The case of Matt DeHart, a former U.S. drone pilot turned hacktivist, is as strange as it is disturbing. The 29-year-old was recently denied asylum in Canada, having fled there with his family after — he claims — he was drugged and tortured by agents of the FBI, who accused him of espionage and child pornography.
Prosecutors have shown they’re willing to say anything to convict a hacktivist, even if it means lying
Last week the Canadian Border Services Agency said he will be deported to the U.S. to stand trial “in very short order,” after a Canadian Immigration and Refugee Board ruling earlier this month denying his request for refugee status. He is being denied access to two thumb drives that he says contain evidence of illegal acts perpetrated by a U.S. government agency. Now after three unsuccessful attempts to gain political asylum, he fears that he and the files will be delivered to the very government he sought to escape.
“I cannot imagine any life in a country which has already tortured me,” Matt DeHart told reporter Adrian Humphreys, whose astonishing five-part series in Canada’s National Postdocuments the bizarre case. “Am I now to be given into the hands of my torturers?”
It’s tempting to dismiss DeHart’s claims based on their sheer outlandishness and his equally outlandish attempts to defect to Russia and Venezuela, which he now says he regrets. But given President Barack Obama’s administration’s penchant for punishing hacktivists and whistleblowers, a disturbing decades-long trend of prosecutorial misconduct and the now established fact that the U.S. has, as Obama put it, “tortured some folks,” it’s clear that the U.S. government’s claims in this case warrant even more skepticism.
Matt DeHart
According to government documents, Matt DeHart admitted during an interrogation to becoming involved with a spy ring during his time as a drone pilot, agreeing to broker the sale of military secrets for up to $100,000 per month through a Russian agent in Canada. But he claims he was being drugged and tortured and simply made the story up.
“I would have told them anything,” he told The National Post of his encounter with the FBI agents, during which he was denied a lawyer. “Information that is derived from torture — to use it against somebody is ridiculous. It’s garbage. I already said it’s not true.”
He testified that the agents admitted the child porn charges were fabricated — a ruse to enable investigation into his involvement with the nebulous hacktivist collective Anonymous. He says the investigation stems from a file he uploaded twice to a hidden website, hosted on the anonymous Tor network from a server in his parents’ house. DeHart claims it contained evidence of government wrongdoing, “an FBI investigation into the [CIA’s] practices.” Screen shots of the WikiLeaks website found on his computer suggest he intended to send the file to the whistleblowing organization.
After the asylum ruling earlier this month, three courts — two in the U.S. and one in Canada — have expressed strong doubts about the child pornography charges that triggered a search warrant onMatt DeHart’s parents’ home in the U.S. Those accusations date to 2008 and stemmed from his association with two teenagers while playing the online game “World of Warcraft,” one of whom was also involved with Anonymous; the charges were ultimately not proved.
After DeHart was arrested while crossing from Canada to the U.S. in 2010, a judge in Bangor, Maine, found it odd that prosecutors were suddenly citing the two-year-old porn accusations and that police hadn’t analyzed Matt DeHart computers for illicit files seven months after they were seized. A judge in Tennessee, where Matt DeHart ‘s family lived before moving to Canada, admitted that “the weight of the evidence is not as firm as I thought it was.” And most recently, the Canadian Immigration and Refugee Board concluded there was “no credible or trustworthy evidence” that DeHart had solicited child porn.
Prosecutorial misconduct helps the government railroad journalists, whistleblowers, hacktivists and any who dare to speak truth to power.
To be sure, Matt DeHart strange behavior throughout this ordeal doesn’t place him in a particularly flattering light. But it’s worth noting that these kinds of serious accusations are often made in cases against hacktivists and whistleblowers, helping place them in the government’s crosshairs and paint them as nefarious even when the accusations are easily disproved.
Barrett Brown, a journalist who investigated links between the U.S. government and private intelligence contractors, had all manner of ridiculous false accusations thrown at him before being sentenced last month to five and a half years in prison. He was initially charged for the innocuous act of copying and pasting a hyperlink to a public file stolen by Anonymous from one chat room into another. The charge was dropped, but the linking was still used to increase the length of his sentence, despite the fact that prosecutors had no evidence Brown had looked at the file or even known what was in it.
At one point, prosecutors claimed that Brown conspired with members of Anonymous to overthrow the U.S. government. They also accused him of participating in “SWATting,” the practice of making fake 911 calls to harass people in their homes, and even of plotting with another journalist to hack the Bahraini government. Not one of these claims was supported by the voluminous collection of chat logs that the government provided as evidence. Nor did additional logs obtained by The Daily Dot, which the prosecution had withheld under seal.
Brown was not entirely without fault in the case, having obstructed a search warrant and posted a YouTube video threatening an FBI agent in response to the seizure of his laptops. But in retrospect, it seems clear the impetus for the case was that the government saw Brown’s investigations as a threat and would say anything to guarantee his conviction, even if that meant knowingly making false statements. As Brown put it during his allocution, “This is not the rule of law … It is the rule of law enforcement.”
Close scrutiny
What can we expect from the Matt DeHart case if this is the prosecutorial legacy it follows?
As The New York Times editorial board recently noted, defendants have no recourse when police and prosecutors lie, cheat and conceal evidence in the courtroom, leading to what one federal judge has described (PDF) as a national epidemic of prosecutorial misconduct. Sometimes it leads to wrongful convictions. Other times, as in Brown’s case, it helps the government railroad journalists, whistleblowers, hacktivists and any who dare to speak truth to power.
Remember Aaron Swartz, an information activist who prosecutors pursued vigorously for the act of downloading too many academic articles from an MIT library? Much like in Brown’s case, prosecutors were accused of withholding evidence and coercing Swartz into taking a guilty plea. Swartz committed suicide in 2013 amid mounting legal costs and the possibility of up to 35 years in prison, triggering the DeHarts’ decision to flee the country.
“Aaron Swartz had very similar psychological makeup, similar age, same circumstances as Matt DeHart,” DeHart’s father, Paul DeHart, a retired U.S. Air Force major, told The National Post. “I do not want to wake up one day and find my son hanging from a rope in the garage of our house. And I have noplace to go to bring this to anyone’s attention.”
