claim against the Miami Herald reporter who’s done the best reporting on the atrocity that is Gitmo, more to get her off the beat than anything else. Yet another example of the military trying to intimidate.

    And, as to the whole “Can’t show a detainee classified information” canard, you should remember that earlier, the military tried to prevent the detainees from talking to their lawyers and/or shrinks about their treatment on the grounds that the treatment was classified as Top Secret and the the lawyers and/or shrinks were not cleared for and did not have a need to know. And they tried to prevent the detainees from talking about their torture in open court – again, because it would have been an unauthorized disclosure of classified material.

    Can’t have that one both ways….

    • Mary says:

      I think that Gawker point is pretty valid, but IMO that goes to what it is likely that gov is investigating.

      The military lawyers who are referenced as being investigated have been given access to classified info (under horrible = stupid restrictions on use in defense). I think gov is looking at these pictures, taken by public groups that are “providing support” to the military lawyers and are trying to make the claim that the only way the private orgs got the info that allowed for the pics was bc the defense counsel gave it to them in some fashion, so I think gov is going to be arguing that they think the military defense counsel laundered classified info that they were being blocked from using by getting some of it from a “different source” so that wasn’t given intel briefings so that they could claim it was untainted.

      IOW, I think that gov is likely saying the buried lead is even more buried, i.e., that the ACLU didn’t just track these guys down but that they laundered classified intel to track them down. I don’t buy it, don’t think you can classify torture, etc. but IMO that’s where gov is going. fwiw, just spec.

      • LabDancer says:

        IMO this is precisely right. Government prosecution offices are inherently vulnerable to bunker-think — & if a high percentage of their denizens happen to be paranoid, such as one might expect in reflection of a long period of service under paranoids, it’s worse — I’m tempted to estimate exponentially so. Plus it shouldn’t come as news to any here that such mentality turns to circle jerks, appears to be self-sustaining [while in reality is at least partly feeding on itself], & leads inevitably to abuse, comedy, tragedy & collapse.

        I do wonder that fearless leader projected controversy in response to this post; have I missed some recent troll installation?

        • bmaz says:

          We have had a couple, and the damn house troll specialist seems to have quit work. I am putting out a notice now.

          Wanted: Responsible troll minder/killer. References required. Submit qualifications to Emptywheel Blog.

    • Mary says:

      How did that effort to have him tossed in jail for contempt bc he sent a letter to Obama turn out?

      Related – Two men jailed after the Chicago/Burge torture spree were released yesterday.

      While Burge is getting a second look on the false statements front, there’s another aspect in all these cases that gets downplayed bc it involves the club – the actions of prosecutors in the cases.

      At their original trials, prosecutors relied heavily on the testimony of a jailhouse informant who claimed that Kitchen and Reeves made incriminating remarks to him about the murders of Deborah Sepulveda and her children, Rebecca, 2, and Pedro Jr., 3, and Rose Marie Rodriguez and her son, Daniel, 3.

      But phone records showed that the informant’s story was wrong, and prosecutors never told the defense that they had the informant released from prison early in return for his cooperation.

      And while Gov Ryan was many things that weren’t good and he caused some horrible outcomes, he was the guy with the political guts to pull one of these men off of death row. And Pat Quinn hasn’t received the Obama “we can’t look back” memo.
      He’s setting up a commission.

  3. Hmmm says:

    So crappy. Obviously someone just didn’t like having their boys stalked. Or having their noses rubbed in their crappy craft skills. So what’s the path for the defense lawyers now? Wait to be charged and then plead not guilty based on the broader interpretation of EO12958? Move for summary judgement?

      • Hmmm says:

        Oh man. “The court lacks jurisidiction, but just in case it doesn’t, it is WE who have been wronged and deserve summary judgement!” AKA Leeeeeeeaaave Wiretapping Aloooooooone!!!!!

      • DWBartoo says:

        Bmaz, your predictions have been realized precisely as you’ve called them.

        How do you imagine that Judge Walker might respond?

        Is it generally wise for an attorney, any attorney, to tell a judge that his or her court hasn’t jurisdiction before (or while) appearing in that court?

        Will Walker blink?

        Will the Gummint blink?

