Category Archives: Department of Justice

How the FBI and the press attempted to destroy an innocent man

The one thing we know about President Obama’s view of the war on terrorism is that he doesn’t like the name. But when it comes to one of the longest running and unresolved debates — whether counter-terrorism is a law enforcement or a military issue — it’s unclear how far the current president departs, if at all, from his predecessor.

For Obama or anyone else considering that question, the case of the anthrax attacks in 2001 is instructive and if it is possible to deduce a “lesson learned” from this, it may well be that, as this administration demonstrates with some frequency, it is much easier to kill terrorist suspects than determine their guilt.

In the account laid out in by David Freed in The Atlantic, it appears that the United States Government with the willing assistance of the American media, when unable to prove that the American research scientist, Dr Steven J Hatfill, had any role whatsoever in the anthrax attacks, concluded that if under relentless pressure he eventually committed suicide, then his death could be regarded as an admission of guilt and the case could be closed.

The FBI’s efforts, if not by the letter of the law then at least in spirit, fall little short of attempted murder. The press were fully complicit in this exercise.

“I was a guy who trusted the government,” [Hatfill] says. “Now, I don’t trust a damn thing they do.” He trusts reporters even less, dismissing them as little more than lapdogs for law enforcement.

The media’s general willingness to report what was spoon-fed to them, in an effort to reassure a frightened public that an arrest was not far off, is somewhat understandable considering the level of fear that gripped the nation following 9/11. But that doesn’t “justify the sliming of Steven Hatfill,” says Edward Wasserman, who is the Knight Professor of Journalism Ethics at Washington and Lee University, in Virginia. “If anything, it’s a reminder that an unquestioning media serves as a potential lever of power to be activated by the government, almost at will.”

In February 2008, Reggie B. Walton, the U.S. District Court judge presiding over Hatfill’s case against the government, announced that he had reviewed secret internal memos on the status of the FBI’s investigation and could find “not a scintilla of evidence that would indicate that Dr. Hatfill had anything to do with” the anthrax attacks.

Four months later, the Justice Department quietly settled with Hatfill for $5.82 million. “It allowed Doc to start over,” Connolly, his lawyer, says.

For Hatfill, rebuilding remains painful and slow. He enters post offices only if he absolutely must, careful to show his face to surveillance cameras so that he can’t be accused of mailing letters surreptitiously. He tries to document his whereabouts at all times, in case he should ever need an alibi. He is permanently damaged, Hatfill says. Yet he still professes to love America. “My country didn’t do this to me,” he is quick to point out. “A bloated, incompetent bureaucracy and a broken press did. I wouldn’t be doing what I’m doing today if I didn’t still love my country.”

Much of Hatfill’s time these days is devoted to teaching life-saving medical techniques to military personnel bound for combat. They are his “band of brothers,” and the hours he spends with them, Hatfill says, are among his happiest. He also serves as an adjunct associate professor of emergency medicine at George Washington University.

Then there is his boat.

Hatfill has committed $1.5 million to building his floating genetic laboratory, a futuristic-looking vessel replete with a helicopter, an operating room to treat rural indigenous peoples, and a Cordon Bleu–trained chef. Hatfill intends to assemble a scientific team and cruise the Amazon for undiscovered or little-known plants and animals. From these organisms, he hopes to develop new medications for leukemia, and for tuberculosis and other diseases that have been growing increasingly resistant to existing antibiotics. Any useful treatments, he says, will be licensed to pharmaceutical companies on the condition that developing nations receive them at cost. Hatfill hopes to christen the boat within two years. Scientists at USAMRIID, where the FBI once suspected him of stealing anthrax, have expressed tentative interest in helping him mount his expedition.

In addition to suing the Justice Department for violating his privacy and The New York Times for defaming him, Hatfill also brought a libel lawsuit against Don Foster, Vanity Fair, and Reader’s Digest, which had reprinted Foster’s article. The lawsuit led to a settlement whose dollar amount all parties have agreed to keep confidential. The news media, which had for so long savaged Hatfill, dutifully reported his legal victories, but from where he stands, that hardly balanced things on the ledger sheet of journalistic fairness.

Three weeks after the FBI exonerated Hatfill, in the summer of 2008, Nicholas Kristof apologized to him in The New York Times for any distress his columns may have caused. The role of the news media, Kristof wrote on August 28, is “to afflict the comfortable and comfort the afflicted. Instead, I managed to afflict the afflicted.”

Many others who raised critical questions about Hatfill have remained silent in the wake of his exoneration. Barbara Hatch Rosenberg, the molecular biologist who spurred the FBI to pursue Hatfill, retired two years ago. Through a former colleague, she declined to be interviewed for this article. Jim Stewart, the television correspondent whose report compared Hatfill to Al Capone, left CBS in 2006. Stewart admitted in a deposition to having relied, for his report, on four confidential FBI sources. When I reached the former newsman at his home in Florida, Stewart said he couldn’t talk about Hatfill because he was entertaining houseguests. When I asked when might be a good time to call back, he said, “There isn’t a good time,” and hung up.

