Get Caught in a Sting, Get Thrown Out of the USA, Get Gagged about It

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I suggested last month that the Liberty City Seven indictment looks more and more like a made for TV event, particularly after a mistrial was declared and one of the Seven, Lyglenson Lemorin, was acquitted of all charges. Well, now Lemorin is undergoing his own little Orwellian hell.

On the day of his acquittal, the judge in the case issued an oral gag order pertaining to the upcoming retrial of the remaining six defendants.

A federal judge on Friday aired serious concerns about the possibility of jury tampering in the upcoming retrial of an alleged homegrown terrorism group and ordered that Miami-Dade jurors be selected anonymously for the high-profile case.

[snip]

Her order — an edict normally seen in organized crime or major drug cases — means that potentially hundreds of Miami-Dade voters who receive jury summonses for the retrial in January will be referred to by number, not by name. Jurors’ names were known to both sides in the first trial.

The judge also ordered U.S. marshals to provide criminal background checks on all prospective jurors for both sides, and to escort those chosen for the 12-member panel to and from the courthouse in downtown Miami.

”I do find there is a strong reason to believe the jury needs protection,” Lenard said. “Here we have defendants accused of being members of a terrorist cell.”

No such precautions were taken during the first trial, which ended Dec. 13 in a mistrial for six defendants of the so-called Liberty City 7.

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Bhutto

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Given my well-known complaint with those who have long underplayed the importance of Pakistan in our foreign policy debates, I feel like I have to say something about Bhutto’s assassination. But so far, the most intelligent thing I’ve seen written on Pakistan comes from AmericaBlog’s AJ:

The first thing to say about Bhutto’s assassination is that any kind of rush to judgment, especially along the lines of impending doom, is probably imprudent.

Unless Musharraf planned this assassination as part of a larger campaign to reimpose his power, I would imagine things are–and will remain–in a state of flux for some time. If Musharraf didn’t plan it, only sort of allowed it to happen with inadequate security, and instead Islamic extremists pulled it off, then Musharraf himself may be subject to a lot more pressure from those extremists. But we don’t know–and I’m not convinced we’ll really know for sure for some time, if ever.

And while AJ warns against seeing this as a collapse into anarchy, it seems clear that Bhutto’s assassination devastates our Pakistan policy. Here’s AJ again:

In terms of policy implications, this is reflective of a massive US foreign policy blunder, in that the Bush administration, in a monumentally stupid move, shoved Bhutto down the throat of Musharraf (and the rest of Pakistan) as a savior, despite her lack of broad popular support and general reputation as corrupt. In making someone who didn’t necessarily have the ability to deliver the savior for democracy in Pakistan, we simultaneously set up our own policy to fail and offered Musharraf a return to (or continued) total power in the event that our little power-sharing arrangement didn’t work. We also — though not only us — painted a big fat target on her back. Really a debacle all the way around.

And here’s Robin Wright and Glenn Kessler in the WaPo: Read more →

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The Terror–Or Maybe Something Else–Presidency

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I just finished Jack Goldsmith’s The Terror Presidency. As I’ve been reading, I’ve been focusing primarily on the insight it might offer onto the Terror Tape Destruction. I’ll come back to this, but the short version is that, from June 2004 to December 2004, the CIA had no legal cover for the water-boarding they had already done, which explains why they’d want to destroy the evidence they had been doing it; but that still doesn’t explain why they’d wait until November 2005 to destroy the tapes, which seems to be the really pressing question right now.

But I appreciated Goldsmith’s book, too, for the way that reading an intelligent and sincere conservative helps me to see my disagreements with conservatives more clearly.

While I was reading the book, I found myself repeatedly bugged by several of Goldsmith’s blind spots, not least for his explanation that the excesses of the Administration are attributable to the accountability a President has and the fear everyone had of another terrorist attack.

The main explanation is fear. When the original opinion [on torture] was written in the weeks before the first anniversary of 9/11, threat reports were pulsing as they hadn’t since 9/11. … "We were sure there would be bodies in the streets" on September 11, 2002, a high-level Justice Department official later told me. Counterterrorism officials were terrified by a possible follow-up attack on the 9/11 anniversary, and desperate to stop it.

[snip]

I have been critical of my predecessors’ actions in writing the interrogation opinions. But I was not there when they made the hard calls during the frightening summer of 2002. Instead, I surveyed the scene from the politically changed and always-more-lucid after-the-fact perspective. When I made tough calls in crisis situations under pressure and uncertainty, I realized that my decisions too would not be judged from the perspective of threat and danger in which they were taken. … Recognizing this, I often found myself praying that I would predict the future correctly.