With Matt DeHart’s attempted defections and other erratic behavior, it’s admittedly difficult to determine where his true intentions lie. But the government’s actions against him have been just as sketchy, if not more so. His claims must be taken seriously, and his case should be closely scrutinized, lest another potential whistleblower fall prey to the state’s merciless war on leaks.
by Joshua Kopstein, a cyberculture journalist and researcher from New York City. His work focuses on Internet law and disorder, surveillance and government secrecy.
The Big Story Torture Everyone Is Missing Senate Torture Report
While the torture report released by the Senate Intelligence Committee is very important, it doesn’t address the big scoop regarding torture.
Instead, it is the Senate Armed ServicesCommittee’s report that dropped the big bombshell regarding the U.S. torture program.
Senator Levin, commenting on a Armed Services Committee’s report on torture in 2009, explained:
The techniques are based on tactics used by Chinese Communists against American soldiers during the Korean War for the purpose of eliciting FALSE confessions for propaganda purposes. Techniques used in SERE training include stripping trainees of their clothing, placing them in stress positions, putting hoods over their heads, subjecting them to face and body slaps, depriving them of sleep, throwing them up against a wall, confining them in a small box, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures [and] waterboarding.
Former senior U.S. intelligence official familiar with the interrogation issue said that Cheney and former Defense Secretary Donald H. Rumsfeld demanded that the interrogators find evidence of al Qaida-Iraq collaboration…
For most of 2002 and into 2003, Cheney and Rumsfeld, especially, were also demanding proof of the links between al Qaida and Iraq that (former Iraqi exile leader Ahmed) Chalabi and others had told them were there.”
It was during this period that CIA interrogators waterboarded two alleged top al Qaida detainees repeatedly — Abu Zubaydah at least 83 times in August 2002 and Khalid Sheik Muhammed 183 times in March 2003 — according to a newly released Justice Department document…
When people kept coming up empty, they were told by Cheney’s and Rumsfeld’s people to push harder,” he continued.” Cheney’s and Rumsfeld’s people were told repeatedly, by CIA . . . and by others, that there wasn’t any reliable intelligence that pointed to operational ties between bin Laden and Saddam . . .
A former U.S. Army psychiatrist, Maj. Charles Burney, told Army investigators in 2006 thatinterrogators at the Guantanamo Bay, Cuba, detention facility were under “pressure” to produce evidence of ties between al Qaida and Iraq.
“While we were there a large part of the time we were focused on trying to establish a link between al Qaida and Iraq and we were not successful in establishing a link between al Qaida and Iraq,” Burney told staff of the Army Inspector General. “The more frustrated people got in not being able to establish that link . . . there was more and more pressure to resort to measures that might produce more immediate results.”
“I think it’s obvious that the administration was scrambling then to try to find a connection, a link (between al Qaida and Iraq),” [Senator] Levin said in a conference call with reporters. “They made out links where they didn’t exist.”
Levin recalled Cheney’s assertions that a senior Iraqi intelligence officer had met Mohammad Atta, the leader of the 9/11 hijackers, in the Czech Republic capital of Prague just months before the attacks on the World Trade Center and the Pentagon.
The FBI and CIA found that no such meeting occurred.
Despite what you’ve seen on TV, torture is really only good at one thing: eliciting false confessions. Indeed, Bush-era torture techniques, we now know, were cold-bloodedly modeled after methods used by Chinese Communists to extract confessions from captured U.S. servicemen that they could then use for propaganda during the Korean War.
So as shocking as the latest revelation in a new Senate Armed Services Committee report may be, it actually makes sense — in a nauseating way. The White House started pushing the use of torture not when faced with a “ticking time bomb” scenario from terrorists, but whenofficials in 2002 were desperately casting about for ways to tie Iraq to the 9/11 attacks — in order to strengthen their public case for invading a country that had nothing to do with 9/11 at all.
***
Gordon Trowbridge writes for the Detroit News: “Senior Bush administration officials pushed for the use of abusive interrogations of terrorism detainees in part to seek evidence to justify the invasion of Iraq, according to newly declassified information discovered in a congressional probe.
Colin Powell’s former chief of staff (Colonel Larry Wilkerson) wrote in 2009 that the Bush administration’s “principal priority for intelligence was not aimed at pre-empting another terrorist attack on the U.S. but discovering a smoking gun linking Iraq and al-Qaeda.”
Indeed, one of the two senior instructors from the Air Force team which taught U.S. servicemen how to resist torture by foreign governments when used to extract false confessions has blown the whistle on the true purpose behind the U.S. torture program.
[Torture architect] Jessen’s notes were provided to Truthout by retired Air Force Capt. Michael Kearns, a “master” SERE instructor and decorated veteran who has previously held high-ranking positions within the Air Force Headquarters Staff and Department of Defense (DoD).
***
The Jessen notes clearly state the totality of what was being reverse-engineered – not just ‘enhanced interrogation techniques,’ but an entire program of exploitation of prisoners using torture as a central pillar,” he said. “What I think is important to note, as an ex-SERE Resistance to Interrogation instructor, is the focus of Jessen’s instruction. It is EXPLOITATION, not specifically interrogation. And this is not a picayune issue, because if one were to ‘reverse-engineer’ a course on resistance to exploitation then what one would get is a plan to exploit prisoners, not interrogate them. The CIA/DoD torture program appears to have the same goals as the terrorist organizations or enemy governments for which SV-91 and other SERE courses were created to defend against: the full exploitation of the prisoner in his intelligence, propaganda, or other needs held by the detaining power, such as the recruitment of informers and double agents. Those aspects of the US detainee program have not generally been discussed as part of the torture story in the American press.”
Air Force Col. Steven Kleinman, a career military intelligence officer recognized as one of the DOD’s most effective interrogators as well a former SERE instructor and director of intelligence for JPRA’s teaching academy, said …. “This is the guidebook to getting false confessions, a system drawn specifically from the communist interrogation model that was used to generate propaganda rather than intelligence” …. “If your goal is to obtain useful and reliable information this is not the source book you should be using.”