“The entire unhappy episode” is how Don Foster, the Vassar professor who wrote the Vanity Fair article, sums up Hatfill’s story and his own role in it. Foster says he no longer consults for the FBI. “The anthrax case was it for me,” he told me recently. “I’m happier teaching. Like Steven Hatfill, I would prefer to be a private person.”

Foster says he never intended to imply that Hatfill was a murderer, yet continues to stand by his reporting as “inaccurate in only minor details.” I asked if he had any regrets about what he’d written.

“On what grounds?” he asked.

“The heartache it caused Hatfill. The heartache it caused you and Vanity Fair.”

Foster pondered the question, then said, “I don’t know Steven Hatfill. I don’t know his heartache. But anytime an American citizen, a journalist, a scientist, a scholar, is made the object of unfair or inaccurate public scrutiny, it’s unfortunate. It’s part of a free press to set that right.”

This past February, the Justice Department formally closed its investigation of the 2001 anthrax attacks, releasing more than 2,500 pages of documents, many of them heavily redacted, buttressing the government’s assertion that Bruce Ivins was solely responsible for the anthrax letters.

When I asked FBI spokesperson Debra Weierman how much money had been spent chasing Hatfill, she said the bureau was unable to provide such an accounting. She would neither confirm nor deny that the FBI ever opened any administrative inquiries into the news leaks that had defamed him. The FBI, she said, was unwilling to publicly discuss Hatfill in any capacity, “out of privacy considerations for Dr. Hatfill.” Weierman referred me instead to what she described as an “abundance of information” on the FBI’s Web site.

Information about the anthrax case is indeed abundant on the bureau’s Web site, with dozens of documents touting the FBI’s efforts to solve the murders. Included is a transcript of a press conference held in August 2008, a month after Ivins’s suicide, in which federal authorities initially laid out the evidence they had amassed against him. But beyond a handful of questions asked by reporters that day, in which his last name is repeatedly misspelled, and a few scant paragraphs in the 96-page executive summary of the case, there is no mention anywhere on the FBI’s Web site of Steven Hatfill.

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The president’s conscience, on hold

Dan Froomkin writes:

The White House counsel ideally serves as the president’s conscience.

But late last year, Barack Obama’s conscience was surgically removed.

Greg Craig, as Obama’s top lawyer, was the point man on a number of hot-button issues, the fieriest being how to close the prison at Guantanamo Bay. Craig argued for holding fast to the principles that Obama outlined before he became president, regardless of the immediate political consequences — an idealistic approach that, in a White House filled with increasingly pusillanimous pragmatists, earned him some powerful enemies.

After a steady drip of leaks over a period of months to the Washington Post, the New York Times, the Wall Street Journal and other news outlets to the effect that his days were numbered, Craig finally resigned in November.

He was replaced by Robert Bauer, a politically adept consummate Washington insider whose expertise is in campaign finance law — in short, a man whose job is to win elections, not defend principles.

At the same time, Attorney General Eric Holder has been increasingly marginalized and cut out of the White House decision-making loop. So now the coast is clear for the White House to make important legal and national security calls on purely political grounds.

The only question that remains is whether Obama himself will have any last-minute qualms about turning his back on his own principles.

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A trial for Saddam and a bomb for bin Laden

The Associated Press reports:

Attorney General Eric Holder told Congress on Tuesday that Osama bin Laden will never face trial in the United States because he will not be captured alive.

In testy exchanges with House Republicans, the attorney general compared terrorists to mass murderer Charles Manson and predicted that events would ensure “we will be reading Miranda rights to the corpse of Osama bin Laden” not to the al-Qaida leader as a captive.

Holder sternly rejected criticism from GOP members of a House Appropriations subcommittee, who contend it is too dangerous to put terror suspects on trial in federal civilian courts as Holder has proposed.

Unless my memory fails me, there was no outrage expressed in Congress when Saddam Hussein was captured, rather than given a summary execution. Nor were there howls of protest when he was imprisoned without torture and treated humanely. Nor were there huge objections against him going through a criminal trial. This for a man widely understood to have been responsible for the deaths of tens of thousands of Iraqis.

And let’s not forget, throughout the time Saddam was being hunted down he was presented as a greater threat to the world than Osama bin Laden.

Do American lawmakers have such little faith in the law they make or in the judicial system that applies that law, that they regard the United States legal system as too feeble an entity to justly handle the fate of one man — even a man given mythical proportions of Osama bin Laden?

As John Brennan — Assistant to the President and Deputy National Security Advisor for Homeland Security and Counterterrorism — pointed out last month, “Terrorists are not 100-feet tall. Nor do they deserve the abject fear they seek to instill.”

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The reconstruction blame game

At Mother Jones, Daniel Schulman writes:

After years of a US presence in Iraq and Afghanistan, rebuilding and stabilization projects remain disjointed and chaotic, resulting in wasted taxpayer dollars and, potentially, the deaths of soldiers and civilians. Meanwhile, the nearly six-year-old State Department office that was supposed to coordinate these efforts isn’t even fully operational. And for that, according to the official who heads the division, Sen. Tom Coburn (R-Okla.) is partly to blame.

