DOJ: Calling Out Government Lies Would Endanger National Security

The government argues that, in spite of the fact that Saifullah Paracha’s Gitmo Detainee Assessment Brief was leaked in April, his lawyer, David Remes, cannot talk about it. Because if he did, we might conclude the DAB was real.

Granting Petitioner’s request could also be detrimental to the interests of national security, given the access to classified information that petitioners’ counsel enjoy but that members of the public at large do not. Reliance on the purported detainee assessments leaked to WikiLeaks in unclassified public writings by habeas counsel known to have access to classified information could be taken as implicit authentication of the reports and the information contained therein.

Of course, no one really doubts that it is real. But the government will claim that this public information remains classified to make sure Remes can’t mention the information. Remes can only represent his client, I guess, in court, not in the public sphere.

The problem, of course, is that the file contains obvious problems–if not out and out lies, then at least one gross misrepresentation, to wit: the government claims that Aafia Siddiqui “was detained in Afghanistan in mid-July 2008” (see Detainee assessment (the Scribd like embed at the link), page 5).

There are certainly other areas Remes would be interested in discussing and having the freedom to argue to the public on behalf of his client, because that is not only what defense lawyers are supposed to do, but are ethically required to do, in order to provide a zealous representation for their client.

The real extent of the conundrum this places Remes, and similarly situated Gitmo counsel, in is demonstrated by this from the Blog of Legal Times at the National Law Journal:

Remes, the department said, cannot have unrestricted use of the documents that the government refuses to confirm or deny are authentic assessments of detainees. DOJ’s submission (PDF) expands on the scope of the guidance the department issued this month to lawyers in Guantanamo habeas cases.

In court papers, the DOJ theme is clear: the Justice Department over and over refused to confirm or deny that any individual WikiLeaks document is an official government record.

“Unfettered public use, dissemination, or discussion of these documents by cleared counsel could be interpreted as confirmation (or denial) of the documents’ contents by an individual in a position of knowledge, with corresponding harm to national security,” DOJ Civil Division attorney Kristina Wolfe said in court papers.

The government, Wolfe said, cannot acknowledge the authenticity of one document and then refuse to substantiate another document. The “very act of refusal would in effect reveal the information the government seeks to protect—the authenticity of the purportedly classified document,” Wolfe said.

This is beyond absurd, the DOJ is refusing to admit or deny, and is wantonly limiting the ability of lawyers to use, something the entire world is in on. They are treating the information like it is secret material under a Glomar exception to FOIA. And they do not even have the honesty to admit that is what they are doing, probably because an actual Glomar discussion would make them look like idiots. For those unfamiliar with Glomar, here is a description from the recent case of Wilner v. NSA:

The NSA and DOJ served and filed so-called Glomar responses—neither confirming nor denying the existence of such records—pursuant to FOIA Exemptions 1 and 3. Whether, as a general matter, agencies may invoke the Glomar doctrine and whether, in particular, the NSA may invoke the Glomar doctrine in response to a FOIA request for records obtained under the Terrorist Surveillance Program (“TSP”) are both questions of first impression for our Court.

We affirm the judgment of the District Court upholding the NSA’s Glomar response and hold that: (1) a Glomar response is available to agencies as a valid response to FOIA requests; (2) an agency may issue a Glomar response to FOIA requests seeking information obtained pursuant to a “publicly acknowledged” intelligence program such as the TSP, at least when the existence of such information has not already been publicly disclosed; (3) the NSA properly invoked the Glomar doctrine in response to plaintiffs’ request for information pursuant to FOIA Exemption 3; (4) the government’s affidavits sufficiently allege the necessity of a Glomar response in this case, making it unnecessary for us to review or to require the District Court to review ex parte and in camera any classified affidavits that the NSA might proffer in support of its Glomar response; and (5) we find no evidence in the record that the NSA invoked Glomar for the purpose of concealing activities that violate the Constitution or are otherwise illegal. We agree with counsel for all parties that we need not reach the legality of the underlying TSP because that question is outside of the scope of this FOIA action.

And, see, that is what is wrong with this craven charade by the DOJ – the information is about as publicly disclosed and known as could be imaginable under the circumstances. Not to mention that many of the activities the Gitmo Habeas counsel like Remes want to discuss freely are activities that are precisely those that “violate the Constitution or are otherwise illegal”.

The other thing of note, especially to readers of this blog, was the somewhat desperate attempt to distinguish the judgment of Judge Vaughn Walker in al-Haramain v. Bush (see page 7 here) by referring to that part of al-Haramain that discussed not-public classified information instead of the critical part of the opinion that was based on information well within the public sphere, such as the WikiLeaks material now is.

No matter how you look at this attempt to suppress and ignore the WikiLeaks material, it is bizarre and somewhat comical. The WikiLeaks Gitmo Detainee files genie is out of the bottle; it would behoove the US government to join the battle and arguments on the merits and facts instead of trying to cram the genie back in and play hide the bottle.