Much of the 9/11 Commission Report was based upon the testimony of people who were tortured
At least four of the people whose interrogation figured in the 9/11 Commission Report have claimed that they told interrogators information as a way to stop being “tortured.”
The 9/11 Commission itself doubted the accuracy of the torture confessions, and yet kept their doubts to themselves
Today, Raymond McGovern – a 27-year CIA veteran, who chaired National Intelligence Estimates and personally delivered intelligence briefings to Presidents Ronald Reagan and George H.W. Bush, their Vice Presidents, Secretaries of State, the Joint Chiefs of Staff, and many other senior government officials –provides details about one torture victim (Al-Libi) at former Newsweek and AP reporter Robert Parry’s website:
But if it’s bad intelligence you’re after, torture works like a charm. If, for example, you wish to “prove,” post 9/11, that “evil dictator” Saddam Hussein was in league with al-Qaeda and might arm the terrorists with WMD, bring on the torturers.
It is a highly cynical and extremely sad story, but many Bush administration policymakers wanted to invade Iraq before 9/11 and thus were determined to connect Saddam Hussein to those attacks. The PR push began in September 2002 – or as Bush’s chief of staff Andrew Card put it, “From a marketing point of view, you don’t introduce new products in August.”
By March 2003 – after months of relentless “marketing” – almost 70 percent of Americans had been persuaded that Saddam Hussein was involved in some way with the attacks of 9/11.
The case of Ibn al-Sheikh al-Libi, a low-level al-Qaeda operative, is illustrative of how this process worked. Born in Libya in 1963, al-Libi ran an al-Qaeda training camp in Afghanistan from 1995 to 2000. He was detained in Pakistan on Nov. 11, 2001, and then sent to a U.S. detention facility in Kandahar, Afghanistan. He was deemed a prize catch, since it was thought he would know of any Iraqi training of al-Qaeda.
The CIA successfully fought off the FBI for first rights to interrogate al-Libi. FBI’s Dan Coleman, who “lost” al-Libi to the CIA (at whose orders, I wonder?), said, “Administration officials were always pushing us to come up with links” between Iraq and al-Qaeda.
CIA interrogators elicited some “cooperation” from al-Libi through a combination of rough treatment and threats that he would be turned over to Egyptian intelligence with even greater experience in the torture business.
By June 2002, al-Libi had told the CIA that Iraq had “provided” unspecified chemical and biological weapons training for two al-Qaeda operatives, an allegation that soon found its way into other U.S. intelligence reports. Al-Libi’s treatment improved as he expanded on his tales about collaboration between al-Qaeda and Iraq, adding that three al-Qaeda operatives had gone to Iraq “to learn about nuclear weapons.”
Al-Libi’s claim was well received at the White House even though the Defense Intelligence Agency was suspicious.
“He lacks specific details” about the supposed training, the DIA observed. “It is possible he does not know any further details; it is more likely this individual is intentionally misleading the debriefers. Ibn al-Shaykh has been undergoing debriefs for several weeks and may be describing scenarios to the debriefers that he knows will retain their interest.”
Meanwhile, at the Guantanamo Bay prison in Cuba, Maj. Paul Burney, a psychiatrist sent there in summer 2002, told the Senate, “A large part of the time we were focused on trying to establish a link between al-Qaeda and Iraq and we were not successful. The more frustrated people got in not being able to establish that link … there was more and more pressure to resort to measures that might produce more immediate results.”
***
President Bush relied on al-Libi’s false Iraq allegation for a major speech in Cincinnati on Oct. 7, 2002, just a few days before Congress voted on the Iraq War resolution. Bush declared, “We’ve learned that Iraq has trained al-Qaeda members in bomb making and poisons and deadly gases.”
And Colin Powell relied on it for his famous speech to the United Nations on Feb. 5, 2003, declaring: “I can trace the story of a senior terrorist operative telling how Iraq provided training in these [chemical and biological] weapons to al-Qaeda. Fortunately, this operative is now detained, and he has told his story.”
Al-Libi’s “evidence” helped Powell as he sought support for what he ended up calling a “sinister nexus” between Iraq and al-Qaeda, in the general effort to justify invading Iraq.
For a while, al-Libi was practically the poster boy for the success of the Cheney/Bush torture regime; that is, until he publicly recanted and explained that he only told his interrogators what he thought would stop the torture.
You see, despite his cooperation, al-Libi was still shipped to Egypt where he underwent more abuse, according to a declassified CIA cable from early 2004 when al-Libi recanted his earlier statements. The cable reported that al-Libi said Egyptian interrogators wanted information about al-Qaeda’s connections with Iraq, a subject “about which [al-Libi] said he knew nothing and had difficulty even coming up with a story.”
According to the CIA cable, al-Libi said his interrogators did not like his responses and “placed him in a small box” for about 17 hours. After he was let out of the box, al-Libi was given a last chance to “tell the truth.” When his answers still did not satisfy, al-Libi says he “was knocked over with an arm thrust across his chest and fell on his back” and then was “punched for 15 minutes.”
After Al-Libi recanted, the CIA recalled all intelligence reports based on his statements, a fact recorded in a footnote to the report issued by the 9/11 Commission. By then, however, the Bush administration had gotten its way regarding the invasion of Iraq and the disastrous U.S. occupation was well underway.
***
Intensive investigations into these allegations – after the U.S. military had conquered Iraq – failed to turn up any credible evidence to corroborate these allegations. What we do know is that Saddam Hussein and Osama bin Laden were bitter enemies, with al-Qaeda considering the secular Hussein an apostate to Islam.
Al-Libi, who ended up in prison in Libya, reportedly committed suicide shortly after he was discovered there by a human rights organization. Thus, the world never got to hear his own account of the torture that he experienced and the story that he presented and then recanted.
Hafed al-Ghwell, a Libyan-American and a prominent critic of Muammar Gaddafi’s regime at the time of al-Libi’s death, explained to Newsweek, “This idea of committing suicide in your prison cell is an old story in Libya.”
