Another Very Secret Hearing

On September 10, the Guantanamo military commissions released a heavily redacted transcript of a closed session in the September 11 case. The subject of the closed session, which occurred on August 19, was filing number AE52. AE52 is a motion by the government whose title is classified. The government filed the same motion, under docket number AE92, in the Al Nashiri military commission. There was a closed hearing on AE92 in June, which I wrote two blog posts about:

The Very Secret Hearing

The Somewhat Less Secret Hearing

The redacted transcript of the Nashiri hearing on AE52/AE92 made clear that the motion was an attempt by the government to narrow the scope of its discovery obligations about the defendants’ torture by the CIA. But what, exactly, the government was arguing for remained a mystery, and the court did not rule on the motion. The transcript of the 9/11 closed hearing provides more clues. It appears the government took the incredible position that evidence of CIA torture was not discoverable at all. Judge James Pohl rejected that argument but did not make any rulings on precisely what evidence about CIA torture the government was obliged to provide defense counsel, about the form it would take, about whether the defense would be allowed to share any of the evidence with their clients, or about whether the public would ever see any of it.

Judge Pohl told counsel:

Understand, I’m not addressing whether or not [redacted]. I’m not addressing whether or not [redacted] is sufficient; I’m not addressing whether or not [redacted] is sufficient. That’s not what I’m doing today….What I’m making a decision now is that [redacted] will be discoverable. So the question only before me is whether this is discoverable or not.

Later on in the hearing the judge had the following exchange with Joanna Baltes, the Department of Justice prosecutor whose main function for the commission appears to be to aid the CIA in concealment of the defendant’s torture:

Baltes: …Do you want me to make a presentation or–

Judge Pohl: No, I’m just saying, the only issue I thought before me was whether or not any of these–any of this information that is in [redacted] or the variations of the theme, [redacted] was discoverable.

Baltes: Yes.

Judge Pohl: And I’m simply saying the answer is yes. [Redacted] I’m going to compel discovery on.

Baltes: So you have already made the decision about whether something would be discoverable or you are going to hear from the parties about whether something is discoverable?

Judge Pohl: What I am saying, do you want to be heard about why it is not discoverable?

Baltes: We will rest on our papers as far as why it’s not discoverable.

Pohl later elaborated that he was not ruling on the precise scope and form of discovery; his ruling from the bench “simply puts the government on notice of what their discovery responsibilities of this is because there’s an issue about whether it was even discoverable at all.”

Baltes later restated the government’s position as follows: “I mean, number one, our position is nothing is discoverable; number two, our position is that in the event something is discoverable [redacted].”

The discussion then turned to the defense’s motion to compel the prosecution to provide an unclassified summary of AE52 in order to discuss it with experts. Defense counsel James Connell argued:

At this point…there is no word in [redacted] even–[redacted] is no-named motion. There’s no word of it that is unclassified. If I could use [redacted] and [redacted] in the same sentence to describe the expertise I’m looking for, that would get me pretty much where I need to go.

Baltes replied:

there is no way to do an unclassified summary of the relief the government is requesting in [redacted]. As counsel are aware, based on briefings in this case, [redacted] is classified. So revealing [redacted] would be revealing of classified information. [redacted] so there is no way to do an unclassified summary [redacted].

When I first wrote about this motion in the Al-Nashiri case, I wrote that the prosecution was not only “concealing evidence of torture. Instead, it is concealing its concealment of evidence of torture.” How the government argues with a straight face that evidence of torture is irrelevant and non-discoverable in a capital case that will rely partly on the statements of defendants who were tortured, I have no idea. How the government argues that this legal argument is, itself, properly classified, I have even less idea. But they don’t need to tell us, really. The redaction makes the issue so opaque that you have to be fairly obsessive to even begin to infer what’s going on–and even if you manage that, it’s almost impossible to write about it in a way that’s not hopelessly confusing to the general reader. I doubt I have succeeded, but I hope this at least helps.

