The Torture Apologists Ratchet Up the Attack

You know how the Moonie Times let go almost all of its “journalists” last year? Well, apparently they haven’t let go of their CIA mouthpiece (not a surprise, I guess, since MT has always been one big disinfo campaign), Bill Gertz. And he’s out this morning suggesting (though not saying explicitly) that the CIA wants human rights lawyers trying to identify the people who interrogated their clients investigated for Intelligence Identity Protection Act violations–the crime Dick Cheney got away with when he outed Valerie Plame. (h/t MadDog)

As a reminder, detainee defense lawyers have undertaken what they call the John Adams Project–an effort to take pictures of suspected interrogators that they can show to their clients to positively ID. The hope is to call detainees’ interrogators to testify at their habeas proceedings and/or criminal trials. Of course, this information should be available to detainees in any case, but the government routinely protects it under national security classification rules.

The CIA, of course, is apoplectic that its interrogators might be tied to what they did to these detainees. So, in a brief to longtime CIA guy and now top Homeland Security advisor to Obama, John Brennan, they appear to be trying to suggest the John Adams project be investigated for IIPA violations. And because one of the DOJ staffers is a former House Intelligence Committee staffer (but not, according to the CIA, one of the guys briefed during the most secretive torture briefings), and because the torture apologists are already conducting a witch hunt of those at DOJ they say are al Qaeda sympathizers, Vieira has recused himself and DOJ has apparently brought in Patrick Fitzgerald (who knows a thing or two about IIPA violations) to try to resolve the dispute.

According to U.S. officials familiar with the issue, the current dispute involves Justice Department officials who support an effort led by the American Civil Liberties Union to provide legal aid to military lawyers for the Guantanamo inmates. CIA counterintelligence officials oppose the effort and say giving terrorists photographs of interrogators has exposed CIA personnel and their families to possible terrorist attacks.

[snip]

Donald Vieira, a former Democratic counsel on the House Permanent Select Committee on Intelligence who in September became chief of staff at the Justice Department’s National Security Division, recused himself from the counterintelligence investigation into the recent discovery of photographs of CIA interrogators in the possession of defense lawyers at the prison in Cuba.

The investigation has been under way for many months, but was given new urgency after the discovery last month of additional photographs of interrogators at Guantanamo showing CIA officers and contractors who have carried out interrogations of detainees, according to three officials familiar with the investigation. They spoke on the condition of anonymity.

Findings of the investigation to date produced some signs that the senior al Qaeda detainees at Guantanamo gained intelligence on CIA interrogators through their lawyers that could be used in future legal proceedings.

[snip]

Details on Mr. Vieira’s recusal could not be learned, but the Justice Department team recently added Mr. Fitzgerald, the U.S. attorney in Chicago who led the controversial 2005 investigation into the public disclosure of the identity of CIA undercover officer Valerie Plame.

But PatFitz appears to have been unable to convince CIA not to use whatever inflammatory language they want to use (again, given the players, I’m suspecting it’s a claim that IIPA was violated) in a brief for John Brennan on the subject.

According to the officials, the dispute centered on discussions for a interagency memorandum that was to be used in briefing President Obama and senior administration officials on the photographs found in Cuba.

Justice officials did not share the CIA’s security concerns about the risks posed to CIA interrogators and opposed language on the matter that was contained in the draft memorandum. The memo was being prepared for White House National Security Council aide John Brennan, who was to use it to brief the president.

The CIA insisted on keeping its language describing the case and wanted the memorandum sent forward in that form.

That resulted in the meeting and ultimately to Mr. Vieira withdrawing from the probe.

Aside from the underlying issues–such as that some if not most of the interrogators in question are contractors who were working for Mitchell and Jessen, the fact that their identities are obvious enough for hippie human rights lawyers to discover them, and the fact that (contrary to Gertz’ use of the word “terrorist” throughout) some of the detainees in question are not terrorists at all–this seems to be the next step in the witch hunt, in the effort to make defending alleged but not proved terrorists itself a crime.

