Wednesday, March 11, 2009

A Farce in the Making? New Task Force on Interrogations and Detention

According to the New York Times, Obama administration Attorney General Eric holder announced today he would appoint a new "special envoy" on Guantanamo, former assistant secretary of state for European affairs in the Bush Administration, Daniel Fried.
Also on Wednesday, Attorney General Eric H. Holder Jr. named two government lawyers with national security experience as staff directors of task forces set up by President Obama to analyze detention issues.

J. Douglas Wilson, a senior federal prosecutor in California, is to lead an analysis of guidelines for interrogation and transfer of detainees to other countries. Brad Wiegmann, a senior Justice Department national security lawyer, is to help lead a task force charged with recommending the legal rules for detention of future terrorism suspects.
These men are not exactly household names, although Fried has had some notoriety over the years, having to act as apologist for Bush policies to the Europeans. Here's a bit about how he operated from a Craig Murray blog posting from May 2006, US officials give weight to reports of CIA kidnappings in Europe:
"More than one source in the CIA...told us that between 30 and 50 people have been transported by extraordinary rendition," Italian Socialist MEP and committee rapporteur Giovanni Claudio Fava told reporters in Strasbourg.

According to Mr Fava, the information MEPs received when meeting with the US state department's top legal advisor, John Bellinger, assistant secretary of state Daniel Fried, members of the US Congress, lawyers and NGO representatives had been "patchy and inconsistent."
One of these MEPs (members of the European Parliament), Roger Helmer, wrote in February 2006 about his encounter with Fried on the question of extraordinary renditions and use of European countries for CIA secret flights:
Appeals for senior US officials to explain their government’s actions to the parliament are unlikely to pass first base. Asked last week whether the US was going to comply with MEP demands, assistant secretary for European affairs Daniel Fried avoided the question with the usual Washington mantra. “America was committed to protecting people against terrorism and would do so according to existing legal conditions and values,” he said. The administration was already talking to “thoughtful Europeans.” But does that mean MEPs?
Who is going to look deeper into the qualifications of Mr. Fried to take on this post? Why was he picked. A reporter for the Washington Post asked Mr. Fried directly about the rendition issue at a "press roundtable", November 2005 in Berlin. What he got back was classic Bush double-talk and obfuscation. Listen to Holder's new Guantanamo "special envoy" talk around the rendition issue:
Question: Ambassador Fried, my name's Craig Whitlock, with the Washington Post here in Berlin. I want to follow up on some of your comments about terrorism. As you may know, there has been an increasing level of discomfort as of late in Europe with some of the tactics and methods the United States has used in the war on terrorism. There's a German prosecutor who's been investigating the alleged rendition of a German citizen from the Balkans to Afghanistan. A few days ago, Italian prosecutors from Milan filed extradition requests for 22 CIA operatives involved in kidnapping in (inaudible), and in the last couple of weeks there have been a number of (inaudible) in Europe, including the Council of Europe, who have said they're going to investigate reports of the CIA operating secret jails for terrorism suspects in eastern Europe. What sort of response have you been hearing from your European allies in regards to the U.S. methods like these in the war on terrorism? Are you hearing a lot of complaints, and is this affecting relations in terms of security methods and tactics in the war on terrorism?

Ambassador Fried: I have not heard a great deal from my European colleagues. I'm aware of course of the press reports. I'm not going to discuss the allegations either way. It is true that these issues are debated in Europe; they are debated in the United States. The recent terrorist bombings in Amman, Jordan -- the suicide bombings of the hotels -- remind us, as if we needed reminding, of the kind of terrorist enemy we face. I suppose I'm glad I live in a country where these issues are debated. We act, the United States acts, and will act, consistent with the law and with international norms. These are difficult issues; it is a difficult enemy we're fighting. I wish that we didn't face an enemy that obeys no rules, but we do have rules to obey and we will obey them.
The Usual Suspects - Wiegmann and Wilson

I certainly never heard of these two career attorneys. I did a little preliminary investigation, and they seem like highly suspect characters to put in charge of a task force to investigate detention and interrogation issues for the government, and the viability of the current Army Field Manual as a guideline for interrogations.