Paul Krugman eloquently summarized the truth about the torture used:
Let’s say this slowly: the Bush administration wanted to use 9/11 as a pretext to invade Iraq, even though Iraq had nothing to do with 9/11. So it tortured people to make them confess to the nonexistent link.
There’s a word for this: it’s evil.
Torture Program Was Part of a Con Job
As discussed above, in order to “justify” the Iraq war, top Bush administration officials pushed and insisted that interrogators use special torture methods aimed at extracting false confessions to attempt to create a false linkage between between Al Qaida and Iraq. And see this and this.
And at 2:40 p.m. on September 11th, in a memorandum of discussions between top administration officials, several lines below the statement “judge whether good enough [to] hit S.H. [that is, Saddam Hussein] at same time”, is the statement “Hard to get a good case.” In other words, top officials knew that there wasn’t a good case that Hussein was behind 9/11, but they wanted to use the 9/11 attacks as an excuse to justify war with Iraq anyway.
(2) acting pursuant to the Constitution and Public Law 107-243 is consistent with the United States and other countries continuing to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.
Therefore, the Bush administration expressly justified the Iraq war to Congress by representing that Iraq planned, authorized, committed, or aided the 9/11 attacks.
Indeed, Pulitzer prize-winning journalist Ron Suskind reports that the White House ordered the CIA to forge and backdate a document falsely linking Iraq with Muslim terrorists and 9/11 … and that theCIA complied with those instructions and in fact created the forgery, which was then used to justify war against Iraq. And see this.
Suskind also revealed that “Bush administration had information from a top Iraqi intelligence official ‘that there were no weapons of mass destruction in Iraq – intelligence they received in plenty of time to stop an invasion.’ ”
Cheney made the false linkage between Iraq and 9/11 on many occasions.
For example, according to Raw Story, Cheney was still alleging a connection between Iraq and the alleged lead 9/11 hijacker in September 2003 – a year after it had been widely debunked. When NBC’s Tim Russert asked him about a poll showing that 69% of Americans believed Saddam Hussein had been involved in 9/11, Cheney replied:
It’s not surprising that people make that connection.
And even after the 9/11 Commission debunked any connection, Cheney said that the evidence is “overwhelming” that al Qaeda had a relationship with Saddam Hussein’s regime , that Cheney “probably” had information unavailable to the Commission, and that the media was not ‘doing their homework’ in reporting such ties.
Again, the Bush administration expressly justified the Iraq war by representing that Iraq planned, authorized, committed, or aided the 9/11 attacks. See this, this, this.
Former Treasury Secretary Paul O’Neill – who sat on the National Security Council – also says that Bush planned the Iraq war before 9/11.
Top British officials say that the U.S. discussed Iraq regime change even before Bush took office.
And in 2000, Cheney said a Bush administration might “have to take military action to forcibly remove Saddam from power.” And see this.
The administration’s false claims about Saddam and 9/11 helped convince a large portion of the American public to support the invasion of Iraq. While the focus now may be on false WMD claims, it is important to remember that, at the time, the alleged link between Iraq and 9/11 was at least as important in many people’s mind as a reason to invade Iraq.
So the torture program was really all about “justifying” the ultimate war crime: launching an unnecessary war of aggression based upon false pretenses.
Postscript: It is beyond any real dispute that torture does not work to produce any useful, truthfulintelligence. Today, the following question made it to the front page of Reddit:
Why would the CIA torture if torture “doesn’t work”? Wouldn’t they want the most effective tool to gather intelligence?
The Senate Armed Services Committee report gave the answer.
CIA Torture Pseudonyms Update: The “Associates” of “Company Y” are now known, as is “CIA officer 2.” Additional people and details have become known.
The press has been hard at work uncovering the pseudonyms used and nailing down the true identities of the site. I compile them here.
The most important outstanding questions: who are Detainees “R” & “S,” and where is detention site “red?” While I feel pretty strongly about redacting the names of low-level personnel from the NSA slides, which are technical in nature, I have zero interest in protecting torturers. The public has a right to know where these black sites were, and the detainees deserve a name and a fair trial.
Detention sites:
BLACK – RomaniaBLUE – “Quartz” – Stare Kiejkuty, Poland
BROWN – Afghanistan
COBALT – “Salt Pit” – Afghanistan
GRAY – Afghanistan
GREEN – Thailand
INDIGO – Guantanamo
MAROON – Guantanamo
ORANGE – Afghanistan
VIOLET – Lithuania
RED – This could be an additional site in one of the above countries, or someplace entirely different. It is mentioned only once in the report, on page 140 of 499, and the entry is almost entirely redacted.
Companies:
Company Y – Mitchell, Jessen & Associates, based in Spokane, Washington.The “Associates” are David Ayers, Randall Spivey, James Sporleder, Joseph Matarazzo, and Roger Aldrich.
It should be noted that there is no “Company X” in this report, I found this peculiar. It seems that there should be one, and as it happens there are several shady “Companies’ known: “Premier Executive Transport Services” Incorporated in Dedham Massachusetts, is known to have been part of the CIA rendition program. The names of its officers include “Coleen Bornt,” “Brian Dice” and “Tyler Edward Tate.” These are fictitious people.
Other companies suspected of involvement in rendition include: “Stevens Express Leasing” “Richmor Aviation” “Rapid AirTrans” “Path Corporation”
Businesses:
Business Q – Associated with Zubair, associated with Hambali
Torture Doctors:
“Grayson Swigert” – James Mitchell”Hammond Dunbar” – Bruce Jessen
CIA Officers:
CIA Officer 1 – COBALT Site manager – Matthew Zirbel. Zirbel’s corrupt CIA boss (Convicted) Kyle “Dusty” Dustin Foggo overruled the 10 day suspension Zirbel received in the murder of Gul Rahman (innocent).CIA Officer 2 – Torturer at COBALT and BLUE – Albert El Gamil – retired from CIA in 2004.
[Redacted] – Ron Czarnetsky, CIA Chief of Station on Warsaw, Poland from 2002 to 2005. This would make him responsible for site BLUE.