The other irony, of course, is that the torture apologists are spending so much effort attacking DOJ when, at the same time, DOJ appears to be working overtime to prevent anyone at CIA or in the Bush Administration from being held accountable for the torture they committed. CIA ought to be thanking DOJ and instead they continue the witch hunt.

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38 replies
  1. Leen says:

    –”the crime Dick Cheney got away with when he outed Valerie Plame.”

    Baby and Daddy Cheney continue to be a threat to U.S. National Security by undermining the DOJ.

    • klynn says:

      EW, bmaz, Mary

      Could it be argued that committing torture (breaking the law) is in fact a violation against IIPA because you acted in a way calling a need to reveal your identity as a torturer (law breaker); thus, threatening national security?

      An “intelligence under the law” type of perspective?

      IANAL

      • BoxTurtle says:

        Yes, it could be. BUT it would be up to the DOJ to take the lead on that and if the DOJ wanted to prosecute anybody for anything there are much more direct routes.

        We need to face the fact that no American court will ever touch the torturers. Ever. The best we can hope for is a Truth Commission after everybody is dead.

        Boxturtle (Russ Feingold for president!)

      • Mary says:

        No – you have to be the one who revealed the identity, so I don’t think that would fly and there would be a lot of policy reasons not to go there.

        My understanding is that the defense lawyers were pretty careful that the pictures were not being obtained as a result of the lawyers’ access to classified intel that revealed the identity or as a result of classified intel access that directly led t the revelation of the identity. In any event, the statute is pretty careful to make sure that it carves out the ability of Congress to get that info for it’s functions; similarly, I think you’d have to imply the ability (although neither is stated) of officers of the Court to get access to an use such info for the court’s functions. But maybe not.

        Of course, it’s somewhere we wouldn’t have to go if the DOJ had been pursuing criminal charges as it should have – unless someone wants to argue that as long as a President wan’t to keep a torturer/assassain’s identity covert, then that agent can’t ever be charged for crimes he commits. Bc, you know, DOJ would have to disclose, for example, the identity of the CIA Algerian (alleged) rapist to charge him with … rape. Or torture, or anything else.

        Obama creates his own problems by not ever lining up to do the right thing. Whichever way this one goes, it won’t be good. You don’t want people going around stalking and revealing identities of covert agents in general – OTOH, you don’t want Presidential Torturers to be able to not only use IIPA to protect themselves but also as a sword to cut the throats of anyone seeking justice for their torture victims.

        OTOH, Obama coming in and making it clear that torture was not a protectable crime and that no efforts would be made to keep identities of torturers cover in connection with legal proceedings – well, he could have done the right thing and not set up everyone for a bad result, bc whichever way this one goes, it’s going to be a bad result — it’s a classic example of hard facts and bad law. You don’t get much harder facts than Presidential torture of innocent people becoming DOJ policy to protect.

        • BoxTurtle says:

          Another thing we have to accept is that those who are standing up against the torturers are in the minority. Outside of FDL, I don’t know one person who agrees with me that BushCo should be held accountable. Most aren’t even paying attention, and the few that are think we’re too easy on the terrorists anyway.

          Actual quote: “If they fear us, they won’t f**k with us”. Speaker has a J.D. from University of Dayton.

          I’m starting to get a feeling of how the Quakers felt standing up against slavery.

          Boxturtle (I see no reason that Dick Cheney and Osama can’t occupy neighboring cells in Florence)

          • Mary says:

            You’re right.

            And it’s because even those who get pointed to as heroes have never, ever – ever – did I mention ever? – really followed the law with respect to the soul-destroying crime of torture. The closest anyone came was Soufan almost wanting to threaten to arrest someone.

            And they know that they’ve been the catalyst for the creation of not just torture victims, but also the creation of torturers. A creation they will not, no matter what, even attempt to dismantle.

            Once upon a time, early on in all this – you had people at DOJ reciting with certainty that because of the torture, there could never be trials. Now, after DOJ has affirmatively participated in national conditioning of Americans for almost a decade, they’ve blithely created a country they couldn’t even imagine when they first chose torture complicity. A country that doesn’t care about being a torture regime and where the loudest voices come when torture isn’t chosen, not when it is – and a country where there is no voice for the Arar’s and el-Masri’s, bc DOJ intervenes to silence and the courts acquiesce.