According to AFP:

The Attorney General appointed J. Douglas Wilson, currently the chief of the National Security Unit in the US Attorney’s Office for the northern district of California to lead a task force that will review US policies on interrogation and the transfer of detainees.

Wilson’s team will review whether the “Army Field Manual interrogation guidelines … provide an appropriate means of acquiring the intelligence to protect the nation, and whether different or additional interrogation guidance is necessary,” the US Justice Department said.

It will also examine US policy on rendition—the transfer of individuals to other nations for interrogation—and will establish rules ensuring policies “comply with domestic and international legal obligations … and that individuals do not face torture or inhumane treatment.”

Brad Wiegmann, a deputy chief of staff in the National Security Division of the Department of Justice, was appointed to lead a review of US detention policies, together with a representative of the Department of Defense.

Looking up Brad Wiegmann, I found few references on the net. Here he shows up as an attorney for the Department of Defense, circa 1998 in a deposition, as part of “Filegate” (a Judicial Watch file).

Then, at this link, we find Mr. Wiegmann listed as a recipient of an email in a long list of emails linked to the missing memos on torture and detention policy, a list of which is at Pro Publica. I'm not sure how the emails relate to the missing memos, as they were found by googling Wiegmann, but the file name links them to the missing memos story. Perhaps I can find out more from the Pro Publica people in the next few days.

In any case, in the list of emails I discovered online, Brad Wiegmann is listed as NSC (National Security Council), and most likely is listed in about seven other emails, as someone in the OLC loop with the other attorneys discussing the Geneva Conventions, the Convention on Torture, interrogation issues, etc.

The 5/28/04 memo is the only one with listed with the name “Brad Wiegmann”, the others all say “John B. Wiegmann”, who is also listed as NSC. It’s possible that John B. Wiegmann and Brad Wiegmann are two different people. John Wiegmann currently seems to work at Dept of State.

The 5/28/04 memo was sent to “Brad Wiegmann (NSC), A Erdmann (NSC), Carl J. Tierney (DOD), Brad Clark (OSD) [Office of the Secretary of Defense?]” from C. Kevin Marshall (OLC), and cc’d to “Jack Goldsmith, Howard Nielson (all OLC)”. The memo is described as “E-mail among OLC, NSC, and OSD with draft OLC analysis re: Geneva Conventions”.

I don’t know C. Kevin Marshall, the author of the memo Wiegmann received, except to say he’s a Federalist Society member. He also shows up in the recent Bradbury memo as a cite for the reasoning against the right of the President to suspend treaties.

Googling J. Douglas Wilson, I came across this statement “given to DOJ Inspector General investigators in 2002 by a DOJ Prosecutor named John De Pue, a 25 year veteran of DOJ”. The situation involved concerned the interrogation of "American Taliban", John Walker Lindh, who had been interrogated without an attorney, even after he asked for one. I'd note that he was also tortured. De Pue asked Daily Kos's own Jesselyn Radack, then at Department of Justice's Professional Responsibility Advisory Office whether information from Lindh would be accepted in court if gotten without an attorney present. Radack replied it would not, but they went ahead with the interrogation anyway.

The following quote then comes from a follow-up investigation on the Lindh affair. From De Pue:

… the Chief of the Appellate Section emailed me expressing the view that any such interview would not be subject to suppression. She subsequently emailed me a memorandum J. Douglas Wilson, formerly of the Appellate Section and presently the Criminal Chief of the San Francisco US Attorney’s Office … concluding that the sole remedy for a “McDade” violation was to discipline the responsible attorney and that suppression of any resulting statement was unwarranted.”

This latter quote is important because it shows Wilson arguing that even if a defendant's right to counsel is violated, no "suppression of any resulting statement" should occur. Given the long period in which Guantanamo and other U.S.-held prisoners in the "war on terror" were held and tortured without recourse to an attorney, one of the major issues involved in any future prosecutions of these individuals will concern the admissibility of evidence. One can argue that Wilson was only doing the bidding of his bosses, but under the circumstances of the terrible Bush years, it seems like a weak argument to me.

J. Douglas Wilson also co-wrote National Security Investigations and Prosecutions, which costs $194, so I'm not likely to buy it very soon.

