Dennis Blair’s Not Going to Touch Bush’s “Inaccuracies”

Fresh off his fishing vacation break from retirement, MadDog found this declaration that Dennis Blair submitted in the al-Haramain case affirming that the documents correcting Bush’s inaccuracy are, themselves, classified.

There’s a really fascinating paragraph in that document:

I have reviewed the public and In Camera, Ex Parte Declarations of then-DNI Negroponte lodged in June 2006; the public and In Camera, Ex Parte Declarations of Lieutenant General Keith B. Alexander, Director of the National Security Agency, also lodged in June 2006; the public Declaration of John F. Hackett of the Office of Director of National Intelligence submitted in May 2006; and a copy of the classified "Sealed Document" that I understand was inadvertently disclosed to the plaintiffs and then lodged with the Court at the outset of this case. I have also reviewed the public and classified declarations submitted in February 2009 in connection with the declassification review ordered by the Court. This includes the public and classified declarations or John F. Hackett of the Office of Director of National Intelligence submitted on February 27, 2009; the public and classified declarations of Joseph J. Brand of the National Security Agency submitted on February 27, 2009; the classified Declaration of Anthony J. Coppolino, Department of Justice, Civil Division; and the classified Declaration of Andrea M. Gacki, Department of the Treasury, Office of Foreign Assets Control. [my emphasis]

To summarize, here’s what Blair said he had reviewed:

  • Public and classified Negroponte declarations, June 2006
  • Public and classified Alexander declaration, June 2006
  • Public Hackett declaration, May 2006
  • Sealed Document (the wiretap log)
  • Public and classified Hackett declarations, February 2009
  • Public and classified Brand declarations, February 2009
  • Classified Coppolino declaration, February 2009
  • Classified Gacki declaration, February 2009

See what’s missing?

Blair reviewed Hackett’s public declaration from May 12, 2006–but not his classified one. Nor did he review Coppolino’s or Gacki’s classified declarations from the same date. [Correction: I was working from memory–only Hackett submitted a declaration in May 2006. Update: I’m reviewing the language about this declaration from 2006, and they don’t say Hackett authored it (lots of the use of passive throughout), though it appears to come from ODNI, so Hackett.]

Back in March, I suggested that this classified declaration was the source of the "inaccuracy" that needed to be corrected before Judge Walker reviewed the record.

On May 12, 2006, in response to the judge’s skepticism that the document and a subsequent government filing needed to be handled ex parte, DOJ submitted superseding ex parte in camera material, and filed a motion opposing efforts to unseal these documents. 

Significantly (and I’ll return to this), three of the four people who submitted new declarations on Friday night contributed to the May 12, 2006 filing: Anthony Coppolino (who was and still is the lead defense attorney in this case), Andrea Gacki (then working as a DOJ trial attorney focused on security issues and now serves as some sort of counsel for the OFAC), and John Hackett (who was and still is DNI’s Director of Information Management Office, meaning he’s in charge of keeping ODNI’s secrets). Given that these three people have submitted new declarations (along with a new declaration from NSA), it suggests something about either the superseding materials or the unclassified declaration was inaccurate.

Given that Blair didn’t mention the earlier classified Hackett declaration, he seems to suggest I’m right–this declaration has been superseded by the now "corrected" information submitted in February, and so it is no longer part of the record so he doesn’t need to review them.

It suggests something else: Someone made damn sure that Blair didn’t review this document, and didn’t therefore become a party to the lies inaccuracies told to the Court under Bush.

Now, given that the earlier declaration was itself arguments for why this material couldn’t be revealed, it might be possible to force Blair to review those documents to see whether the rationale itself has changed. Or rather, to force him to take on the culpability of the three lawyers who submitted lies inaccuracies for Bush. I’m not sure how to do that exactly, or what the upside is. But I’d sure like an Obama appointee to have to admit that Bush was telling inaccuracies lies to the Court earlier in this case.

Update: Here’s the filing the government submitted with the Blair declaration. Footnote 6 explains why they felt the need to submit the Blair declaration.

Plaintiffs contend that an inaccuracy in a prior submission in this case may forfeit any deference to the state secrets privilege assertion. See Pls. Reply/Opp. (Dkt. 671/104) at 17, n.2. The Government addressed this issue six months ago in four classified declarations and will provide the Court with additional information on the matter if it is subject to review on an ex parte basis. See Declaration of Dennis C. Blair, Director of National Intelligence, filed herewith.

I say demand they provide that additional information. 

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28 replies
  1. JimWhite says:

    Hmmm, maybe the attorneys can help us out here, but I would have thought that the superseded documents are still a part of the record, even if they are no longer “operative” as the Nixonians would say. I also would think that as DNI, Blair would have the responsibility to know what false information was filed previously–wouldn’t it hamper his ability to do his job if he proceeds without knowing what the lie was?