            It’s just too disturbing to watch. I could never imagine anything as filthy as what DOJ has willingly become. Several years back there was a competition horse owner who ended up being a very bad guy and one of the things that was alleged (I couldn’t make myself follow it to see how true it was or wasn’t) was that he’d trained his lab to back up to him and other men so they could engage in bestiality and the poor dog, after being taken from him, kept trying to engage in that action. Unlike DOJ lawyers, the dog was unaware of the depravity it had been taught and to which it was ingratiatingly obedient.

            And unlike DOJ, the dog didn’t try to recreate the worlds of everyone around it to try to impose its own taught depravity on them.

            • tjbs says:

              Nice mental picture.

              Did you have to bring up bestiality. That would appear to be an EIT they overlooked using and could surly add to their toolbox, so to speak.

            • DWBartoo says:

              You don’t seem too optimistic today, Mary, about the courts.

              The “legal profession”, in its majestic entirety, seems at complete odds with the rule of law.

              The police want data banks on the innocent … while the court’s wish to hear no words of any sort regarding high crimes, crimes against humanity … if perpetrated by those too biggie wiggie to … well, just plain too “big” to be “brought” to justice.

              It is little said, but, truth to tell … the police want such power for two reasons, yes, they certainly want information on everyone (of a certain sort …) but also they wish to impress upon EVERYONE the immense power they, the police have, it is nothing less than the power of life and death, with a world of aggro thrown in just to keep people shut up, and in their “proper” places. Raw, brute power is the proper name for what some of the political leaders of the police want.

              The courts, likewise, have awesome power, which the courts most happily bend to suit the whims of the powerful … and the super-wealthy. The courts cannot look at what has happened regarding torture, for then they should have to look to themselves. The court doesn’t want that.

              It would appear that the civil war among attorneys (which I have speculated about, and am convinced exists, despite meager evidence), regarding what is going on at DOJ and with the rule of law, is most … well … civil, and so very, very quiet. Deference … and all that …it must be?

              Seems to me, that if attorneys, who should know a thing or two, about something, don’t appear to have any stomach to look at their own profession. Yet attorneys (and professors of law) have a larger share of responsibility to raise issues of law gone bad, of lawyers run, literally, amok, to the public at large, “the people”, than do psychologists, for just an example. Of course, psychologists ought to be concerned about psychology’s role in torture as well as pondering the law’s enabling and protective role.

              Looks to me like everything will be “successfully” covered up.

              Except doubt.

              Maybe that is why the legal profession is so silent?

              The worst thing that any in that august profession could admit to, is the merest shadow of doubt.

              It is not like America is Pakistan … or even Rome.

              We are so much wiser, now.

              DW

            • Leen says:

              Yowser. So many important points. The question of what happens to the people who demand that international agreements be re-written, and those who re write the torture laws, and those who inflict the torture. Going down down down.

          • IntelVet says:

            How ever does anyone get the idea that the use of torture causes “fear” in one’s enemy? Someone who is to be a suicide bomber fears torture? In a pig’s eye. Americans who believe that are smoking a really good form of dope.

            The bad dudes fear being portrayed as thugs, cowards and scum and not as warriors.

            The only one’s I see fearful of torture are the usual cowards, cheney, bush, rummy, kagen, kristol, all who consider themselves warriors.

            • Mary says:

              The bad dudes fear being portrayed as thugs, cowards and scum and not as warriors

              And that’s really the only theme that *wins* what we supposedly are trying to win – a decrease in radical, militant, extremist terrorism.

          • bobschacht says:

            Another thing we have to accept is that those who are standing up against the torturers are in the minority….

            Too true, but back in the 50s, those standing up against racial discrimination in the South were in the minority, too. Determination, patience, and persistance are necessary. Let’s keep our eyes on the prize, and move on!

            Bob in AZ
            (Sorry, but old cleeshays are the best I can do today.)