UPDATE: Someone who follows these issues even more closely than I do, whose opinion I greatly respect, suggests that I may be over-interpreting the transcript and raised the possibility that the government’s argument about the limits of its discovery obligations about CIA treatment of the defendants may apply only to the case-in-chief phase of the trial, not the mitigation phase. If so, the government’s position and its concealment of it would remain quite wrong, in my opinion, but somewhat less inexplicable. I am going to search through the transcripts & docket one more time to see if I can find any evidence to that effect. In any case, I want to emphasize that I am making inferences based on an incomplete record. I am doing so because I think it’s important not to let the “concealment of the concealment” strategy completely succeed–but I’m reading tea leaves and I may be wrong.

CACI’s Forgotten Role in Abu Ghraib (II)

(Before reading this post, please read part I, on the publicly available evidence of CACI interrogators’ role in directing Charles Graner, Ivan Frederick, and other soldiers to abuse prisoners at Abu Ghraib.)

It is not clear why the Department of Justice never prosecuted Steven Stefanowicz, Daniel Johnson, or any other CACI interrogator for their role in the torture at Abu Ghraib. The best clues are contained in a two part file (1, 2) from the Army Criminal Investigative Division’s (CID) investigation into the Abu Ghraib abuses, released to the ACLU after a Freedom of Information Act request. Unfortunately, virtually every proper name in the CID file is redacted–including Charles Graner’s, Ivan Frederick’s, Stefanowicz’s, Johnson’s, and others whose identities are public knowledge. But if one is familiar with the facts and chronology of the case it is sometimes possible to infer whose name has been redacted on which page.

On January 27, 2005, an Army CID investigator wrote to a Department of Justice (DOJ) oficial summarizing CID’s findings about the civilians at Abu Ghraib. The following paragraph likely refers to Stefanowicz:

[redacted] probably the ring leader of all the civilians. We have significant information, including trial testimony, that he directed and participated in the abuse of detainees while at prison. We have several witnesses, including [redacted] [redacted] and [redacted] who can testify that he gave them orders to abuse deteainees [sic]. This included the use of military working dogs on various detainees.

The following likely refers to Johnson:

We have significant information, to include photographs and a co-conspirator [redacted], that [redacted] was abusing detainees. He forced detainees in stress positions and he and [redacted] used pressure points and simulated suffocation of a detainee by covering the nose and mouth so the detainee could not breath.

DOJ’s initial reaction was skepticism. On January 31, 2005, a civilian prosecutor wrote back to the CID investigator:

Your information does not seem to be the same evidence we have and we’ve been digging into this business in detail….Could you tell me how we can overcome the guidance on the use of dogs that apparently came over from GITMO with MG [name redacted; likely refers to Geoffrey Miller]. What is [redacted, probably “Steve”] the leader of – I know he held some type of supervisory position, but I have no evidence that he was the leader of some abuse program or whatever you are suggesting.

By March 5, 2005, though, prosecutors had decided to pursue charges against at least one civilian contractor. According to a CID agent’s notes,

The AUSA’s [U.S. Attorneys] are going to proceed with actions against [redacted]. After being briefed and seeing all information from others pertaining to him, along with his interview with [redacted], they felt he should be pursued.

Another page of the CID file refers to a grand jury being convened to hear evidence against a contract interrogator. The file states that on June 15, 2005, CID agents met with a U.S. attorney who “is seeking a federal indictment against one of the civilian subjects” of the Abu Ghraib investigation. The U.S. Attorney requested the military’s help in locating a contract interpreter who “has been identified as a key witness and he will be subpoenaed to testify before a federal grand jury tentatively scheduled to begin on/about 18 Jul 05.” The interpreter’s name is redacted, as is the name of the subject(s) of the grand jury investigation.

In July 2005, CID investigators traveled to Fort Leavenworth to administer a polygraph examination to an inmate–most likely Charles Graner–in preparation for potential testimony about Abu Ghraib. The inmate’s lawyer wrote to CID agents on July 12, 2005 that

[Redacted] is VERY unhappy. He feels like he is cooperating and his conditions have not improved. He is still in max custody and is very unhappy about it. He is prepared to defy the order to cooperate, though I am trying to walk him back from that position.

On July 19, a CID agent arrived at Leavenworth to conduct the polygraph, but was rebuffed. According to notes in the CID file, the agent

met with [redacted] who said he was not taking any polygraphs. [Redacted] said he was not cooperating with SA [redacted] prosecution or the US Government anymore and didn’t care what his grant of immunity ordered him to do.