[no mention] Alfreda Frances Bikowsky – Made herself involved in Waterboarding in Poland (BLUE) in March of 2003. Took trip unassigned and on own dime. Was “scolded” and told it “wasn’t supposed to be entertainment.” Would have been there at the same time as Mitchell and Jessen.
Assets:
Asset X – Directly involved in the capture of KSM.Asset Y – Reports on Janat Gul
Persons:
Person 1 – al-Ghuraba group member, with an interest in airplanes and aviation. “intelligence indicates the interest was unrelated to terrorist activity.”
Detainees:
Detainee R – Held by foreign government, rendered to CIA custodyDetainee S – Held by foreign government
Just over two weeks ago, Khalid Sheikh Mohammed and other 9/11 terror suspects had a pre-trial hearing before the Guantanamo Bay commission. The judge presiding over the commission is Army Colonel James L. Pohl. Key issues argued were whether a forty-second daly between the press and courtroom was constitutional and whether the suspects could testify about being tortured by CIA interrogators or not.
John Knefel for The Nation traveled to Guantanamo Bay to cover the hearing. His dispatch on the proceedings he witnessed has been posted and it is worth reading.
As he reports, the court heard argument on ”whether the five co-defendants can be barred from testifying about their own experiences on the grounds that their thoughts, emotions and memories are classified information. The prosecution, on behalf of the government, has argued that all utterances by the accused should be “presumptively classified”—that is, every possible statement by should be treated as secret government information—but this request has since been weakened.”
He adds, “The prosecution’s argument is that the five defendants are in a “particularly credible position to confirm or deny” elements of the CIA’s rendition, detention and interrogation program. Having been tortured, they are in possession to describe it, and the government has clear incentives to keep them from doing so.”
The American Civil Liberties Union has opposed the effort to censor torture testimony. Hina Shamsi, director of the ACLU’s National Security Project, declares, “The government’s claim that it can keep from the public the defendants’ testimony about their ‘thoughts and experiences’ of torture is legally untenable and morally abhorrent.”
I was covering the latest hearing in the court martial of Pfc. Bradley Manning, the soldier accused of releasing classified information to WikiLeaks, when this was all unfolding weeks ago. I did not get a chance to highlight some of the government’s argument, but I think this is an appropriate opportunity to share some more of what the government’s argument is on classifying the memories of terror suspects. It nicely complements the totalitarian arguments proffered by government attorneys in support of the indefinite detention provision of the National Defense Authorization Act of 2012 and the FISA Amendments Act of 2008, which essentially legalized warrantless wiretapping that had been occurring under the administration of President George W. Bush.
Justice Department lawyer and deputy trial counsel for the prosecution Theresa Baltes stated in court on October 16 that an executive order issued by President Barack Obama was in force that authorized classification of “orally conveyed information that falls within the subsection of foreign or intelligence sources and methods.” Baltes was alluding to observations and memories of torture or, to use Vice President Dick Cheney’s phrase, “enhanced interrogation techniques.” The “intelligence sources” are the agents who tortured them. The “methods” are how they were tortured and that is not something the government thinks the press or American public should ever find out about.
Baltes said to Judge Pohl later in the proceedings on October 16 the government had originally proposed an order that required defense attorneys to treat everything their client said as classified, including details on what their client had for lunch a day or two ago. The order was narrowed to protect statements on what occurred while in CIA custody.
“The prosecution is proposing that they only treat as classified and handle as classified statements that they know to be classified based on their security clearance,” Baltes told the commission. “And that would specifically include — or believe to be classified, and specifically include information about the CIA RDI program and their prior custody, detention, interrogation.” (RDI being the CIA’s Rendition, Detention and Interrogation program.)
Navy Lieutenant Commander Kevin Bogucki, who represents former CIA captive and former translator for Osama bin Laden, Muhammad Rahim, tried to outline the draconian and preposterous nature of the government’s position. He argued, “When the government voluntarily exposes someone outside their control to information, they are voluntarily relinquishing control over that information.” For example:
..[L]et’s say we are just imagining, for the sake of argument, that there is a classified CIA assassination program and one of the agents in this program goes and attempts to take out a target but fails, wounds the target but doesn’t kill him. That victim is now unable to describe the circumstances of the assault upon him because it might tend to reveal the personnel involved in this secret program, the means by which this program executes its duties? Clearly that makes no sense. It doesn’t matter how secret they kept it when they were planning and when they were working through the techniques of this secret program. Once they decide to execute that program in the real world and expose people outside their control to the essentially mechanisms or the product of that planning, they have now relinquished control over that. And to simply say, well, it relates to the secret program and therefore you can’t talk about it, goes far beyond what can properly be classified… [emphasis added]
Judge Pohl, at one point in the proceedings, notes that the government is not seeking to classify all experiences and memories. They have sough to limit the classification to certain dates and places. Bogucki countered by arguing the information has to be owned, produced or under the control of the US government.
…Now, the only one of those that the government can even arguably rely upon is under the control of the United States Government. If you can go to the next slide, please. So again here, they are relying upon the prong that this statement is arguably under the control of the United States Government….Okay, but the only reason that they think they have control over this information, the only reason that theythink that final prong is satisfied is because they are holding our clients essentially in isolation…
What Bogucki is suggesting is his client has been completely dehumanized. To the government, he is not a person. He is a vessel containing details that if disseminated would invite scrutiny or possibly undermined current operations or missions against terrorism. Therefore, this vessel cannot come in contact with other prisoners or else those prisoners might come into possession of this information that the government wishes to keep secret. So, Bogucki’s client must be held in solitary confinement and suffer under those conditions because some agents used classified methods of interrogation or torture on him.
Let’s return to Knefel’s piece. He puts this all into the larger context hinting at the reality that what the military commissions system is a second-class system of legal justice that has been constructed to ensure convictions. He also highlights how Obama says he intends to close Guantanamo but a person suspected of being involved in the Benghazi attack could potentially end up at Guantanamo. The moment new prisoners start arriving at Guantanamo under Obama is the moment that any more platitudes about closing Guantanamo are exposed to be completely hollow.