As the Obama administration surges soldiers and civilians into Afghanistan, the State Department’s Office of the Coordinator for Reconstruction and Stabilization (known as S/CRS) is a key player in synchronizing the alphabet soup of agencies and divisions involved in the effort. But its effectiveness has come under fire—from Stuart Bowen, the Special Inspector General for Iraq Reconstruction and from members of the congressionally chartered Commission on Wartime Contracting. On Monday, the commission held a hearing on coordination failures and grilled officials from the Pentagon, the US Agency for International Development, and the State Department on their teamwork. Not masking his anger, Chris Shays, the panel’s co-chair and a former Republican congressman from Connecticut, laid out the stakes: “The lack of coordination costs billions and billions and billions of dollars—huge waste, which means that we don’t optimize the dollars that we spend. It also results in the loss of lives in our military, the loss of lives in our diplomatic corps, the loss lives of our civil servants, the loss of lives of our contractors…It’s a huge, huge issue.”

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Incompetent McCarthyism and shared beliefs

Scott Horton takes on the neocon campaign against a group of lawyers, now working for the Obama Administration, who “voluntarily represented terrorists.”

…the incompetent McCarthyites haven’t done their homework. On a list of lawyers in recent government service who have served alleged terrorists, the first name might be Michael Chertoff’s. Chertoff served as counsel to Magdy El-Amir, a man identified as a leading Al Qaeda fundraiser in North America. Chertoff went on to head the criminal division at Justice and then to become secretary of Homeland Security. There is no hint that his ties to El-Amir in any way influenced Chertoff in his duties in the Bush Administration, nor would any reasonable person suspect that they would. The list would also include Michael Mukasey, Bush’s last attorney general, whose law firm had an active pro bono program writing appeals briefs in support of the Guantánamo inmates on constitutional issues, and Rudy Giuliani, whose firm was and is also engaged in representing Gitmo prisoners. It therefore came as no surprise when leading Republican lawyers quickly came out attacking the Cheney-Kristol-Goldfarb project as “shameful.”

But the question that Liz Cheney asks is an appropriate one. “Whose values do they share?” Perhaps it’s the values of John Adams. After the Boston Massacre, when revolutionary sentiment was flaring, Adams stood up to represent the British soldiers accused of slaughtering his fellow Bostonians in a criminal trial, and he helped them beat the rap. Most of his fellow citizens were dumbstruck by his decision, but at the end of a long life, looking back, Adams decided that this was “one of the best Pieces of Service I ever rendered my Country.” It’s the values of Kenneth Royall, the JAG colonel who defended a group of accused German saboteurs during World War II, bringing their appeal to the Supreme Court against the wishes of his commander-in-chief. Royall’s brilliant defense got him a promotion to brigadier general, and it later helped drive President Truman’s decision to name him the last American secretary of war. Vigorous defense of even the meanest person accused is an essential part of our democracy and our notions of justice—but it’s not a value that is shared by Liz Cheney.

Whose values does Liz Cheney share? Look at the nations around the world in which criminal defense counsel are harassed and persecuted. Look at Putin’s Russia and the case of Sergei Magnitsky, or Mugabe’s Zimbabwe and the case of Beatrice Mtetwa. Perhaps it is in countries like Russia and Zimbabwe that Liz Cheney and her Weekly Standard friends might find governments that share their values.

Meanwhile, the ACLU ran an ad in the New York Times on Sunday, calling on President Obama not to reverse his administration’s decision to prosecute the 9/11 suspects in civilian courts.

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Obama advisers set to recommend military tribunals for alleged 9/11 plotters

The Washington Post reports:

President Obama’s advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal, administration officials said, a step that would reverse Attorney General Eric H. Holder Jr.’s plan to try him in civilian court in New York City.

The president’s advisers feel increasingly hemmed in by bipartisan opposition to a federal trial in New York and demands, mainly from Republicans, that Mohammed and his accused co-conspirators remain under military jurisdiction, officials said. While Obama has favored trying some terrorism suspects in civilian courts as a symbol of U.S. commitment to the rule of law, critics have said military tribunals are the appropriate venue for those accused of attacking the United States.

Scott Horton comments:

In sharp violation of rules of prosecutorial conduct and ethics, political figures in the White House are engaged in the micromanagement of decisions concerning the prosecution of individual criminal defendants. Rahm Emanuel is a political figure, without any serious legal expertise or abilities. He openly presented the question as a matter of political opportunity—thereby infecting the criminal justice system with political horse-trading. This is more than just unseemly. It presents a direct affront to the integrity of the criminal justice system. After eight years in which Karl Rove manipulated essential prosecutorial decisions at Justice, now his successor is engaged in the same type of misconduct. But unlike Rove, Emanuel does it openly.

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The new McCarthyism

In The American Prospect, Adam Serwer writes:

The “Gitmo Nine” aren’t terrorists. They weren’t captured fighting for the Taliban. They’ve made no attempts to kill Americans. They haven’t declared war on the United States, nor have they joined any group that has. The “Gitmo Nine” are lawyers working in the Department of Justice who fought the Bush administration’s treatment of suspected terrorists as unconstitutional. Now, conservatives are portraying them as agents of the enemy.