        Being the Gummint, it appears they may do as they wish. At the very least it would seem that the Gummint can simply drag this out forever. Even though one would suspect that the Gummint would simply like this to go away and be immediately forgotten, it appears to this non-lawyer that they want to rub Walker’s nose in his arrogance in even daring to cross he who must be obeyed …

        As we see the rule of law becomes either a pathetic sham or a sick joke several interesting “coincidences” have been annoying me.

        First, and foremost, is the fact that the majority (by far) of the members of Congress are lawyers. Apparently, the sad condition of the “rule of law” is of little interest to them. Presumably most do not intend to practice the law after their terms of “public service” are over. Whatever shall they do?

        Second, our new President, rumor has it, is a constitutional scholar.
        Would such a person have any interest in the rule of law, beyond lip-service, I mean?

        As you can readily see I am much perplexed.

        I’m also disgusted.

        Sorry to have gone off-track like this, but all of the attempts at intimidation perpetrated by OUR Gummint are clearly connected and they all point to a pattern which will lead inevitably to a further erosion of justice and accountability.


        • skdadl says:

          DWB, I mean to go back to the last thread and write to your response (and WO’s and fatster’s), but I am labouring under heavy antibios at the moment and feel I’m made of lead. Maybe tomorrow.

              • skdadl says:

                Sir! *wink*

                fatster @ 23, yes, we had tornados. I don’t think a twister touched down in my burg, but the storm was fierce and I have sprung a leak. Just what you’re looking for when you’ve just moved and have an infection, eh?

                There is a tornado alley in Ontario, but it’s usually a bit farther north than the track that storm took yesterday. Nobody ever expects to see a tornado in midtown Toronto — I mean, how can that happen in a city built up for so many miles all around? But it did. Yonge and Bloor — that’s like having a tornado in Times Square. Well, y’know, the mini-Canadian version of.

                A young boy died on a camping site north and west of the city. Very sorry for his family, and for all the people who lost their roofs and homes last night. No one saw it coming …

          • DWBartoo says:

            I look forward with considerable anticipation to reading such thoughts as you may share with us, skdadl.


  4. Mary says:

    All of this ties, as well, to the argument gov is making in the al Harramain case, as per Mad Dog’s link in another thread


    linking to this Politico story:…..ality.html

    Government lawyers insist that their continued drive to use the state secrets privilege to end the case —an effort which has drawn an outcry from civil libertarians — is not intended to shield illegality, though they don’t dispute that it could do just that.

    Harken back to when Candidate Obama was losing a little luster – that moment that EW blogged about over at Glen’s place – the FISA capitulation. Gov is actually arguing that the massive felonies are all okeydokey bc now Congress has made it “notafelony” to violate the 4th amendment.

    The brief says whatever allegedly illegal surveillance may have been imposed on the plaintiffs is unlikely to recur because Congress authorized a version of Bush’s program in 2007.

    IOW, it will be recurring, but just now the Dems have *legalized* it. So it won’t be recurring as illegal activity that is classified, but only as unconsitutional activity that is classified. Umm, wait a minute …

    • bmaz says:

      The argument that Congress had ratified the illegal conduct was a 100% given the second the morons rushed through the Protect America Act in early August 2007. As you were around back then, you may even recall my rather belligerent bleatings on that very subject.

  5. Leen says:

    “As such, they argue that classification could legitimately have the “unintended consequence” of concealing a violation of law”

    Or the intended consequence

    “In view of the fact that no detainee is authorized access to classified information, the government apparently violated its own provisions by failing to conceal the intelligence officers identity from the detainees.”

    This man can sure spin. I thought the argument he would have presented at the Aipac Rosen Espionage trial (that was dismissed )was that the classified intelligence that Franklin, Rosen and Weissman had access to and shared should not have been classified in the first place

  6. lllphd says:

    skdadl, liquids and rest, lots of both. hope you recover soon, on both the illness and leakage fronts.

    on the topic front, i’ve remained so disturbed by the fate of clive s smith’s letters, but more for the implications of how protected the prez is from the truth in these matters. we know a great deal of this went on with W, but no doubt it’s happening with obama, as well. clearly he has managed to surround himself with a ghastly number of old school and carry-overs who have a vested interest in keeping him informed only within their agenda. and then there are the infernal moles bush planted everywhere who must have some hand in these bizarre paradoxical shenanigans. granted, holder should be keeping more on top of these things, but where would anyone begin to try to clean up such a godforsaken infestation?