And Knefel writes, “The military commissions are just one piece of a larger, disturbing trend toward centralized presidential power with virtually no oversight or transparency.” He contends:
…The bigger problem is that a once radical idea—that the executive branch should have its own legal system to try so-called enemy combatants—has been normalized and codified under two separate administrations. Recent claims that the CIA and FBI are attempting to send a suspect in the Benghazi killing of Libya Ambassador Christopher Stevens to Guantánamo Bay underscore critics’ skepticism that military commissions will be a limited tool with a definite ending.
The same, of course, is true for the “War on Terror” more broadly, as evidenced by a chilling Washington Postreport on the “disposition matrix,” a counterterrorism tool that further entrenches the policy of “targeted killing” embraced by the Obama administration. As Spencer Ackerman writes, “Obama did not run for president to preside over the codification of a global war fought in secret. But that’s his legacy.” Indeed, as John Kiriakou, a whistleblower recently prosecuted for trying to shed light on the CIA’s torture program, knows too well, the Obama administration has charged more whistleblowers under the Espionage Act of 1917 than all previous presidents combined…
The case of Kiriakou is a kind of bookend to the first term of a president, who pledged to be different from Bush and then decided to be completely subservient to the national security state like previous presidents. Kiriakou was subjected to a prosecution for revealing the name of a covert agent involved in the RDI program, who multiple people in the human rights community are believed to have known. He was prosecuted after he went on television and said the CIA had an official policy of torture because it did use waterboarding on detainees. That the CIA did not like and it made him a target. The government went after Kiriakou and in the process destroyed his life and the lives of his wife and five children by putting them through a prosecution that has left him impoverished and ruined.
What has happened to the torturers? How many people who actually engaged in torture of terror suspects have you heard about, whose lives have been wrecked because they were savages toward human beings? How many people have you read about in the news who authorized this policy and now are in jail because they instructed people lower than them to engage in torture and sought to cover it up with crafty legal justifications?
The answer is none. The answer is nobody. The answer is the US government remains committed to concealing details on methods of torture that were used on people now imprisoned at Guantanamo because the continuity of government was more important to the Obama administration than justice. And, the classification of the experiences and memories of terror suspects is supported by the government so agents, who engaged in torture, do not go through the kind of life-wrecking experience Kiriakou did.
Former CIA agent John Kiriakou pleaded guilty Tuesday morning to crimes related to blowing the whistle on the US government’s torture of suspected terrorists and was sentenced to two-and-a-half years in prison.
The Wall Street Journal reports that Kiriakou, 48, agreed to admit to one count of disclosing information identifying a covert agent early Tuesday, just hours after his attorney entered a change of plea in an Alexandria, Virginia courtroom outside of Washington, DC.
Kiriakou was originally charged under the Espionage Act of 1917 after he went public with the Central Intelligence Agency’s use of waterboarding on captured insurgents in the wake of the September 11, 2001 terrorist attack. On Monday morning, though, legal counsel for the accused former CIA agent informed the court that Kiriakou was willing to plead guilty to a lesser crime.
Initially, Kiriakou pleaded not guilty to the charge that he had outted two intelligence agents directly tied to the drowning-simulation method by going to the press with their identities.
As RT reported last week, defense attorneys had hoped that the government would be tasked with having to prove that Kiriakou had intent to harm America when he went to the media. Instead, however, prosecutors were told they’d only need to prove that the former government employee was aware that his consequences had the potential to put the country in danger.
Had Kiriakou been convicted under the initial charges filed in court, he could have been sentenced to upwards of five decades behind bars.
“Let’s be clear, there is one reason, and one reason only, that John Kiriakou is taking this plea: for the certainty that he’ll be out of jail in 2 1/2 years to see his five children grow up,” Jesselyn Raddack, a former Justice Department official who blew the whistle on Bush administration’s mishandling in the case of “American Taliban” John Walker Lindh, wrote Tuesday.
Kiriakou, Raddack wrote, was all but certain to enter the Alexandria courthouse on Tuesday and plead guilty to the lesser charge of violating the Intelligence Identities Protection Act (IIPA), explaining, “there are no reported cases interpreting it because it’s nearly impossible to prove–for “outing” a torturer.”
“’Outing’ is in quotes because the charge is not that Kiriakou’s actions resulted in a public disclosure of the name, but that through a Kevin Bacon-style chain of causation, GITMO torture victims learned the name of one of their possible torturers,” Raddack wrote. “Regardless, how does outing a torturer hurt the national security of the U.S.? It’s like arguing that outing a Nazi guarding a concentration camp would hurt the national security of Germany.”
Speaking on condition of anonymity, a former government official told Firedoglake recently that the CIA was “totally ticked at Kiriakou for acknowledging the use of torture as state policy” and allegedly outing the identity of a covert CIA official “responsible for ensuring the execution” of the water-boarding program.
Kiriakou “outted” to the reporters the identities of the CIA’s “prime torturer” under its Bush-era interrogations, Firedoglake wrote. “For that, the CIA is counting on the Justice Department to, at minimum, convict Kiriakou on the charge of leaking an agent’s identity to not only send a message to other agents but also to continue to protect one of their own.”
Former National Security Agency staffer Thomas Drake suffered a similar fate in recent years after the government went after him for blowing the whistle on the NSA’s poorly handled collection of public intelligence. A grand jury indicted Drake on five counts tied to 1917’s Espionage Act as well as other crimes, but prosecutors eventually agreed to let him off with a misdemeanor computer violation that warranted zero jail time.
Together, Drake and Kirakou are two of six persons charged under the Espionage Act during the administration of US President Barack Obama. The current White House has indicted more people under the antiquated World War 1-era legislation than all previous presidents combined.
U.S. military guards move a detainee at Guantanamo Bay, Cuba, on March 30, 2010. In a motion unsealed last week, the government doubled down on its position that detainees’ observations and experiences of their time in U.S. custody are classified. (Paul J. Richards/AFP/Getty Images)
In a motion unsealed last week, the government proposed new ground rules for classified information in the trial of Khalid Sheikh Mohammed and four others charged with planning the 9/11 attacks.