In the aftermath of September 11, the Bush administration tried to set up a military-commissions system to try suspected terrorists. The commissions offered few due process rights, denied the accused access to the evidence against them, and allowed the admission of hearsay — and even evidence gained through coercion or abuse. The Bush administration also sought to prevent detainees from challenging their detention in court. Conservatives argued that the nature of the war on terrorism justified the assertion of greater executive power. In case after case, the U.S. Supreme Court sided with the administration’s critics.

“These lawyers were advocating on behalf of our Constitution and our laws. The detention policies of the Bush administration were unconstitutional and illegal, and no higher a legal authority than the Supreme Court of the United States agreed,” says Ken Gude, a human-rights expert with the Center for American Progress, of the recent assault on the Justice Department. “The disgusting logic of these attacks is that the Supreme Court is in league with al-Qaeda.”

The New York Times reports:

A former Justice Department official who led the Bush administration’s courtroom defense against lawsuits filed by Guantanamo detainees is denouncing attacks on Obama administration appointees who previously helped such prisoners challenge their indefinite detention without trial.

Peter D. Keisler, who was assistant attorney general for the civil division in the Bush administration, said in an interview that it was “wrong” to attack lawyers who volunteered to help such lawsuits before joining the Justice Department.

“There is a longstanding and very honorable tradition of lawyers representing unpopular or controversial clients,” Mr. Keisler said. “The fact that someone has acted within that tradition, as many lawyers, civilian and military, have done with respect to people who are accused of terrorism – that should never be a basis for suggesting that they are unfit in any way to serve in the Department of Justice.”

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Twenty-seven years of solitary confinement

In the United States it isn’t just suspected terrorists who are subject to cruel and unusual punishment. The case of Tommy Silverstein highlights the extremes that can be found inside the largest prison system in the world:

Tommy Silverstein has been held in solitary confinement for the past 27 years, longer than anyone else in the federal prison system, his lawyers say.

He is locked up at the high-security prison in Florence, Colorado, known as Supermax. The lights are always on. Guards who slip him food through a slot in his cell door usually ignore him. A few times a week, he is permitted to exercise in the recreation room — alone. Visits with his family and his lawyers are conducted through Plexiglas.

Silverstein’s isolation is the result of an unusual no-human-contact order issued by a judge in 1983, after he murdered a guard at the federal prison in Marion, Illinois. Marion was known at the time as the most rigorous confinement in the federal prison system.

Silverstein has referred to his solitary existence as “a slow, constant peeling of the skin.”

His attorneys, who are affiliated with the University of Denver, filed a lawsuit against the U.S. Bureau of Prisons in 2007, alleging that such prison conditions violate the cruel and unusual punishment clause of the Eighth Amendment. The lawsuit, filed in the federal district court of Colorado, is awaiting trial.

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The Dubai-Payoneer connection

As I noted below, the New York-based company Payoneer is linked to Israel in a number of ways, not least through it’s Israeli CEO, Yuval Tal, a former member of an elite combat unit of the Israel Defense Forces and former Vice President of Business Development for the Tel Aviv-based technology company, Radware. Tal describes how Payoneer operates in this video.

As Clayton Swisher notes:

Mr Tal did not exactly conceal his prior affiliations when he appeared on Fox News during the 2006 Lebanon war. He opined then that “this is a war that Israel cannot afford to lose”.

If Tal or his Payoneer firm are in any way involved in the conspiracy to help a foreign intelligence service (like, say providing Mossad operatives with credit cards), he may soon find himself in his own battle with little prospects of winning – in a US courtroom.

The Federal Bureau of Investigation (FBI) is the lead agency with statutory authority and responsibilities for investigating foreign espionage activities on US soil. It’s a job they take seriously and with a proven record of not shying away from the numerous instances when America’s special ally played foul.

As an initial inquiry, I imagine case agents will subpoena all financial records associated with the fraudulently issued credit cards. This would include the original credit card applications, which requires such things as a delivery address (to mail the card to), social security numbers, dates of birth, and employment information.

If the applications were made on paper, then the documents may contain all manner of evidence, from handwriting samples to fingerprints. There will be a similar trail to pore over if the applications were made over the phone or electronically via computer.

I also smell money laundering, as the money was supposedly dumped into prepaid accounts to conceal its purpose and origination. So US investigators may even want to tap in on the US treasury department’s crack financial investigator, Financial Crimes Enforcement Network (FINCEN).

Beneath an article about Payoneer appearing at TechCrunch, a commenter suggests: “payoneer is definitely in the legal gray area when it comes to the patriot’s act, anti-money laundering, and a host of other laws around ‘know your customer'”
Tal answers:

Payoneer is meticulously compliant with all federal, state and MasterCard regulations, including AML, BSA, Patriot act, KYC etc. There is nothing grey about it. As a certified MasterCard Member Service Provider we undergo rigorous ongoing diligence related, among others, to our regulatory compliance level.

If Payoneer comes under investigation, the FBI and US government regulatory agencies will not simply take Tal at his word. They will want to know exactly how Payoneer cards could be used by individuals with false identification.

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Are we living in the post-moral age?