        • Acharn says:

          Well, actually the identity of the CIA guy who was investigated for rape, the former CIA station chief in Algeria, was outed back in January. According to CNN his name is Andrew Warren. I didn’t bother looking up anything more recent on him. Don’t know what the outcome of the investigation was, but suppose it was decided to look forward, not back.

          Actually, I understood the IIPA was so narrowly written that the only way you could violate it would be to be a former employee of the CIA writing a book about the internal workings of the agency. Outside of that, despite all the screams about “endangering undercover personnel”, there isn’t any law that they could be charged under. Certainly they didn’t try Libby under IIPA.

          • bmaz says:

            The IIPA is nowhere near that narrowly drafted as to its elements; that said, you are quite correct that it is a bizarrely conceived charge that would be difficult to prove up.

  2. wavpeac says:

    So we are observing and documenting the fall of Rome. Great seats. It’s WAY hard to watch though.

    • fatster says:

      It is a most dizzying descent, is it not?

      What if those we call the Founders had instead been of the same ilk as most in Washington seem to be today?

  3. tjbs says:

    Would there be any pictures of the bunko boys in those torture pics?

    These guys have highly polished skills in the abuse of human beings, that takes practice lots of practice. Was Abu Grahab been a training ground for these jobs?

    Do we have obstruction of Justice by someone who blacked out the criminals faces in the pics?

  4. earlofhuntingdon says:

    Joe McCarthy must be smiling, though whether from infernal alcohol or recognition of kindred spirits would be hard to tell. His heirs will probably sue these clowns for copyright violations. They could make a bundle.

    That their antics further damage an unreconstructed DoJ, still under the White House’s thumb, and that the continued if lessened politicization of their work damages America makes no difference to them. It’s a level of selfish cynicism that would have made Ayn Rand blush, had she been able to.

          • fatster says:

            Aw, man, you’re the best! At least you didn’t make me run some more furlongs like skdadl did on the previous thread. Man, I’m tired.

            • skdadl says:

              It is a far, far furlong thing I do than I have ever furlonged before …

              I justify these jokes to myself by saying that we’re not really making fun of people’s names, which would be wrong. We are just developing mnemonics that will help us all to remember the details of important historical episodes.

              How’m I doin’?

              • fatster says:

                Sigh. You’ve gone one furlong too far, or at least I have. I am exhausted from this jog upon which you set me.

                Sweet dreams.

  5. Mary says:

    He’s mentioned in the story, scribe. Apparently some members of Congress have been in touch with him, chewing his butt that he’s not doing enough for his torturers.

    BTW – I’d like to see the defense counsel seeking out some protective orders for themselves and their families. After all, their identies and families are now known and can be easily targeted by trained torturers and assassains with whom they are adverse. Torturers and assassains who work for the President and who the President has said his DOJ won’t be prosecuting, bc they have a Good Faith (based on worship of the Executive and of torture). Not any kind of legal good faith defense (which, btw, even the torture lawyers say the torturers don’t have) but just some generic, Presidentially and Republican acclaimed “Good” faith.

    In any event, there are men and women who have knowingly been involved for years in the kidnap and torture of innocent men and women and children, including deaths by torture and killing innocent people by drone attacks and other means. They have disappeared people and been publically tied to those activities but, as with drug lords in South America who have the courts under their sway, the prosecutors and courts in the US have done nothing about any of these Presidential torturers and assassains – – and they now have access to all kinds of information on defense lawyers and assurances from the Executive branch that, no matter what they do, their identities will be protected from the courts.

    You have to really wonder who it is that should be complaining to Congress and DOJ.

    • powwow says:

      You have to really wonder who it is that should be complaining to Congress and DOJ.