    i know my take on things is quite unpopular here, but having watched valerie jarrett assert it openly last week (i found her more credible than ew did, frankly, but so many sticky wickets, hard to know for sure), i am convinced that my intuition was at least close. obama as the constitutional scholar he is has no interest in governing the way bush did, the way so many want him to do, in just coming in all gangbusters and cleaning up. that is not what the constitution affords the executive, who is pretty much only to execute existing laws. i know, it’s idealistic as hell at this juncture, but there it is. and you have to admire the conviction to that. he wishes to lead by example, not royal order, which is why he keeps pushing congress to make better laws.

    ok, all that filed under theory; granted, enough has happened to still make one scratch the head. the backtracking on so many dangerous things like wiretapping and torture and even the public option (or did he?). i still have to ask what it would accomplish for him to impose these things we purists would insist on; realistically, what would you expect to happen? the rightwing media would have a heyday with his empiricism (funny how that never came up with bush), and well, that would be the end of all that.

    and you know what, rightly so, anyone having a heyday with that kind of empiricism, no matter the emperor. imposing his/her will is not constitutional for any president.

    but likewise the positions taken in the court cases. what would it mean realistically and pragmatically for the gubmint to take the high road at this point? wouldn’t that mean that all those cases would just essentially evaporate? again, how would that solve the real problem, which is to rid ourselves of those dreadful secret govt notions? if doj pulls the plug on the bush era positions, the cases will collapse and no judge will ever rule on them. again, wouldn’t this just feed the rightwing media with empirical fodder? disgusting as it is to have to reckon with that despicable faction, it is a formidable one that cannot be ignored. and besides, it’s ultimately not the executive’s role to determine such things, but the courts and the congress.

    i honestly don’t know if this is how obama is thinking, but in my feeble and puny IANAL mind i can easily imagine this logic. i can easily imagine not wanting to even give the impression that i am treading on thin ethical grounds by overstepping my constitutional boundaries for executing laws. i can easily imagine wishing to adhere strictly to setting the example of how to be president in contrast to the worst case opposite scenario we witnessed over the past 8 years.

    that said, i can just as easily imagine, knowing my impatience and tendency to self-righteous zeal, that i’d risk everything to just go in, fire every single mole and monster outright, investigate and indict intensely all hints of crimes and violations of the spirit of our laws, sign a whole host of executive orders righting the ship of state, and set about recovering equality for the citizenry and honor for our image abroad. you know, the whole heroic swashbuckling scenario.

    but when i look at it that way, i realize how extreme and absurd and fully unrealistic it is, and i am set to wondering again just how pragmatic our fellow progressives are in our idealisms and our demands. i mean, i want all the same corrections to the ills and crimes that have been committed that everyone else does, but i want them to stick, to last, and not just become inflammatory fodder for the insane pundits out there. and i don’t want to come by them on the cheap; i want to come by them the way we’re supposed to in this democratic republic.

    sorry to belabor all this, but just when i thought gosh we had reason to believe we could really fix this mess, i find i’m about as worried as i ever was under bush — tho for quite different reasons — that this whole venture may be too far gone the way of corruption and shifting of power to the corporate greed complex. when i get these feelings, i ponder such things. bad habit; so shoot me.

    and sorry, skdadl, to belabor this under your name while you’re tending a funk and a leaky roof. be well.

    • bmaz says:

      Obama’s credibility as a “Constitutional scholar” is fucking laughable. The man has shown nothing to indicate he would even recognize the Constitution if it walked up and hit him in the head. His specialty, to the extent he actually taught as an adjunct, was in voting rights and minority voting rights. Maybe he has some talent in that area, who knows, but he damn sure has not shown any indication that he has any particular skills or knowledge of the rest of the Constitution.

    • bobschacht says:

      OK, lllphd, I’ll see yours and counter. My prediction has fallen so flat that no one has commented on it positively OR negatively. To whit:

      2009 is an off-year, the year of making nice, hoping to forge a bipartisan majority on dozens of major initiatives.

      2010 is an election year. It will be open season on the Republicans, especially since they have spurned Obama’s efforts. My prediction was that by the time of the State of the Union speech in January, we will be hearing a different tone. Obama will take something of a high road, saying that his hand is forced, so that he must act out of regret rather than vengeance, but the net effect is that we will see many prosecutions of Republican criminals. Just to remind voters about the Republican brand of lawlessness.