Rafi Eitan, an Israeli elder statesman and former intelligence officer is perhaps best known for having led the Mossad operation that captured Adolf Eichmann, architect of the Holocaust, and brought him back to face trial and execution in Israel in 1962.

In an interview with Haaretz this week, Eitan summed up the Zeitgeist in which we live — the Israelification of the Western world which unfolded after 9/11:

… when there is a war on terror you conduct it without principles. You simply fight it.

President Bush, with his Manichaean view of the world, wanted to paint his war on terror in quasi-moral terms. President Obama has distilled it to its unprincipled essence.

The arc that has led from twisted morality to a rarefied amorality reached its completion point this week when the Obama administration made its determination that the authors of the former administration’s torture policies had done no more than make an error of judgment.

Newsweek reports:

The chief author of the Bush administration’s “torture memo” told Justice Department investigators that the president’s war-making authority was so broad that he had the constitutional power to order a village to be “massacred,” according to a report by released Friday night by the Office of Professional Responsibility.

The views of former Justice lawyer John Yoo were deemed to be so extreme and out of step with legal precedents that they prompted the Justice Department’s internal watchdog office to conclude last year that he committed “intentional professional misconduct” when he advised the CIA it could proceed with waterboarding and other aggressive interrogation techniques against Al Qaeda suspects.

The report by OPR concludes that Yoo, now a Berkeley law professor, and his boss at the time, Jay Bybee, now a federal judge, should be referred to their state bar associations for possible disciplinary proceedings. But, as first reported by NEWSWEEK, another senior department lawyer, David Margolis, reviewed the report and last month overruled its findings on the grounds that there was no clear and “unambiguous” standard by which OPR was judging the lawyers. Instead, Margolis, who was the final decision-maker in the inquiry, found that they were guilty of only “poor judgment.”

The report, more than four years in the making, is filled with new details into how a small group of lawyers at the Justice Department, the CIA, and the White House crafted the legal arguments that gave the green light to some of the most controversial tactics in the Bush administration’s war on terror. They also describe how Bush administration officials were so worried about the prospect that CIA officers might be criminally prosecuted for torture that one senior official—Attorney General John Ashcroft—even suggested that President Bush issue “advance pardons” for those engaging in waterboarding, a proposal that he was quickly told was not possible.

At the core of the legal arguments were the views of Yoo, strongly backed by David Addington, Vice President Dick Cheney’s legal counsel, that the president’s wartime powers were essentially unlimited and included the authority to override laws passed by Congress, such as a statute banning the use of torture. Pressed on his views in an interview with OPR investigators, Yoo was asked:

“What about ordering a village of resistants to be massacred? … Is that a power that the president could legally—”

“Yeah,” Yoo replied, according to a partial transcript included in the report. “Although, let me say this: So, certainly, that would fall within the commander-in-chief’s power over tactical decisions.”

“To order a village of civilians to be [exterminated]?” the OPR investigator asked again.

“Sure,” said Yoo.

Yoo is depicted as the driving force behind an Aug. 1, 2002, Justice Department memo that narrowly defined torture and then added sections concluding that, in the end, it essentially didn’t matter what the fine print of the congressionally passed law said: The president’s authority superseded the law and CIA officers who might later be accused of torture could also argue that were acting in “self defense” in order to save American lives.

Where does Obama stand?

“I’m a strong believer that it’s important to look forward and not backwards, and to remind ourselves that we do have very real security threats out there.”

Terrorism — even if this administration thinks the term is passé — remains the only reality. Obama’s cynical mastery rests in his ability to sustain the terror zeitgeist without using the word.

Principles? They’re a distraction — a preoccupation and an indulgence for those of us little folks who do not daily wrestle with the moral ambiguity of governance.

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‘When Guantanamo walked in the door, Rahm walked out’

In her New Yorker piece on Attorney General Eric Holder and the Khalid Sheikh Mohammed trial, Jane Mayer describes White House Chief of Staff, Rahm Emanuel’s role in blocking the investigation of torture by the CIA:

Emanuel viewed many of the legal problems that [Greg] Craig [Obama’s first White House counsel] and Holder were immersed in as distractions. “When Guantánamo walked in the door, Rahm walked out,” the informed source said. Holder and Emanuel had been collegial since their Clinton Administration days. Holder’s wife, Sharon Malone, an obstetrician, had delivered one of Emanuel’s children. But Emanuel adamantly opposed a number of Holder’s decisions, including one that widened the scope of a special counsel who had begun investigating the C.I.A.’s interrogation program. Bush had appointed the special counsel, John Durham, to assess whether the C.I.A. had obstructed justice when it destroyed videotapes documenting waterboarding sessions. Holder authorized Durham to determine whether the agency’s abuse of detainees had itself violated laws. Emanuel worried that such investigations would alienate the intelligence community. But Holder, who had studied law at Columbia with Telford Taylor, the chief American prosecutor in the Nuremberg trials, was profoundly upset after seeing classified documents explicitly describing C.I.A. prisoner abuse. The United Nations Convention Against Torture requires the U.S. to investigate credible torture allegations. Holder felt that, as the top law-enforcement officer in the U.S., he had to do something.