      Well, two of those purportedly “human rights hippie-aided” U.S. military JAG Guantanamo defense lawyers did some “complaining” about this where it might, and ought to, count – in the U.S. Circuit Court of Appeals for the District of Columbia, last September, on behalf of their “9/11 Five” client, Ramzi Bin Al Shibh; which has resulted, ominously, six months on, in no meaningful response from the court, as far as I know:

      However unfair (and unconstitutional) the MCA may be as a facial matter, the concrete reality of the commissions system has been even worse. Central Intelligence Agency (“CIA”) interference with the defense function has been an integral part of this [military commissions] system, with devastating effects on the fairness of the proceedings. Most recently, the FBI began an investigation of military defense counsel that has calculatedly employed heavy-handed investigative techniques that have destroyed attorney-client relationships and the ability of some counsel to perform their defense responsibilities. The investigation was almost certainly instigated by the CIA, since it is being overseen by the agency of the Department of Justice to which the CIA reports. Peter Finn, Detainees Shown CIA Officers’ Photos: Justice Dept. Looking Into Whether Attorneys Broke Law at Guantanamo, Washington Post (August 21, 2009). This gross interference in the defense teams’ attorney-client relationships is part of a pattern of CIA interference with the commissions. Defense counsel are never certain, and have no way of being certain, whether they are disclosing information that the CIA views as classified when they are speaking in court or filing motions, leading to a chilling effect and aborted arguments of counsel and the accused, as the CIA rules, in the moment, what matters may be discussed in court and what may not.

      […]

      In the latest [Guantanamo Military Commission] hearing [in the case of Ramzi Bin Al Shibh], held on 16 July 2009, during argument by counsel for the Petitioner on a motion to compel assistance of a sleep deprivation expert, the audio feed to the public from the courtroom was terminated. The military judge instructed that the security officer seated next to him would leave the courtroom to make a phone call to unnamed persons. The security officer returned a few minutes later, whispered to the judge, and the judge then instructed counsel to discuss only matters that occurred after September 2006, the month when Petitioner arrived at GTMO and entered DoD custody. Hr’g Tr. 1118-21 (Jul 16, 2009)(classified)

      Control of classified information in this case is also used as a sword against the defense. For example, in one instance the prosecution incorrectly assumed that Petitioner’s counsel had disclosed classified information to attorneys representing Petitioner in habeas proceedings, in contravention of the numerous protective orders in this case. Operating on these false assumptions, prosecutors initiated an official inquiry. Attachment AA. Counsel were required to address this matter while also pursuing the defense of Petitioner. Attachment BB. More recently, the Federal Bureau of Investigation entered defense office spaces to interrogate defense counsel regarding a purported violation of classified information rules. Peter Finn, supra, Washington Post, August 21, 2009.

      The security classification rules that so strictly control the defense and hearings in this case, however, do not apply when the government does not wish them to apply. For example, when the commission had ordered a 120 day continuance of this case as a result of the President’s Executive Order (E.O. 13492, 78 Fed Reg. 4897 (January 27,2009)), the military judge nonetheless accepted the filing of a pleading on behalf of all five accused. See United States v. Mohammed, et al., D-101. This pleading, presumptively classified TS//SCI (codeword), was filed and publicly released before defense counsel representing two of the accused were notified. Attachment CC, DD. The military judge effectively dismissed defense counsels’ objection with the assertion that when a document is filed, “the public should generally be able to determine for itself the correctness of a judicial decision in determining a party’s substantive rights, absent some evidence release could reasonably affect the outcome of the trial.” Attachment DD, at [Par.] 3-4. This was a remarkable explanation, given that the accuseds’ statements are all presumptively classified, and given the extraordinarily prejudicial content of the accuseds’ statement. See William Glaberson, Detainees Say They Planned Sept. 11. N.Y. Times, March 9, 2009, at Al.

      In another instance, the government sought to shore up its opposition to a defense motion to transfer Petitioner to less onerous conditions of confinement with the filing of a declaration that purported to describe in detail, the Petitioner’s conditions of confinement. See United States v. Mohammed, et al., Declaration of CDR Jeffrey K Hayhurst (filed in support of Govt. Response to D-119). That [prosecution] declaration was not deemed to be classified, even though defense counsel had been instructed that their notes from viewing Petitioner’s conditions of confinement were to be treated as classified.