      There are indications that this shift might come sooner, especially if the Republicans just won’t get on board the Health Care train. We might even see more energetic support for Dawn Johnsen.

      Mr. Constitutional Lawyer President is not done yet.

      (I know I’m guilty of attempting to play 11 dimensional chess.)

      Ah yes, and I see that I have run headlong into bmaz (cheers; waves)
      Bob in AZ(!)

      • Hmmm says:

        I am hoping PBO is gathering his energies during his vacation, for a true push on health reform upon his return. All this waffling on the hill has delivered him, I think, a moment here when he can, if he wants to (and I agree it is far from clear that he actually wants to), step into the void and through bold visionary oration lead the country to a consensus on some new, clean, bold idea like Medicare for Everyone, or The American Plan. With reconciliation and hard whipping they can get it enacted. Might come back to bite him later, but it sounds as though he’s been saying lately he’s happy to be a 1-termer if that’s what it costs to get stuff done.

        But if he waffles after vacation, it’s dead.

      • bmaz says:

        Please note that John Yoo is also a “Constitutional law scholar” and a major university just hired Alberto Gonzales to do one course a semester, which is exactly what Obama did. Apparently the bar isn’t real high any more. I remember a back during the primaries, him getting a question on the constitutionality of some law or proposed law. Can’t remember exactly what the matter question was exactly, but I remember being literally aghast as the piss poor totally idiotic answer he gave. The correct answer was there was no way the law could pass the constitutional test of strict scrutiny. A second or third year law student could have answered the damn question appropriately and Obama whiffed miserably; not even close. It was very telling.

  7. Jeff Kaye says:

    The government protects its own, unless they have some reason to dump the person. In the intel community, they are even more insistent on their vaunted untouchability. Many today, too young to remember the past, might be shocked to learn there used to be a journal in the U.S. dedicated to outing CIA agents.

    In the case of the DOJ claims against the Gitmo attorneys, Marcy and others are absolutely correct that this is intimidation. It’s right in line with the recent savage beating of Guantanamo prisoner-cleared-for-release, Sabar Lahmar.

    The true nature of the U.S. government and its military-intel apparatus has been totally untouched by the recent scandals.

    I have documented, for instance, that the government did not truly turn off the SERE psychologist participation in interrogations, and the loophole was reported at the very close of the SASC report (if anyone actually read that far). Furthermore, I documented that the AF Special Forces were still using such psychologists to oversee the “psychological” aspects of detention and interrogation.

    Btw, the passing of the July 22 deadline for the Obama taskforce to report on interrogation policy went with barely a ripple in the U.S. press. Another month has passed. Beatings at Guantanamo, refusals by the government to let UN personnel or US congressmen interview Guantanamo prisoners, the aggressive push to continue Bush’s state secrets doctrine in torture and wiretapping cases, indefinite detention at Bagram, and probably elsewhere. I’d wager that “temporary” CIA prisons continue to exist for torture, as the closure of CIA prisons only pertained to “long-term” facilities.

    Obama has shown his hand. The fluttering over the totally bogus and obscene Afghan “election”, where the “democratic” option can only maintain a serious presence via the backing of warlords and mass murderers like Dostum, demonstrates that the Bush mold was never broken. Maybe because it was not created by Bush nor Cheney alone, but was forged during the Cold War, and kept in place by Admirals, Generals, and CIA/NSA honchos in subsequent decades, down to today.

  8. HeyYou says:

    In reply to Scribe @ 2, who says, “military tried to prevent the detainees from talking to their lawyers and/or shrinks about their treatment on the grounds that the treatment was classified as Top Secret and the the lawyers and/or shrinks were not cleared for and did not have a need to know. And they tried to prevent the detainees from talking about their torture in open court – again, because it would have been an unauthorized disclosure of classified material.”
    IANAL, but by torturing detaineees, the military voluntarily provided these detainees with classified information, namely the military’s torture techniques. By so doing, the military lost all right to claim that such information is classified. How then can the military continue to claim that it is classified?

    • fatster says:

      Oh, stop being so logical! You’ll be making Repugican heads explode right and left. Come to think of it, do continue on!

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