Emanuel couldn’t complain directly to Holder without violating strictures against political interference in prosecutorial decisions. But he conveyed his unhappiness to Holder indirectly, two sources said. Emanuel demanded, “Didn’t he get the memo that we’re not re-litigating the past?”

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The Siddiqui conviction: A verdict ‘based on fear, not on fact’

It should go without saying but yet again needs to be repeated: in an effective justice system, justice not only must be done but it must be seen to be done. In this respect the trial of Dr Aafia Siddiqui, which ended in New York on Wednesday was a miserable failure.

Although most Americans haven’t even heard the name of this MIT-trained neuroscientist, Dr Siddiqui’s case has captured the attention of much of her native Pakistan. Her conviction on two counts of attempted murder quickly led Pakistan’s President Asif Ali Zardari to direct his government to offer her legal assistance.

AP reported:

Pakistanis shouted anti-American slogans and burned the Stars and Stripes on Thursday in protest of a New York jury’s conviction of a Pakistani woman accused of trying to kill Americans while detained in Afghanistan.

The protests drew thousands in at least four cities, demonstrating the widespread distrust, and even hatred, of the U.S. in this country whose cooperation Washington needs to stabilize neighboring Afghanistan.

The New York Times said:

Defense lawyers argued that an absence of bullets, casings or residue from the M4 [– the rifle allegedly snatched and fired by the accused –] suggested it had not been shot. They used a video to show that two holes in a wall supposedly caused by the M4 had been there before July 18 [the date of the alleged crime].

They also pointed out inconsistencies in the testimony from the nine government witnesses, who at times gave conflicting accounts of how many people were in the room, where they were sitting or standing and how many shots were fired.

Ms. Siddiqui’s lawyers said they had not decided whether to appeal. They suggested that prosecutors had played to New Yorkers’ anxieties about terror attacks.

“This is not a just and right verdict,” Elaine Sharp, one of Ms. Siddiqui’s lawyers, said outside the courtroom. “In my opinion this was based on fear but not fact.”

If the views of jurors were shaped by irrational fears, it seems as though Judge Richard M. Berman suffered the same frailty. Far from recognizing that the conduct of the trial had wider implications for the relations between the US and Pakistan, so-called security considerations meant that journalists with the least interest in covering the case had the best access while those with the greatest interest weren’t allowed into the court room.

As Petra Bartosiewicz reported for Time magazine early in the proceedings:

[Dr Siddiqui’s] case has been major news in much of the Muslim world — and a crush of journalists from Pakistan have been struggling to gain access to a trial hemmed in by security-conscious New York City officials. How the foreign press is able to follow the court proceedings — and thus perceive the fairness of the trial — will have an impact on upcoming high-profile terrorism trials like that of Khalid Sheikh Mohammed and four other suspected 9/11 plotters, likely to be held in the same courthouse as the Siddiqui case.

“If we were able to file a transcript of the proceedings they’d probably print it,” Iftikhar Ali, a reporter with the Associated Press of Pakistan, said of the Siddiqui trial. “That’s how much interest there is in this case.” But Ali, like many other reporters from overseas, has been hampered in gaining access to the live proceedings. Journalists from Pakistan on assigment in New York have been largely excluded from the courtroom. Because of tight restrictions observed by the presiding Judge Richard Berman, not a single Pakistani reporter had been granted a press credential when opening statements began on Tuesday. They were instead sent to an overflow courtroom to watch the proceedings via video link.

In the overflow room this week I met journalists from Pakistan with United Nations and U.S. State Department issued press credentials. They work for some of the biggest outlets in their countries, including BBC Urdu, the Associated Press in Pakistan, Jang, Dawn, Geo and Haj TV. None were issued credentials for the trial, though some had applied weeks ago. We watched the proceedings on a flat screen television. The view didn’t include any of the exhibits being offered into evidence, among them multiple diagrams of the scene of the shooting and incriminating documents allegedly written by Siddiqui. At one point a key government eyewitness stepped off the witness stand and out of range of both the camera and microphone to use a visual aid to demonstrate where he was during the shooting. He was permitted to give much of his testimony off camera.

Ali, who has been at the court every day of the trial — including jury selection — was granted access to the main courtroom for about five minutes on the first day, but was escorted out when court security guards realized he was not on the list of approved media. At the time the only other occupants of the four-row press box, which covers half the available seating in the courtroom with room for about 20 individuals, were one each from the The New York Times, The New York Post and the New York Daily News. The court has officially recognized only media who carry New York Police Department issued press passes, traditionally reserved for reporters who regularly cover crime scenes and certain public events in the city. Out of the approximately 30 such individuals from U.S. news outlets who were eligible to attend the trial, most were not present for opening statements.

“We’ve been coming to all the pretrial hearings and we were never told there was going to be a different system for the trial. We were told the press will be allowed,” Ayesha Tanzeem, a journalist with Voice of America Urdu said. After TIME made inquiries on Thursday, individuals in the overflow room, including the Pakistani journalists, were for the first time ushered into the main courtroom during the afternoon session. But with the exception of a BBC Urdu reporter and a Samaa TV reporter who received official passes, none have been granted a press credential that would guarantee them a seat on future days.