Now, much as I respect Goldsmith’s intelligence, I’m convinced he conjures this explanation as a way to understand how someone like David Addington could be shredding the Constitution, but be doing it in good faith. It’s all understandable and desirable, Goldsmith seems to be saying, in that it will keep us safe in the long run. And David Addington means well, really he does. Read more →

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The “Other” Provision Of The Records Act

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It appears the fluid and constantly evolving rationalization of the Bush Administration for their destruction of the torture tapes may be starting to congeal in an operative theory relying, at least in significant part, on a provision of the Federal Records Act allowing destruction of certain records located outside of the United States during wartime. As EW pointed out in the last post, this defense was revealed in Isikoff’s December 21, 2007 Newsweek article:

But agency officials could be relying on another provision of the records law that permits an agency, during wartime, to destroy records outside the continental United States that are judged to be "prejudicial to the interests of the United States." The CIA has argued that one reason for destroying the tapes was that agency officials feared that if the videotapes were leaked they might compromise the identity of the CIA interrogators.

It is certainly a relief that we don’t have some sort of rogue Administration running around destroying evidence material to a whole plethora of cases and forums, and that their decision was fully in compliance with United States law. That law would be the Federal Records Act, and the pertinent provision, as codified in 36 CFR Part 1228, reads:

a) Destruction of records outside the territorial limits of the continental United States is authorized whenever, during a state of war between the United States and any other nation or when hostile action by a foreign power appears imminent, the head of the agency that has custody of the records determines that their retention would be prejudicial to the interest of the United States, or that they occupy space urgently needed for military purposes and are without sufficient administrative, legal, research, or other value to warrant their continued preservation (44 U.S.C. 3311).

(b) Within 6 months after the destruction of any records under this authorization, a written statement describing the character of the records and showing when and where the disposal was accomplished shall be submitted to NARA (NWML) by the agency official who directed the disposal. (ed. note: see also 44 U.S.C. 3311).

Well, hold on a minute here. Is that their final answer? Of course it’s not their final answer; there is never a final answer, on anything, with the Bush Administration; just a continuing series of intentionally disingenuous obfuscations. It takes no more than a cursory inspection of the foreign war records exception to expect Read more →

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The Wheels Of Justice

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Top of the morning to one and all. As Marcy and family hit the road on their much delayed Christmas expedition, it occurs to me that it is time to grease the wheels of justice and get them rolling down the road of accountability. EW and Mad Dog are right about the implications of the new AP article. The collective insight and wisdom of the community are doing a wonderful job of dissecting the situation. I would like to highlight a couple of the angles that have been raised, and ask that you consider them, and the torture tape situation as a whole, in a broader context.

But no David Addington. Funny. Who would have thought that Addington would be the one lawyer who–at least thus far–doesn’t appear in records as having objected to the destruction of the tapes?
….
No mention of Negroponte, who apparently advised strongly against the destruction in 2005, when he was DNI (and presumably should have had significant sway over the decision). Hey Silvestre Reyes! Didn’t you get Isioff’s telegram?

These are not mere "administration officials"; with the exception of Cheney and Bush, they are as high as you go. Negroponte is DNI and Addington, despite his putative position as Cheney’s counsel/chief of staff, is the legal heart and soul of the Bush Administration. Toss in Gonzales, Miers and Bellinger, and there is simply no viable way to argue that "the White House", did not know about, and was not involved in, the intentional spoiling and destruction of material evidence; which, of course, means direct obstruction of justice.

“CIA Director Michael V. Hayden told lawmakers privately last week that three White House lawyers were briefed in 2004 about the existence of videotapes showing the interrogation of two al-Qaeda figures, and they urged the agency to be “cautious” about destroying the tapes, according to sources familiar with his classified testimony.”

To me, that sounds like they were briefed and urged the agency to be careful about destroying the tapes. In other words, destroy them, but be really careful how you do it. JMHO

LS’s take here is just about right I should think. Ralphbon’s response is dead on the money too.

For those who didn’t see it, ther (almost) consensus from the panel was:
1) that there was no way Mukasey could avoid conflict of interest because he had signed the material witness warrant for Jose Padilla that Read more →

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“Aspirational Terrorism” Won’t Send You to Jail, But It’ll Lead the News

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The St. Petersburg Times has a good review not just of the mistrial for the Liberty City Seven, but of the larger context of failed terrorist prosecutions.

Another highly touted federal terrorism case ended in a mistrial Thursday.

After listening to more than two months of testimony and deliberating for nine days, a Miami jury deadlocked on charges against six men accused of pledging allegiance to al-Qaida in a plot to blow up the Sears Tower in Chicago. A seventh man was acquitted.

[snip]

With no guilty verdicts, the Liberty City Seven join about a dozen other terrorism defendants around the country who have been prosecuted since the Sept. 11 attacks in costly cases that resulted in acquittals and mistrials.

Joshua Dratel asks what I consider the money question: is this really the way we should be spending our time? Read more →

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Does this Sound Familiar?