    • bmaz says:

      Unless formally withdrawn and stricken from the record, and I don’t recall any evidence of that here from my journeys through the docket, they do indeed remain part of the historic record whether the public record or the classified one out of view.

  2. readerOfTeaLeaves says:

    It suggests something else: Someone made damn sure that Blair didn’t review this document, and didn’t therefore become a party to the lies inaccuracies told to the Court under Bush.

    The plots seem as thick as wet cement already; how much more can these plots thicken?

  3. Leen says:

    ew right up the alley

    David Cole on “The Torture Memos: Rationalizing the Unthinkable”
    Temp-image_1_148

    Legal scholar and attorney David Cole looks at the story behind the infamous Bush administration torture memos. Cole argues the memos show that the United States government’s top attorneys were instrumental in rationalizing acts of torture and cruelty, employing chillingly twisted logic and Orwellian reasoning to authorize what the law absolutely forbids. [includes rush transcript]

    http://www.democracynow.org/20…..ture_memos

    “AMY GOODMAN: And the Attorney General Eric Holder’s approach, hiring a—appointing a special prosecutor, but limiting the purview, explain what that is.

    DAVID COLE: Well, what Attorney General Holder has done is to say there are—we have evidence, through the CIA inspector general report, which was released in partially unredacted form in August, that CIA officials went even beyond what the Justice Department authorized, so including—you know, in addition to waterboarding people for hundreds of times, they also threatened a guy with a gun, they threatened another one with a drill while he was hooded and naked, they threatened another that if there was another terrorist attack in the United States, they would kill his children. I mean, this was not actually authorized by the Office of Legal Counsel. Holder has said those people and those incidents should be investigated. Well, they should be investigated, but so, too, should John Yoo, Jay Bybee, Dick Cheney, and those who authorized the brutality in the first place. It’s that decision to sort of say, we’re not going to treat these people as human, that led to the guns, the drills and the death threats.

    AMY GOODMAN: So he’s protecting his own Justice Department?

    DAVID COLE: Yeah. And, in fact, there’s a real conflict of interest here, right? Because he’s investigating the CIA people, but, of course, it was the Justice Department that led the CIA down this path in the first place.”

  4. MadDog says:

    I knew I could count on EW’s prodigious memory and analytical skills to explain to all of us just why DNI Blair’s latest declaration has the distinct odor of fish!

    At first, I thought it must be me back from my fishing trip, but no, I took a good, long shower, so it had to be something I was reading. *g*

  5. emptywheel says:

    Folks, I should reiterate, there’s some lack of clarity about who wrote the May 2006 declaration, and whether there are one or two. I’ll have to review it tomorrow when I’m fresh.

  6. orionATL says:

    leen @3

    quoting david cole

    “…Because he’s investigating the CIA people, but, of course, it was the Justice Department that led the CIA down this path in the first place.”

    in my view that is wrong, very wrong.

    doj did not lead cia, nor dod, down any path.

    in my view,

    the likely scenario is that the ovp under cheney insisted that the cia torture

    and

    insisted that the doj provide legal cover,

    or as i’ve said, scrim,

    to convince the cia it could hang muslims by their arms backwards, etc. without penalty.

  7. bmaz says:

    Interesting what is danced around by the government; namely Horn, and even more so, Jeppesen. They also, of course, mischaracterize the nature of the 9th interlocutory decision and how their own blunder has left them in the posture they currently complain of. It is a wholly disingenuous pleading; could be summarized “You can’t do this to us because we won’t permit it”. They also continue to ignore what Walker has previously determined. Have to be spooked to have slid in the “inaccuracy” bit in the footnote; if they were tap dancing any harder, the floor might give way on them.

    • LabDancer says:

      I suppose this suggests an answer to one of the great metaphysical questions of western civilization: If a filing falls ignored in the Oregonian forest, is there a sound?

      • JimWhite says:

        He said Horn. I think he’s referring to this case:

        A federal judge in Washington has ordered the government to grant security clearances to lawyers on both sides of a lawsuit claiming illegal spying against a DEA agent, in a ruling that challenges the government’s long-held claim that the executive branch alone has the authority to determine who can access classified material.

  8. LabDancer says:

    I think it was Henry Plantagent the II of England — him or Lawrence O’Toole, or maybe Peter Olivier — who once in an anteroom to the Royal Chambers at Clarenden Palace or some such hovel, expended a tiny yet portentous portion of air from his lungs in support of a muttering to ‘himself’, within earshot of servants & royal retainers, of these words: “For gawd’s sake, will NO one set an open thread & thus rid our personage of the persistent lengthy OTs of this turblogent responder?”