Graner, unlike fellow Leavenworth inmate Ivan Frederick, did not testify at the courts martial for military dog handlers Michael Smith and Santos Cardona in 2006. But a number of other witnesses did testify about Stefanowicz’s role in the dog handlers’ abuse of prisoners.

After Smith and Cardona were convicted, FBI and Abu Ghraib CID investigators tried to arrange for them to be interviewed under grant of immunity. But the military officers who had the authority to grant immunity declined to do so, despite repeated requests. According to CID file notes from August 2006, “[a]n interview of both dog handlers had been deemed key and essential to the successful prosecution of [redacted] by the U.S. Attorney’s office.” Another note to the file from September 2006 states that investigators believed Smith and Cardona

would provide significant information regarding several of the civilian interrogators identified in in this investigation…both were supposed to be granted testimonial immunity and interviewed regarding others identified as subject. Upon completion of the both actions, the MDW SJA [Staff Judge Advocate for the Military District of Washington] decided not to immunize either soldier. Efforts are ongoing to obtaining the immunization; however, it is not believed this will occur.

On September 18, 2006, “an operational decision was made to discontinue efforts regarding the immunity and interview of the two dog handlers…It was believed the immunity would not by forthcoming in the near future.”

The Military District of Washington is headquartered at Fort Lesley McNair in Washington, DC. Its commander at the time was Major General Guy C. Swann, and the Staff Judge Advocate was William Barto. Their reasons for denying the request to immunize Smith and Cardona are not explained in the CID file.

In August 2007, Time reported that Steven Stefanowicz and another private contractor might still face charges for Abu Ghraib, based on a source’s statement that “during a recent appearance before a federal grand jury in the Eastern District of Virginia he answered questions about the role at Abu Ghraib of Steven A. Stefanowicz… as well as of another civilian contractor.”

But Stefanowicz was never indicted, nor was any other civilian implicated in the Abu Ghraib abuses. A case against CACI dismissed this June was the last remaining civil suit brought by torture victims for compensation. A judge recently ordered the victims to pay CACI’s court costs. The evidence of CACI’s role in the torture Abu Ghraib will never see the light of day unless the Fourth Circuit reverses the district court’s decision, and allows the case to proceed to trial.

CACI’s Forgotten Role in Abu Ghraib (I)

(originally published in the Huffington Post)

This June, a federal court dismissed Iraqi torture victims’ suit against military contractor CACI for its role in their abuse at Abu Ghraib, because the “alleged conduct giving rise to their claims occurred exclusively on foreign soil.” CACI released a statement that, “[w]e are gratified by the court’s decision and hope this is the end of these baseless lawsuits,” and recently followed up with a motion to force the plaintiffs to pay its court costs.

I worked on those lawsuits for many years, ending in 2011. They were not baseless. CACI is remarkably lucky that none of the cases ever made it to trial. The country has largely forgotten the company’s role in Abu Ghraib; the trial would have been a powerful reminder.

Several of the military police (MPs) who were court-martialed for Abu Ghraib have testified that CACI employees Daniel Johnson and Steven Stefanowicz ordered them to abuse detainees. Charles Graner and Ivan Frederick, the two MPs generally regarded as the ringleaders of the Abu Ghraib abuses, gave detailed accounts of Stefanowicz’s and Johnson’s role during court martial testimony and interviews with the Army Criminal Investigative Division (CID).

Graner told CID investigators in 2005 that it was Stefanowicz who had first encouraged him to mistreat detainees: “[w]hen we had come to the block I had come in with a correctional officer’s mindset of care, custody and control… I’m going to do the least amount of work possible and get paid for it, because that’s what corrections officers do. And that lasted for about a day, and then I met Big Steve.” Stefanowicz, Graner said, taught him to deprive detainees of sleep, take their clothes off, and handcuff them in stress positions in preparation for interrogation. (Graner would later engage in these and other abuses without any prompting from Stefanowicz or any other interrogator).