The new order says the accused can’t talk about their “observations and experiences” of being held by the CIA, including “the enhanced interrogation techniques that were applied to the Accused” — that is, waterboarding and other abuse.
As we reported earlier this year, the government maintains that many details of the CIA’s detention program are still classified, despite widespread disclosures and an official acknowledgement by President George W. Bush in 2006. “Due to these individuals’ exposure to classified sources, methods, or activities of the United States,” an order filed in April read, anything the men say is “presumed to contain information classified as TOP SECRET / SCI.”
That sentence would have required defense attorneys to get the approval of a security officer to disclose even mundane information such as a date of birth, if it came from the defendant.
The new protective order — which is pending a judge’s approval — eliminates the line that all statements by the accused are presumed classified. In proposing the change, the government wrote it intended to “alleviate defense concerns” about the burden that presumptive classification added to their interactions with their clients. The government’s new motion says that attorneys would only need a review of information “they know or have a reason to know is classified.”
But when it comes to the CIA’s detention program, the new order states explicitly that “the term ‘information’ shall include without limitation observations and experiences of the Accused.”
A Pentagon spokesman did not return requests for comment about the new order.
The American Civil Liberties Union, news organizations, and James Connell, a lawyer representing one of the defendants, have challenged the government’s authority to declare something presumptively classified, and to extend classification to a detainee’s own statements. The ACLU filed a motion this spring arguing that the government forcibly “exposed” the detainees to this classified information, and that therefore the detainees couldn’t be bound to a non-disclosure agreement.
The group also argues that because the CIA program is now outlawed and has been so widely discussed, there is no compelling national security need to keep the details secret. The ACLU and media groups oppose the 40-second delay the government has imposed on broadcasting case proceedings. The government says the delay simply allows the commission to censor classified information. (That’s how the arraignments proceeded in May.)
The defense lawyer Connell said that in terms of the attorney-client relationship, the new proposal was an “important start.” But as far as public access goes, the ACLU’s lead lawyer on the case, Hina Shamsi, says that the new order “makes explicit what the government is seeking to do — prevent the public from hearing from the defendant’s own mouths their experiences of CIA torture.”
The judge presiding over the military commission, Army Col. James Pohl, would have to accept the government’s proposal for it to go into effect in the case. Pohl approved a similar protective order last year in the case of Abd al Rahim al Nashiri, who was allegedly behind the 2000 attack on the U.S.S. Cole. (That order has also been challenged by news organizations).
Hearings on the public access issue and Connell’s opposition to presumptive classification are scheduled for next week. Originally intended for August, they were postponed due to Hurricane Isaac.
Nobel Peace Prize nominee PFC Bradley Manning, a 24-year-old Army intelligence analyst, is accused of releasing the Collateral Murder video, that shows the killing of unarmed civilians and two Reuters journalists, by a US Apache helicopter crew in Iraq. He is also accused of sharing the Afghan War Diary, the Iraq War Logs, and series of embarrassing US diplomatic cables. These documents were published by the anti-secrecy website WikiLeaks, and they have illuminated such issues as the true number and cause of civilian casualties in Iraq, along with a number of human rights abuses by U.S.-funded contractors and foreign militaries, and the role that spying and bribes play in international diplomacy. Given the war crimes exposed, if PFC Bradley Manning was the source for these documents, he should be given a medal of honor.
Not a single person has been harmed by the release of this information. Defense Secretary Robert M. Gates has called the effect of WikiLeaks’ releases on U.S. foreign relations “fairly modest.” Yet the Obama administration has chosen to persecute the whistle-blower rather than prosecute the war criminals who were exposed. While the prosecution has declared it does not intend to seek the death penalty, they do seek to lock PFC Bradley Manning away for life, with the most ridiculous charge of ‘aiding the enemy,’ even though chat logs attributed to Bradley by the FBI clearly show intent only to inform the public and promote “discussion, debates, and reforms.”
Soldiers are promised fair treatment and a speedy trial under the Uniform Code of Military Justice (UCMJ). However, the soldiers responsible for PFC Manning’s care took it upon themselves to abuse him by keeping him locked up in solitary confinement for the first 10 months of his incarceration. During this time, Bradley was denied meaningful exercise, social interaction, sunlight, and on a number of occasions he was forced to stay completely naked. These conditions were unique to Bradley and are illegal even under US military law, as they amount to extreme pre-trial punishment. In March 2011, chief US State Department spokesperson PJ Crowley called PFC Manning’s treatment at the Quantico, Virginia, Marine Corps brig “ridiculous and counterproductive and stupid.” He was forced to resign shortly after admitting this. Since resigning, he has stated that the prosecution’s heavy-handed persecution of PFC Manning has undermined the government’s credibility.
Bradley’s treatment sparked a probe by the United Nations special rapporteur on torture, Juan Mendez. Mr. Mendez stated that he has been “frustrated by the prevarication of the US government with regard to my attempts to visit Mr. Manning.” After having his requests to visit Bradley repeatedly blocked, and after completing a fourteen month investigation, Mr. Mendez issued a statement saying that PFC Bradley Manning’s treatment has been “cruel and inhuman.”
It only took one week in April 2011 to have over a half million people sign a petition calling on President Obama to end the isolation and torture of Bradley Manning. The Obama administration’s ongoing persecution of Bradley Manning has served as “a chilling deterrent to other potential whistleblowers committed to public integrity,” and over 300 top legal scholars have declared that Bradley’s treatment was a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment, as well as a violation of the Fifth Amendment’s guarantee against punishment without trial. Among the signatories is professor Laurence Tribe, a Harvard professor who taught President Obama. Professor Tribe was, until recently, a senior advisor to the US Justice Department.
Partially in response to public outcry, on April 21, 2011, Bradley was moved from Quantico to Fort Leavenworth, KS, where his conditions greatly improved. The very day he was moved, President Obama was surprised at a breakfast fundraiser by a group of protesters. At the end of the fundraiser, a member of the Bradley Manning Support Network, Logan Price, questioned him about Bradley’s situation. The President stated that “He [Bradley Manning] broke the law.” This pretrial declaration of guilt that has caused concern among legal experts, who argue it is clearly a case of ‘undue command influence’. President Obama is the highest ranking military commander, and soldiers follow his orders and his direction. By declaring PFC Bradley Manning guilty, he set the tone and direction of the subordinate military prosecution. It is now difficult for soldiers to express support for PFC Bradley Manning, who like many soldiers who follow the lead of their commander-in-chief, assume PFC Bradley Manning is guilty. Finally, reinforcing the assumption of Manning’s guilt, no charges were filed against any of the soldiers who took it upon themselves to abuse Bradley while he was under their supervision.