[Editor’s Note: This post was started by Marcy, but finished by bmaz; so we are both responsible, whether good or bad!]

23 replies
  1. phred says:

    What really depresses me about the Kafkaesque farce that DOJ has become is that you get the feeling lately that they aren’t even really trying anymore. As crappy as Yoo’s reasoning was, you still got the impression that they were sincerely dotting their i’s and crossing their t’s out of concern that one of Addington’s imagined greater forces would indeed make them stop.

    Not anymore. Now this rubbish reads like DOJ can’t be bothered to even make an effort. They know that no one will make them stop. Not the courts. Not Congress. No international forum. No one. There will be no accountability for their shameless lawlessness. So what the hell, just make shit up, call beer-thirty early and head to the pub. Why not? It’s just smoke and mirrors for our shiny new kangaroo courts in Gitmo. It’s not like anyone expects anything other than the predetermined outcome from a rigged process.

  2. radiofreewill says:

    Everything’s fucked-up, and nobody goes to jail…except the suckers.

    At the first sign of an engineered railroading getting shoved through against the facts – like Paracha – I hope all the principled defense counsels will consider resigning en-masse.

    It’s going to take men and women as bent and twisted as all of Bush’s lies that got us into this war in order to pass this charade off as ‘justice.’

  3. DWBartoo says:

    “… it would behoove the US Government to join the battle and arguments on the merits and facts …”

    Why yes it would, especially to avoid taking on the appearance of, how did Marcy/bmaz put it … oh yes, “idiots”.

    Is there any possibility that an officer of the court, say the presiding officer, might care to remind certain of the other officers of the court, who are not officers of the US Government, that the merits and the facts ARE and should be sufficient to the purpose of actual justice.

    Some of the antics of the Obama/Holder DoJ must be, at least, irksome and possibly even approaching “unacceptable” by this time, so far as at least some or a few of those presiding officers must be concerned.

    That the presiding officers of the court MUST be concerned … really matters, and is so, only if that “rule of law” thingie is something that actually is truly valued and is seriously expected to mean anything … along with real, actual “merits and facts” …

    Not much to a legal system otherwise. Except sham and pretense.


    • DWBartoo says:

      Just to complete the final “sentence”: …sham and pretense ad baculum.

      Shall we see?

      We shall see?

      See we shall …

      Could it be


      With a strong whiff of something … else …?

      Imagine the US Government behaving as it properly should.

      What is the proper name for the concerted behaviors which we all can clearly see?


  4. bluewombat says:

    the Justice Department over and over refused to confirm or deny that any individual WikiLeaks document is an official government record

    If they won’t confirm it as a government document, then he should be free to use it. Even if they do confirm it as a government document, he should be free to use it, since it’s now in the public sphere.

  5. marksb says:

    I’ve been reluctant to agree that we have a concerted and coordinated effort to expand the security/police state from the GW/Cheney days, but…damn…what else can we think?

  6. spanishinquisition says:

    “This is beyond absurd, the DOJ is refusing to admit or deny, and limit the ability of lawyers to use, something the entire world is in on”

    If the Obama administration was able to do this, I would think this would have the effect of encouraging leaks by the Obama admin and admins to follow – just leak all the exculpatory evidence in cases, so that way nobody can mount an effective defense.

    • bmaz says:

      Heh, well if you knew what they said to al-Haramain’s attorney, Jon Eisenberg, regarding “The Document” in that case you would understand we are long past that point.

  7. reddog says:

    At risk of redundancy, I’ll say it again. “If there is a law that the judiciary refuses to enforce is it still a law?”

    The collective “We” is truly screwed.

    • bmaz says:

      Technically, the answer is, obviously, yes. There are a myriad of laws that are on the books, in any number of jurisdictions – including Federal – that are not enforced and have not been for years. Yet they are still laws. Until Lawrence v. Texas, this was the status of sodomy laws in a whole lot of states, just to give an example.

  8. klynn says:

    The idiocy of trying to “stuff the genie back in the bottle” is an act of deliberate omission of what is known by the world.

    At this point, we would do a world of good to confront what is known from a national security standpoint. Calling out government lies would not endanger national security but trying to avoid confronting what is known by the world, is essentially a “criminal on the run.” Such an appearance, within our legal system, our DOJ, has created an even greater threat to national security. Now, dictators are able to point to this moment and establish that democracy and rule of law do not work. Try building “free and just societies” around the world with such an example blowing in the global wind.

    Obviously pursuing justice has no grounding in truthful facts or material information and is simply a mastering of “gaming” the moment by manipulating justice to protect power, not a process of upholding truth and justice. In fact, truth and justice should never be used together in a sentence anymore.

      • radiofreewill says:

        We might find out soon enough…

        Our money is backed only by the full faith and credit of the US Government, and nothing else.

        The neocons say they are willing to default on the national debt on August 2nd – a default against trust like that, imvho, will bankrupt the dollar.