Graner remembered Stefanowicz directing MPs to be particularly brutal towards one detainee nicknamed “Taxi Cab Driver,” whose real name was Amjad Ismail Waleed. Sabrina Harman corroborated Graner’s statements about Stefanowicz’s role in “Taxi Cab Driver’s” abuse, as did Waleed himself. At a deposition for Harman’s court martial, Waleed testified that “Steve used to tell them to torture the guy in room #1, and used to come and watch the torture and laugh, sometimes he spits, and hit me once or twice.” Waleed said that this had begun before Charles Graner’s unit arrived at Abu Ghraib.

Ivan Frederick testified during the court martial of Army dog handlers Santos Cardona and Michael Smith that Stefanowicz had told him to menace one detainee with military dogs: “I was told by his interrogator, Big Steve, that he was al-Qaida,” said Frederick. “He said, ‘Any chance you get, put the dogs on.” There is photographic evidence of that detainee, Ashraf al-Juhayshi, being menaced by a black dog, and of “Taxi Driver” handcuffed naked in a stress position with women’s underwear on his head, although Stefanowicz himself does not appear in any of the Abu Ghraib photographs. Stefanowicz was never called as a witness during the dog handlers’ courts martial, but both the prosecution and defense stipulated to his role in directing soldiers to threaten detainees with dogs.

Frederick also alleged under oath that Daniel Johnson had instructed him to cover a detainee’s mouth and nose to stop his breathing, and inflict pain on him using “pressure points.” Graner told military investigators that he witnessed Johnson instructing Iraqi guards to torture a prisoner by “smacking [the prisoner] on the bottom of his feet and then forcing him to walk.”

CACI has strenuously denied these allegations, as have Stefanowicz and Johnson through counsel. They point out that Graner and Frederick have an incentive to shift blame for their own illegal conduct. But investigations led by Major General Antonio Taguba, Major General George Fay, and the Army Criminal Investigative Division found soldiers’ allegations about CACI personnel credible.

Taguba found that Stefanowicz had lied to investigators, and told MPs “to facilitate interrogations by ‘setting conditions’ which were neither authorized and in accordance with applicable regulations/policy. He clearly knew his instructions equated to physical abuse.” Fay’s report found that Stefanowicz (identified as CIVILIAN-21 in the report) has threatened detainees with dogs, and made false statements to investigators. Fay found that Johnson (CIVILIAN-11) had encouraged Frederick to abuse detainees, threatened to use dogs on detainees, and placed a detainee in a stress position. Military criminal investigative division investigators later found probable cause that Johnson had violated the federal assault statute, and that Stefanowicz had violated the laws against conspiracy, assault, and making false statements.

Despite this, the Department of Justice never charged Stefanowicz, Johnson, or any other CACI employee for their role at Abu Ghraib. We still do not know why that is. There are some clues in government documents released under the Freedom of Information Act, but they are so heavily redacted that they raise more questions than they answer. I will explore them further in a follow-up to this post.

Let Non-Secret Courts Decide if NSA Surveillance is Constitutional

(originally published in The Huffington Post)

Deputy NSA Director John Inglis recently told Congress that analysts “try to be judicious” in analyzing telephone metadata so as not to waste their name studying phone records from “the pizza delivery man.” But there are other groups of American citizens whose telephone records likely interest the intelligence community far more than takeout restaurants: attorneys who represent Guantanamo detainees. Journalists. Whistleblowers. Human rights researchers.

Even before the recent leaks about the NSA program, many of these groups and individuals suspected they were under surveillance, and sued to stop it. Courts have dismissed most cases because of a catch 22: in order to sue, plaintiffs must prove that they were affected by NSA surveillance — but the proof is classified.

In 2007, a group of Guantanamo lawyers sued under the Freedom of Information Act (FOIA) for records that showed whether the government had intercepted communications relating to their representation of their clients. The government refused to provide any records, or even to say whether they existed, because “acknowledging the existence or nonexistence of the information” requested would reveal classified information. The court ruled that the government did not have to answer.

This February, the Supreme Court dismissed Amnesty International v. Clapper, a suit by nonprofit organizations, attorneys, and journalists against the Director of National Intelligence. Justice Samuel Alito held that the plaintiffs’ fears of unlawful surveillance were too “highly speculative” for the suit to proceed. Second Circuit Judge Dennis Jacobs went further: the plaintiffs, he wrote, were acting out a “fantasy of persecution” comparable to “pro se plaintiff’s allegation that the CIA is controlling him through a radio embedded in his molar.”