The decision to accept solely the NYPD pass for the Siddiqui trial came from the judge’s chambers, says Elly Harrold of the District Executive’s office, the administrative arm at the federal courthouse. “Of course there are exceptions,” Harrold said, “but I’m not at liberty to discuss that.”

Although Siddiqui is not charged with any terrorism-related crime, security concerns are paramount though the procedures seem to be unevenly enforced. During the lunch break on the first day of the Siddiqui trial a group of Muslim men praying in the waiting areas outside the courtroom were afterwards asked to leave the floor. That prevented them from securing a place in line for the afternoon session. Several Muslim women in hijabs were also given similar instructions, but others in the same area, dressed in business attire, including this reporter, were permitted to stay. On the second day of the trial metal detectors were posted outside the courtroom and individuals were asked for photo identification and their names and addresses were logged by court security officers. At the close of proceedings on Thursday defense attorney Charles Swift protested the practice. “The suggestion is that the gallery may be a threat,” said Swift, calling the measure “highly prejudicial.”

If Charles Swift sounds like a familiar name it’s because he has the rare distinction of having stood up and successfully defended his country while its Constitution faced attack from the Bush administration. In Hamdan vs Rumsfeld, Swift won a major victory for the rule of law.

The case of Dr Siddiqui exposes a moral fallacy that has haunted America throughout the war on terrorism. It is this: that injustice is something that can only be done to the innocent.

We have abandoned what used to be the universally recognized foundation of a just legal system: that it treats the guilty and the innocent with fairness and impartiality.

—

(For fascinating background on the Siddiqui case, read Declan Walsh’s November 2009 report in The Guardian.)

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Intelligence chief says FBI was too hasty in handling of attempted bombing

Intelligence chief says FBI was too hasty in handling of attempted bombing
By Spencer S. Hsu and Jennifer Agiesta, Washington Post, January 21, 2010

The man accused of trying to blow up a U.S. airliner on Christmas Day should have been interrogated by special terrorism investigators instead of FBI agents, the nation’s intelligence chief said Wednesday, adding that senior national security officials were not consulted before FBI and Justice Department authorities questioned him and pursued criminal charges.

Director of National Intelligence Dennis C. Blair faulted the decision not to use the “High Value Interrogation Group” (HIG) to question alleged al-Qaeda operative Umar Farouk Abdulmutallab.

“That unit was created exactly for this purpose — to make a decision on whether a certain person who’s detained should be treated as a case for federal prosecution or for some of the other means,” Blair told the Senate homeland security committee.

The intelligence chief said the interrogation group was created by the White House last year to handle overseas cases but will be expanded now to domestic ones. “We did not invoke the HIG in this case; we should have,” he added.

Blair amended his remarks later in written statements, acknowledging that the interrogation group is not “fully operational.” However, he maintained, “There should be a decision process right at the outset as to the balance between intelligence-gathering and evidence for prosecution.” [continued…]

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FBI broke law for years in phone record searches

FBI broke law for years in phone record searches
By John Solomon and Carrie Johnson, Washington Post, January 19, 2010

The FBI illegally collected more than 2,000 U.S. telephone call records between 2002 and 2006 by invoking terrorism emergencies that did not exist or simply persuading phone companies to provide records, according to internal bureau memos and interviews. FBI officials issued approvals after the fact to justify their actions.

E-mails obtained by The Washington Post detail how counterterrorism officials inside FBI headquarters did not follow their own procedures that were put in place to protect civil liberties. The stream of urgent requests for phone records also overwhelmed the FBI communications analysis unit with work that ultimately was not connected to imminent threats.

A Justice Department inspector general’s report due out this month is expected to conclude that the FBI frequently violated the law with its emergency requests, bureau officials confirmed. [continued…]

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Dr Aafia Siddiqui goes on trial

Dr Aafia Siddiqui goes on trial
By Paul Woodward, The National, January 19, 2010

As Dr Aafia Siddiqui goes on trial in a federal court in New York City her case is unknown to most Americans yet in her native Pakistan the frail neuroscientist, mother of three and reputed al Qa’eda associate has become a cause célèbre.

Last week Pakistan’s Prime Minister Yousuf Raza Gilani said that he had been in direct communication with Pakistan’s mission in the United States for the provision of all possible assistance and cooperation for her release, News International reported. He said that the government had also engaged lawyers to defend her in the court.

At a pre-trial hearing last week the defence team rejected the charge of shooting at FBI agents since there were no fingerprints or other forensic evidence that she even picked up the gun, the Associated Press of Pakistan reported. “We’re not saying she did it in self-defence. We’re not saying it was an accident. We’re saying she simply did not do it,’ defence attorney Linda Moreno told US District Judge Richard Berman.

In The Guardian, Decan Walsh told the story whose plausibility will be weighed in the Manhattan courtroom. [continued…]

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Muslims say FBI tactics sow anger and fear

Muslims say FBI tactics sow anger and fear
By Paul Vitello and Kirk Semple, New York Times, December 18, 2009

The anxiety and anger have been building all year. In March, a national coalition of Islamic organizations warned that it would cease cooperating with the F.B.I. unless the agency stopped infiltrating mosques and using “agents provocateurs to trap unsuspecting Muslim youth.”