        So, talk me out of this hypothesis:

        The neocons gambled everything – everything – and went all-in on their oil-grab in Iraq. It was a high-risk venture in that the invasion depended entirely on smoke-and-mirrors front-end PR – the Big Lie – in the Belief that they were Certain to find WMDs – thereby justifying the Bush Doctrine of ‘strike first’ before they strike you.

        Instead, Bush’s gamble went bust and now he was looking at ‘Aggressive War’ charges for Crimes Against Humanity – if he were to be held responsible for his acts.

        So, to protect themselves – and the neocons operating the fledgling ‘security state’ had every motivation to avoid the gallows for what they had done – the hypothesis is that they built an Insurance Policy by establishing Control Fraud – with the help of the Fed and Wall Street – on the Monetary System – ‘Too Big Too Fail’ they called it – as their ‘nuclear option’ against being held responsible by us, or the world.

        Since then, they’ve systematically stripped the land from the people they bankrupted in the Mortgage Scam in preparation for the coming feudalism. By sharply dividing the populace into ‘haves’ and ‘have-nots’ – with the ‘haves’ dirtying-in to get their spoils – Bush and his neocon cronies can insure that they need never fear being called to account.

        Things aren’t going to get any better for them than they are right now. So, they appear ready to render the money worthless, bankrupt the federal government, and secede from the Union under the guise of States Rights, before a general election that they are likely to lose.

        If so, then we should shortly see the ‘regulators’ riding their horses between plantations at night…

        Sarah Palin is already riding around like Paul Revere…All the gooper candidates – except strawman Mitt – look like they’re jockeying for position in a ‘post-fall’ America – Newt’s calling attention to ‘radical right-wing social engineering’ – End of Collective Bargaining – etc, etc.

        Are the neocons/goopers shooting-the-moon here? Have they bet for them and against US, again?

  9. cobernicus says:

    When I worked for the military-industrial complex, I had access to many US documents our our nuclear subs, all of which were classified. The Russians, however, had published similar data about our subs, which was considered unclassified.

    To classify Russian, or leaked, documents would imply that they were correct. By not doing so, one might conclude that they were erroneous. In this case, one might conclude that they were valid. Without that implication, they could not be used as evidence. Catch-22 rules!

  10. DWBartoo says:

    It is not faith in money that is at issue, the divine right of money is unchallenged, it is the central belief of the day.

    The Powers That Be, the political class as a whole, which includes the fourth estate, and, apparently law schools all over the nation, have “jumped to” the imparative command of the Masters Of The Universe, who have tired of even the sham of a pretend “democracy”, that “something” must be done.

    mizchief has characterized the development of the “philosophy” of limitless greed and total power for the few as the “elaborate masquerade”, which is an apt description of the behavior of the “Best and Brightest” since before the beginning of WWII.

    WWII provided the opportunity, through the use of nuclear weaponry for both expanded, and essentially unchecked, executive or Presidential power and laid the groundwork for the national security state which was brought into full being with the National Security Act of 1947.

    The mask is no longer needed and there is no longer ANY pretense about the goals and aims of those few who actually rule.

    That the public sensibility was lulled, most successfully, with appeals to sybaritic comfort and notions of cultural superiority and myths of inherent “exceptionalism”, has made the task much easier for those who determined to “take over” everything; both politics and finance long ago embraced Machiavellian notions of “pragmatism” and “expediency”.

    A Supreme Court which finds no problem with that particular “marriage”, suggesting that money is speech and that corporations are people too, when most sentient human beings may easily grasp that both are not true, bears more than a little comparison to another Supreme Court which could find or imagine nothing wrong with the “institution” of slavery …

    When the clever, the cunning, and the astute, all lacking in empathy, conscience, and any understanding beyond their own ambitions, are permitted total control, and worshiped for it, then, when the mask is cast off …
    few should be truly surprised to recognize the “endlessly” grinning face of death gazing, sightless, upon the lot of us, utterly deaf to and unmoved by any and all entreaty, reason, and law.

    The master care not a whit what fate befalls anyone but themselves.

    Lady Justice has been savagely beaten and each of the “Coalition’s” “interests” has had their unrestrained and brutal way with her …

    She has been tossed, broken and bleeding, into the gutter.
    While a few of those who abused her, extravagantly exclaim how they very much they love her, and proclaiming their eternal commitment to her, say that they seek her everywhere …

    While the rest of that heartless and selfish clan spread fear and hatred all across the land …

    And too few of the stunned and appalled many dare yet call it treason, this criminal enterprize which constitutes the direst, and, apparently, most successful, overpowering of truth and of justice which this nation and this society have ever faced.

    The vast majority who live in this nation and comprise the largest portion of its society have still to comprehend what has actually happened.

    America has been broken, utterly and completely, it is well beyond simple fixes or repairs.

    The outrages will continue, escalating in number, severity, and extent.

    Remarkably like “events” resulting from climate “change” …

    Until ……?


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