    Anyway, I add congrats on the good catch fearless; tho –

    I beg to differ as to the degree of difficulty being credited your sighting at this end, given that you & your entourage of both loyal allies & loyal opposition here posted multitudinously on the suspect status of this same classified filing, at various points starting in the last week of January two thousand-ought-nine & into, as you assert, March;

    including your true obedient servant yours truly’s insistence, right from the first fevered perch of your initial sighting of the government actors’ efforts to innovate their way out of this problem, armed only with chutzpah & duct-tape, that such was the degree, extent, nature or all the above, of said 2006 classified filing, that they well might resort to desperate & quite unlawyerly tactics:

    http://emptywheel.firedoglake……hn-walker/
    Response 8

    http://emptywheel.firedoglake……-you-want/
    Response 18

  9. Leen says:

    following the path of torture by and supported by the U.s.
    a bit more history about Elliott Abrams…many of the same folks still involved

    Scott Horton Interviews Robert Parry
    Robert Parry, founder of ConsortiumNews.com, discusses Ronald Reagan’s lip service to torture prohibition and support for atrocities in Central America, the hypocritical critiques of “moral relativism” by amoral neocons, the inheritance of an entire generation of government-worshiping journalists, Islamic fundamentalist blowback from Reagan administration attempts to weaken the USSR and the quid-pro-quo deal that enabled Pakistan to develop nuclear weapons.
    http://antiwar.com/radio/2009/…..t-parry-9/

  10. klynn says:

    Given that Blair didn’t mention the earlier classified Hackett declaration, he seems to suggest I’m right–this declaration has been superseded by the now “corrected” information submitted in February, and so it is no longer part of the record so he doesn’t need to review them.

    It suggests something else: Someone made damn sure that Blair didn’t review this document, and didn’t therefore become a party to the lies inaccuracies told to the Court under Bush.

    Someone is in trouble in more ways than one. I wouldn’t be ignoring Walker.

  11. WilliamOckham says:

    Here’s something I find interesting. Back in May 2006, the first footnote in the motion that accompanied the “inaccurate” filing says this:

    In addition to the previous classified declaration — which the Court has not reviewed — with this public filing, Defendants will lodge a superseding classified declaration, ex parte and in camera, for reasons that must be explained in the superseding classified declaration.

    The sequence went like this. Before May 2006, the Government filed a classified declaration (that the first judge, King didn’t read). Then, they filed the superseding declaration in May 2006. It was this superseding declaration that contained the ‘inaccuracies’. So, has the government had three tries at this?

    • klynn says:

      So, has the government had three tries at this?

      Nice find. Three tries? Again, I would not want to be ignoring Walker.

      Wow. Nice catch.

    • emptywheel says:

      And as I pointed out in this post (which covered that), in the same way that Blair didn’t read classified filing #2 (so as to avoid knowing about Bush’s lies), Hackett didn’t read classified filing #1 (presumably so as to avoid knowing about Bush’s first lies).

      • WilliamOckham says:

        Indeed, you did (I didn’t go back read your Mar 1 post). I guess I was discovering that as if for the first time (h/t Scooter Libby). I don’t get why this guys aren’t admitting to reading the prior filings when they are undoing them. Is this some legal thing or do they think the judges are that stupid?

  12. Mary says:

    I agree and disagree about what they are doing with Blair and keeping him clear from the classified Hackett declaration.

    While he is not reviewing it, he is reviewing the documents that are being filed that are “correcting” the statement(s) in the filing, so to that extent he is almost certainly now “in on” or exposed to whatever the fib that is being corrected would be.

    His not reviewing the classified Hackett declaration caught my eye, but that made me find a different part of his declaration really interesting – the part where he says:

    My review specifically included the information submitted to the Court that addresses the inaccuracy contained in a prior submission in this case by the Government. As to that particular issue, I concur with the conclusion stated by the Government in its declassification review report that the inaccuracy at issue does not alter the classification determinations made in that report by the ODNI and the NSA regarding information subject to the states secrets privilege and the statutory privilege assertions in this case.

    So if he doesn’t see the original filing – he’s not on the hook for any OTHER inaccuracies in that filing that he would know to be false given his position. Now keep in mind that you would theoretically (if DOJ and the intel community weren’t peopled by the kind of people who people them) have a really different analysis on declassification if things were being classified to cover up criminal acts or avoid embarassment. Blair is looking at the inaccuracy that has been singled out for *correction*(in all likelihood its one that they realize the court could have or would have discovered on its own) and he’s thinking – oh great, involve me in this and I’m damn well not going one comma beyond what you fixed.