      U.S. Navy JAGs Suzanne Lachelier and Richard Federico of the Office of Chief Defense Counsel, Military Commissions, Department of Defense, 9/9/2009

      I’m sure David Kris (head of DOJ’s National Security Division) and AG Holder need all the help they can get, in general, to fight the good fight, and I’m heartened to see that they were wise enough – unlike Obama himself – to call upon the services and experience of Fitzgerald. But they’re all tiptoeing around a huge mine field, and Fitzgerald, in particular, had better be on his guard against the political hacks of this administration, or unaccountable actors at the CIA, maneuvering to use his hard-earned reputation for integrity to excuse or endorse their past or ongoing offenses, however tangentially. This is a case of ‘in for a penny, in for a pound’ given the review at issue of CIA/DOD/DOJ actions directly connected with the gravest of public trust breaches, and with the publicly-suppressed yet apparently officially-sanctioned spurning of the law and the basic human rights of improperly-decreed non-POW, and unconvicted, foreign prisoners locked up in our military prison(s).

      • bobschacht says:

        Thanks for this documentation.
        Sen. Lindsey Graham must know all of this. He must know that any action by the military commissions will generate numerous lawsuits and appeals that will stretch the trials out for years, so he must think that he can take advantage of that situation. He must also think that he’ll get a favorable ruling out of the Supremes, where this is surely headed if the Military Commissions are used for KSM et al.

        Obama’s legal staff must also know this.

        Is Obama sinking deeper into the Briar Patch?

        Bob in AZ

  6. Mary says:

    Slightly OT – but pretty closely related.

    Here’s how torture makes us safer

    http://www.time.com/time/world/article/0,8599,1969692,00.html

    Germany has convicted 4 men charged with seeking to plot a second 9-11.

    The leader, Gelowicz:

    Though he became a devout Muslim, he appeared to lead the life of a normal teenager — he even played quarterback on an American football team. Things changed, however, when he started visiting an Islamic center in the southern city of Neu-Ulm and found himself outraged over the photos of the Abu Ghraib prison scandal in Iraq and the terror suspects being held at Guantanamo Bay.

    Gelowicz’s lawyers say the catalyst for his transformation to extremism was apparently Khaled el-Masri, a German of Lebanese descent, who prayed at the Islamic center with him. El-Masri claims he had been abducted by the CIA in Macedonia in 2003 and taken to Afghanistan, where he was held for five months on suspicion of having links to al-Qaeda. (His detention was later revealed to be a case of mistaken identity and the case became the subject of a Bundestag inquiry.) “Gelowicz told the court that ‘The Americans have brought the war to my mosque,'”

    Oh, and the confessions obtained without torture in the German proceedings?

    The confessions of the men in the Sauerland cell were so thorough and detailed that even prosecutors were surprised.

    Time poses the question of whether or not German authorities have learned enough from the case to prevent future homegrown plots.

    Um – maybe pushing for some justice for Abu Ghraib detainees, Khalid el-Masri etc – aww, nah, that couldn’t be it. After all – why would the US Congress keep pushing for GITMO and torture it was going to make bases in Germanay and Europe targets for terror?

    • fatster says:

      That is a very interesting story. German authorities watched this small group very carefully and pounced just before they were set to carry out their ghastly plot, after which the German interrogators were able to draw complete confessions that led smoothly to convictions. But at the very end of the Time article, is this astounding conclusion:

      “Luckily, Germany did avert a major terrorist attack — this time. The question is whether the authorities have learned any lessons to prevent the next homegrown plot from coming to fruition.”

      What’s up with that? Talk about a non sequitur!

  7. alinaustex says:

    [email protected]
    We may yet see KSM tried in civilain court held at Governor’s Island .
    We may all be pleasently surprised by Attorney General Holder’s fidelity to the Rule of Law .
    My hunch’ (hope) is that once the dust settles on the HCR reconcilation contretemps we will begin to see pushback from Team Obama regarding issues we are in support of here at the Lake.Especially civilan trials for the ‘terrists ‘

    • bmaz says:

      We may all get a unicorn pony for Christmas, everyday will be Friday and we will all be rich beyond our dreams too! This will all be so swell and marvelous!

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