But based on recent disclosures, journalists’, attorneys’ and civil society groups’ fears of surveillance were, if anything, understated. The plaintiffs in Amnesty v. Clapper alleged that the NSA had likely intercepted their communications because their work required them to communicate regularly with non-U.S. citizens, some of whom had been accused of involvement with terrorism. If the government was eavesdropping on the plaintiffs’ sources, clients, and witnesses, it would sweep up their communications as well.

We now know that the NSA did not restrict itself to querying its databases about people in direct contact — “one hop” away — from foreign surveillance targets. NSA officials have acknowledged that they can analyze metadata of people “two hops” or “three hops” from the target: not only a terrorism suspect, but everyone who communicates with him, everyone who communicates with those people, and everyone who communicates with those people.

To give a personal illustration: I have interviewed and communicated electronically with former detainees, but I do not know if any of them were NSA targets. A “one hop” analysis might exclude me. But I am virtually certain that a “two hop” analysis would not, because I have been in direct communication with a large number of detainees’ counsel, national security journalists, and human rights investigators. This means that all of my family, friends, and professional contacts are “three hops” away.

What degree of surveillance this means in practice is unclear. A recently declassified order by the Foreign Intelligence Surveillance [FISA] Court gives some clues with respect to telephone metadata. According to the order, the “hop-limited results” of the initial NSA queries are processed into a “corporate store.” Metadata in the corporate store can be searched “for valid foreign intelligence purposes,” using “the full range of SIGINT [signals intelligence] analytic tradecraft.” It is quite plausible that “valid foreign intelligence purposes” would include investigations of leaks of classified information, given the number of leakers the Obama administration has prosecuted for espionage. It is also quite plausible that the “corporate store” includes a great deal of information about national security journalists’ telephone calls with sources.

It is hard to be certain what is actually occurring, because so much about these programs remains classified. President Obama has asserted that “none of the revelations show that government has actually abused these powers.” But when discussing other countries’ human rights records, the U.S. State Department describes widespread surveillance of journalists, civil society, and ordinary citizens as abusive in itself, because it leads to self-censorship. That is part of the reason we have a Fourth Amendment, which even the highly deferential FISA court has found the NSA violated at times. The administration should stop hiding behind secrecy and standing doctrine, and allow non-secret, adversarial courts to determine whether its surveillance programs violate the Constitution.

Prior publications

Some of my greatest hits, collected in one place for the sake of convenience:

1. Report of the Constitution Project’s Task Force on Detainee Treatment. The chapters I worked on most were: Chapter 3 (Iraq), Chapter 6 (Role of Medical Professionals in Detention and Interrogation Operations), Chapter 7 (True and False Confessions: The Efficacy of Torture and Brutal Interrogations), Chapter 10 (The Obama Administration), Appendix 1, and Appendix 2. The Task Force’s Findings and Recommendations are the closest equivalent to an executive summary.

2. Force Feeding: Guantanamo’s Shame, an op-ed published in the Los Angeles Times with my Task Force staff colleagues, Alka Pradhan and Kent Eiler.

3. Several recent weblog posts for the Constitution Project:

James Comey and OLC Torture Documents: A Chronology

The Very Secret Hearing

The Somewhat Less Secret Hearing

Senator Feinstein Criticizes Guantanamo Force Feeding

4. Return of the Renditioned, a September 2011 Foreign Policy piece on revelations about U.S. rendition to torture in the wake of the Arab Spring.

5. Sulayman the Malevolent, a Spring 2011 article in Middle East Report about former Egyptian mukhabarat head and Mubarak Vice President Omar Suleiman’s role in rendition and torture.

6. The Promises of Torturers: Diplomatic Assurances and the Legality of “Rendition,” my law school thesis, published in the Georgetown Immigration Law Journal in 2006. Link is to a purchase page, as there’s no free copy available online; if you email me I can probably send it though.

7. Torturous Passage, a very old article about rendition to torture from The American Prospect. 

There are a few very recent pieces from a Huffington Post blog, which I will likely just republish in their entirety for the sake of simplicity.