Bradley Manning has a growing list of supporters who want all the charges against him dropped. Among the supporters is the famous whistle-blower, Daniel Ellsberg, who leaked the Pentagon Papers in 1971. Recognizing the valor required to tell the truth, Ellsberg calls PFC Bradley Manning a hero and a patriot. We agree. Drop all the charges, and free PFC Bradley Manning.
We hope that you will join us as well. See what you can do to support justice in this historic time.
Here are some recommended articles with more information:
The US Supreme Court unanimously decided that foreign political organizations and multinational corporations cannot be sued for the torture or extrajudicial killing of persons abroad under an anti-torture law passed in 1992. The law only gives people the right to sue “an individual,” “who acted under the authority of a foreign nation,” according to the Los Angeles Times.
The decision came in a lawsuit filed by the family of a US citizen, Azzam Rahim, who was tortured and killed in the Palestinian Territory by Palestine Liberation Organization (PLO) intelligence officers. It was Justice Sonia Sotomayor, who President Barack Obama appointed to the Supreme Court, that spoke for the decision. She explained the text of the Torture Victims Protection Act of 1991 “convinces us that Congress did not extend liability to organizations, sovereign or not. There are no doubt valid arguments for such an extension. But Congress has seen fit to proceed in more modest steps in the Act, and it is not the province of this branch to do otherwise.”
This outcome is not just a blow for the family of Rahim but also those concerned with human rights. If one considers the intent of the law, it seems like Rahim’s family should not have been scoffed at as they were for bringing the lawsuit. (Chief Justice John Roberts laughed at the lawyer for the family, Jeffrey Fisher, during arguments in Court.)
President George H.W. Bush, who signed the law, intended this to be legislation that would push Congress to ratify the Convention Against Torture:
I regret that the legislation proposed by the Administration to implement the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has not yet been enacted. This proposed implementing legislation would provide a tougher and more effective response to the problem, putting in place for torturers the same international “extradite or prosecute” regime we have for terrorists. The Senate gave its advice and consent to the Torture Convention on October 27, 1990, but the United States cannot proceed to become a party until the necessary implementing legislation is in place. I again call upon the Congress to take prompt action to approve the Torture Convention implementing legislation.
The law was already considered a law that would not apply to the US Armed Forces or law enforcement operations that were carried out under US law.
UN Special Rapporteur on Torture Juan Mendez submitted a brief to the court in support of Rahim that outlined the fact that the Torture Convention is supposed to help “prevent torture” by “persons who act, de jure or de facto, in the name of, in conjunction with, or at the behest of the State Party.” In other words, being a government official doesn’t make one immune to prosecution. Any person who is complicit or participates in torture is to be criminalized. There are to be civil remedies in place to compensate and give justice to victims of torture. What this ruling does then is undercut the United States’ responsibility to uphold the Torture Convention.
Aside from the reality that the US government finds it has no obligation to do what signatories to the Torture Convention are expected to do, the ruling is troublesome on another level because the comments from Supreme Court justices suggest if the family of Rahim knew the names of people that had tortured and killed him then they might not have had a weak case.
Now, against scholarly understanding of international law, the Court has effectively rendered precedents where non-state actors, like corporations, have been held liable for torture moot. As the Yale Law School Center for Global Legal Challenges demonstrates in a brief, they are contradicting the US State Department policy:
The U.S. State Department has routinely acknowledged that non-state groups and organizations have engaged in torture. See, e.g., U.S. Dep’t of State, Democratic Republic of the Congo: Country Reports on Human Rights Practices (Feb. 23, 2000) (citing credible reports that “Mai Mai groups fighting on the side of the Government committed * * * torture * * * of civilians”); U.S. Dep’t of State, Sri Lanka: Country Reports on Human Rights Practices (Mar. 4, 2002) (“[T]wo former Tamil terrorist organizations aligned with the former PA Government * * * have been implicated in cases involving extrajudicial killing [and] torture.”).
It was already difficult for torture victims to win lawsuits. In December 2011, a federal judge dismissed a lawsuit by a former Guantanamo detainee claiming US military officials had tortured him repeatedly. A federal appeals court dismissed torture cases against Abu Ghraib contractors in September 2011. The Ninth Circuit dismissed a suit against Jeppesen Dataplan that alleged they had “knowingly aided in the rendition and subsequent torture of terror suspects by the CIA,” after the Obama Justice Department invoked a state secrets privilege. A federal appeals court didallow a lawsuit against former Secretary of Defense Donald Rumsfeld for authorizing torture to move forward, but a district court dismissed another lawsuit against him for authorizing the torture of detainees by US military personnel in Iraq and Afghanistan. And, months before that, a lawsuit brought by convicted terrorist Jose Padilla against US Defense Secretary Robert Gates and Rumsfeld for their role in his torture and isolation on a Navy military brig was thrown out and the Obama Justice Department determined that Bush administration lawyers that had crafted legal justification for torture had engaged in no “professional misconduct.”
If torture is illegal, it is only prohibited from being expressly included in policies of agencies or departments. It most certainly is something agents, military personnel and government officials can engage in and avoid prosecution. Given that reality, the narrow interpretation is not necessarily surprising. Using this case to create a precedent that grants cover to corporations that engage in torture is in line with the culture of impunity that has been fostered by US government. Unfortunately, if torture victims want justice, the United States is one of the last countries they should turn to for reparations at this point in history.
Dr. Bassem al-Mudares died on July 21, 2004. His mutilated body was found in the city of Samarra, Iraq. He was a Ph.D chemist and had been tortured before being killed. He was a drug company worker who had a chemistry doctorate.