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Where have we seen this before: a Bush Administration gives vague guidance to our favored military dictator in a turbulent neighborhood, and the dictator takes a step that might destabilize the whole region.

The Bush Administration knew that Pakistani strongman PervezMusharraf planned to institute emergency rule but did not act or speakout about the plan, according to officials with knowledge of thediscussion who spoke anonymously in Friday’s Wall Street Journal.

"In the days before the Nov. 3 announcement, the general’s aides andadvisers forewarned U.S. diplomats in a series of meetings inIslamabad, according to Pakistani and U.S. officials," the paper said.

Because the US response was "muted," Pakistan interpreted Americansilence as a green light to instituting martial law, quickly deposingan intransigent Supreme Court, which had ruled against the general inthe past.

"One of Gen. Musharraf’s closest advisers said U.S. criticism wasmuted, which some senior Pakistanis interpreted as a sign they couldproceed," the Journal said. "’You don’t like that option? Yougive us one,’ the adviser says he told his American interlocutors.’There were no good options.’"

A U.S. official "familiar with the discussions" told the paper thetalks were part of "’intensive efforts’ to dissuade Gen. Musharraf fromdeclaring a state of emergency."

"There was never a green light," the U.S. official told the New York daily. [my emphasis]

Of course, when we offered such vague guidance to Saddam Hussein in July Read more →

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Will Luis Posada Face Justice?

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Back in May, a judge dismissed immigration charges against Cuban terrorist Luis Posada Carriles, arguing he had been tricked in the interview that led to his indictment. At the time, it looked like BushCo threw the case, not wanting to convict one of their favored terrorists.

But now, two of his associates have pled guilty to charges of obstruction of justice in connection with his case.

Two associates of Cuban exile Luis Posada Carriles have pleadedguilty in the Western District of Texas to charges of obstruction of justice inconnection with the U.S. government�s investigation of Posada Carriles, MichaelJ. Mullaney, Acting U.S. Attorney for the Western District of Texas announcedtoday.

Osvaldo Mitat, age 65 and Santiago Alvarez, age 66, both natives of Cuba, eachentered pleas of guilty today to a one-count superseding criminal informationthat charged each defendant with obstruction of justice. The plea occurredbefore U.S. District Judge David Briones. Each defendant faces a maximumsentence of 10 years imprisonment, a fine of $250,000, three years supervisedrelease and a $100 special assessment. Sentencing for both has been scheduledfor Feb. 1, 2008.

According to the statement of facts agreed upon by each defendant, on or aboutDec. 18, 2006, a federal grand jury in the Western District of Read more →

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No, Pakistan Was the Last Big Test. And We Failed It.

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"Serious Person" Michael O’Hanlon and  escalation surge architect Fred Kagan end their op-ed with the following words.

There was a time when volatility in places like Pakistan was mostly ahumanitarian worry; today it is as much a threat to our basic securityas Soviet tanks once were. We must be militarily and diplomaticallyprepared to keep ourselves safe in such a world. Pakistan may be thenext big test. [my emphasis]

I’m just a DFH and not a "serious person" or anything. But I am certain they have this wrong–dead wrong. It highlights the problem of neoconservatism–an acute myopia that therefore cannot see a problem until we’re already in the thick of it and until they can make an argument–however specious–that the only solution is military.

The way in which O’Hanlon and Kagan conceive of Pakistan "becoming the next big test" is the perfect illustration of this. They describe the events that need to occur for them to take some action–and of course, action is exclusively military.

AS the government of Pakistan totters, we must face a fact: the UnitedStates simply could not stand by as a nuclear-armed Pakistan descendedinto the abyss. Nor would it be strategically prudent to withdraw ourforces from an improving situation in Iraq Read more →

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More on the FBI’s Own Falafel

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There’s a bit of a squabble over how important Nada Nadim Prouty, the FBI/CIA agent who got unauthorized access to Hezbollah information at the CIA, was to the agency. Via Laura, NBC reports that she was very important.

Current and former intelligence officials tellNBC News that Nada Nadim Prouty had a much bigger role than officialsat the FBI and CIA first acknowledged. In fact, Prouty was assigned tothe CIA’s most sensitive post, Baghdad, and participated in thedebriefings of high-ranking al-Qaida detainees.

Aformer colleague called Prouty “among the best and the brightest” CIAofficers in Baghdad. She was so exceptional, agree officials of bothagencies, the CIA recruited her from the FBI to work for the agency’sclandestine service at Langley, Va., in June 2003. She then went toIraq for the agency to work with the U.S. military on the debriefings.

“Early on, she was an active agent in the debriefings,” said one former intelligence official. “It was more than translation.”

But the same story has a senior official reporting that she wasn’t that important.

A senior U.S. official familiar with the casesays there is no evidence she was a spy and noted that the CIA and FBIhave a good record in prosecuting spies, particularly in their ownagencies. Read more →

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