    It was always kind of odd in a state secrets context for the Hackett declaration to be there imo. The case law parameters on that invocation require that the head of the agency personally review everything and make the declaration. With the new DNI slot they are probably a little uncertain whether that would mean head of NSA or DNI, so I understand the belts and suspenders there.

    But Hackett’s declaration gives a feel that neither Negroponte nor Alexander really wanted to be making the statements that were in the Hackett declaration and yet apparently they contain statements they felt someoen had to make in a classified declaration, once the court indicated it wasn’t going to flat out shut things down at the whisper of “state secrets.”

    When you have case law spelling out the use of head of agency declarations (the court’s way of insuring that an agency head is fully briefed in and taking all responsibility before the court for what is being asserted – since the court action they are seeking is extraordinary) and you have them, but are also trotting out other guys, that sets off some alarms, rightly or wrongly. The purpose of the Reynold’s approach is to make the agency heads own what is being said to the court.

    DOJ makes sure they pad out Blair’s declaration with not just his agency head status, but also with his prior accomplishments – as if they are trying to say to the court, *here is one honest man, be merciful with Sodom state’s secrets.*

    But I have to think the court would, at this point, at least want the agency heads (Alexander and Blair) to a)certify as to all classified filings, including Hackett’s, and based on the personal review standard that is REQUIRED by Reynold’s and the non-existence of hiding criminal acts and non-existence of intent to avoid embarassment required by Exec Order, and b) certify that they have exercised due diligence in determining all of that,the truth or falsity of statements made to the court and the lack of crime and lack of intent to cover up embarassing matters, including making diligent inquiry of their predecessor’s in office at the time of the acts and obtaining declarations under penalty of perjury from such precessors where reasonable or necessary.

    But maybe not.

    Still, I can’t imagine that there’s a way to make the Reynold’s requirements of personal review and knowledge assertions by an agency head fit the “as to that particular issue” position taken with the court by Blair and Coppolino.

    Not to beat my dead horse, but what SJC needs to do to get a real investigation is to frame it as investigations into how DOJ and Exec branches have interacted with the courts and Congress with respect to classification and states secrets and the GWOT. If you start listing the now known and revealed instances of lies to the court and Congress, it’s staggering. And as the situation with “The Scholz” reveals – DOJ has a very low bar and a very unique set of standards when it comes to lies by its own and by the Exec branch to the other branches. Perjury and fraud on the court and obstruction of courts and Congress etc. – apparently they’re just a joke to DOJ lawyers. And those DOJ lawyers who get by with treating the law as a joke are too often the ones who end up on the bench. That Silberman decision on judicial blessings for contractor depravity was backed by Kavanaugh. So the conservative judges like Lamberth and Walker who don’t get the joke are being replaced by a cadre who are in on it.

    As disempowered as the Dems in Congress were when people hated Bush and the Republicans, it will be as nothing when they earn just as much contempt and dislike for not only their behavior in the minority, but their failures in the majority. They are sealing the deal on a huge change in corporate, Executive, Legislative and Judicial interactions. Cheney wasn’t that far wrong with 4th branch – Congress and the courts are allowing multinational corporations to become our 4th branch – and one that is more powerful in many ways than the others. They are setting up situations were telecoms are “too big to be held accountable for breaking the law” and corporations housing cross boundary mercenaries and goons and outlaws are judicially blessed to operate with impunity.

    And all we have is Obama and Holder.

    “Depressing” doesn’t descrie the hard edges on it all.

    • DWBartoo says:

      Your last paragraph sums up most of our interconnected “predicament”, precisely.

      To add to the “Depressing” reality, there is the fact that far too few Americans have even the vaguest notion that anything “untoward” is going on.

    • klynn says:

      Congress and the courts are allowing multinational corporations to become our 4th branch – and one that is more powerful in many ways than the others. They are setting up situations were telecoms are “too big to be held accountable for breaking the law” and corporations housing cross boundary mercenaries and goons and outlaws are judicially blessed to operate with impunity.

      I agree but would add moles within corps working in tandem with government moles.

  13. maryo2 says:

    IANAL:

    Justice Department spokesman Matt Miller said of the [Mohamed et al v Jeppesen Dataplan, Inc] case, “It is the policy of this administration to invoke the state secrets privilege only when necessary and in the most appropriate cases, consistent with the United States Supreme Court’s decision in Reynolds that the privilege not ‘be lightly invoked.’”

    But in Reynolds, the Judge offered to make the airplane crash survivors available for examination, but the plaintiffs declined. My question is – can surviving tortured rendered x-detainees be made available in lieu of the State’s super-duper secret?

    • maryo2 says:

      Same Justice spokesperson, Miller continued

      “The Attorney General [Holder] has directed that senior Justice Department officials review all assertions of the State Secrets privilege…”

      So, is that a goddamned lie?

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