In September, a cleric in Bay Ridge, Brooklyn, sued the government, claiming that the F.B.I. had threatened to scuttle his application for a green card unless he agreed to spy on relatives overseas — echoing similar claims made in recent court cases in California, Florida and Massachusetts.

And last month, after an imam in Queens was charged with aiding what the authorities called a bomb-making plot, a group of South Asian Muslims there began compiling a database of complaints about their brushes with counterterrorism investigators.

Since the terror attacks of 2001, the F.B.I. and Muslim and Arab-American leaders across the country have worked to build a relationship of trust, sharing information both to fight terrorism and to protect the interests of mosques and communities.

But those relations have reached a low point in recent months, many Muslim leaders say. Several high-profile cases in which informers have infiltrated mosques and helped promote plots, they say, have sown a corrosive fear among their people that F.B.I. informers are everywhere, listening. [continued…]

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The mystery of Dr Aafia Siddiqui

The mystery of Dr Aafia Siddiqui
By Declan Walsh, The Guardian, November 24, 2009

In a hot summer morning 18 months ago a team of four Americans – two FBI agents and two army officers – rolled into Ghazni, a dusty town 50 miles south of Kabul. They had come to interview two unusual prisoners: a woman in a burka and her 11-year-old son, arrested the day before.

Afghan police accused the mysterious pair of being suicide bombers. What interested the Americans, though, was what they were carrying: notes about a “mass casualty attack” in the US on targets including the Statue of Liberty and a collection of jars and bottles containing “chemical and gel substances”.

At the town police station the Americans were directed into a room where, unknown to them, the woman was waiting behind a long yellow curtain. One soldier sat down, laying his M-4 rifle by his foot, next to the curtain. Moments later it twitched back.

The woman was standing there, pointing the officer’s gun at his head. A translator lunged at her, but too late. She fired twice, shouting “Get the fuck out of here!” and “Allahu Akbar!” Nobody was hit. As the translator wrestled with the woman, the second soldier drew his pistol and fired, hitting her in the abdomen. She went down, still kicking and shouting that she wanted “to kill Americans”. Then she passed out.

Whether this extraordinary scene is fiction or reality will soon be decided thousands of miles from Ghazni in a Manhattan courtroom. The woman is Dr Aafia Siddiqui, a Pakistani neuroscientist and mother of three. The description of the shooting, in July 2008, comes from the prosecution case, which Siddiqui disputes. What isn’t in doubt is that there was an incident, and that she was shot, after which she was helicoptered to Bagram air field where medics cut her open from breastplate to bellybutton, searching for bullets. Medical records show she barely survived. Seventeen days later, still recovering, she was bundled on to an FBI jet and flown to New York where she now faces seven counts of assault and attempted murder. If convicted, the maximum sentence is life in prison. [continued…]

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Charges detail road to terror for 20 in U.S.

Charges detail road to terror for 20 in U.S.
By Andrea Elliot, New York Times, November 24, 2009

Federal officials on Monday unsealed terrorism-related charges against men they say were key actors in a recruitment effort that led roughly 20 young Americans to join a violent insurgent group in Somalia with ties to Al Qaeda.

With eight new suspects charged Monday, the authorities have implicated 14 people in the case, one of the most extensive domestic terrorism investigations since the Sept. 11 attacks. Some of them have been arrested; others are at large, including several believed to be still fighting with the Somali group, Al Shabab.

The case represents the largest group of American citizens suspected of joining an extremist movement affiliated with Al Qaeda, senior officials said. Many of the recruits had come to America as young refugees fleeing a brutal civil war, only to settle in a gang-ridden enclave of Minneapolis. [continued…]

Editor’s Comment — “one of the most extensive domestic terrorism investigations since the Sept. 11 attacks” — “the largest group of American citizens suspected of joining an extremist movement affiliated with Al Qaeda”…

Wow! This has to be a landmark event in the war on terrorism! The high-fives must really have been thrown around at the FBI after cracking open a major operation like this. Not another embarrassing headline like this one from a few months ago: “FBI ‘lured dimwits’ into terror plot.”

Except… “Domestic terrorism investigations” seems like a bit of a stretch. The closest this report gets to suggesting that any of these young Somali Americans were intent on engaging in an act of domestic terrorism is to say: “Law enforcement officials are concerned that the recruits, who hold American passports, could be commissioned to return to the United States to carry out attacks here, though so far there is no evidence of such plots.”

Al Shabab might be labeled a terrorist organization and it might have ties to al Qaeda, but make no mistake: it is fighting a real war with conventional war-ambitions — the conquest of territory. Al Shabab wants to control Somalia. It’s hard to imagine how sponsoring acts of terrorism elsewhere would further that strategic goal.

Should we be concerned that American kids are being enticed into a desperate and bloody conflict far away? Certainly.

But maybe that concern should not be restricted to the fate of kids at risk in Minneapolis. Maybe it should also include kids in New York and elsewhere who are being recruited to serve in the Israeli Defense Force.

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