This treatise presents the law governing, and related to, national security investigations (NSIs). An NSI is an investigation conducted by the United States government to acquire information about foreign threats to the national security, e.g., international terrorism. National security law is often inaccessible, and can be particularly hard to follow when divorced from the context of historical tradition, governmental structures, and operational reality in which it functions. This treatise explores the full background of NSIs, both from a pre-911 and a post-911 perspective, providing a powerful tool for any attorney handling a case involving a national security investigation or prosecution.

The book is co-written with David Kris. Here’s some interesting facts about Wilson's co-author (I'm looking for anything I can find to help me understand who these men are that Holder has appointed, so please forgive the detour):

David S. Kris was the Assistant Deputy Attorney General for national security issues in the United States Department of Justice (DOJ) from 2000 to 2003. He had worked his way up through the DOJ. He is now a counsel, Chief Ethics and Compliance Officer, and Senior Vice President at Time Warner.

Kris had been a high-ranking DOJ lawyer in the Bush administration for several years, and had appeared before Congress to advocate for the administration’s positions regarding the Foreign Intelligence Surveillance Act (FISA) and the USA PATRIOT Act. He had furthermore previously appeared before Congress in his personal capacity, after leaving the DOJ, to continue advocating for the government to have enhanced flexibility under FISA and the PATRIOT Act. This background caused his strong criticism of the administration’s legal claims to be considered particularly notable.

Finally, here’s an interesting case that Wilson lost as U.S. Attorney, when the U.S. Circuit Court of Appeals for the Ninth Circuit threw out an interrogation after finding that the defendant was denied his Sixth Amendment right to counsel…. Interesting.

U.S. v Harrison, 213 F.3d 1206, (9th Circuit, 2000)

I’m smelling a big fat rat. Two rats (three if you include Holder, four if you include Obama). When you consider the strange bias that affected Senator Leahy's selections for testimony about a possible Truth Commission on Bush-era crimes on torture, and also the adamant stand the DoJ has taken on protecting state secrets at the expense of the right of tortured individuals to sue the government for damages, then you can only come to one conclusion.

The United States government is planning to do all it can to cover-up the crimes of the Bush Administration. It must find a way to blow off steam related to societal outrage over the torture, the unnecessary and deadly wars, the attacks on civil liberties. I expect we will hear more reports from the government like the whitewash report on current conditions at Guantanamo given by Admiral Walsh last month.

This will be a bitter truth for many to swallow. Just because you are popular doesn't mean such popularity can carry you forever if you advocate or protect an unjustifiable policy, as LBJ did on Vietnam. If Obama persists in protecting the torturers from any accountability, and even worse, maintains portions of the old Bush torture program, then he may yet face the political fate of LBJ in terms of loss of popularity, and possibly electoral opposition. But all that is years away, and what matters now is that we do not accept half-hearted or tainted efforts to investigate torture, but turn up the pressure for real investigations and prosecutions.

Obama and Holder should shelve their plans to appoint the tainted Fried and the obscure but suspicious Wiegmann and Wilson. A special prosecutor should be appointed and a blue ribbon panel with members of human rights groups, academia, labor, and the press to work alongside government officials in a real democratic review of the illegal detention and interrogation policies undertaken by this government.

Now that would be democracy in action. That would be... Change!


Tahoe said...

Hi, Valtin,

I just wanted to give you a "head's up" -- I will be sending you an e-mail (DD addy), hopefully, today. Reason? Something, hopefully, good, but can't, as a matter of discretion, post here.


Nell said...

Thanks for this post, Valtin. I read the Post story and couldn't tell whether Fried was a holdover or not.

Just on the most practical level, since a big part of his mandate appears to be to get other countries to agree to take release prisoners, wouldn't you think the new administration would appoint someone completely unassociated with Bush policies, to maximize the chance of those other countries accepting?

This seems like almost purposeful self-sabotage, which makes me wonder if the idea isn't to be able to claim, nine months from now, that "we've tried, but they're just too dangerous to release"...

Valtin said...

Tahoe, thanks. I'll be looking for it.

Nell, yes, I've pondered the meaning of it as well. In fact, as I've documented, there are some in Europe who are damn pissed off at Fried. I suppose the appointment comes off looking like typical American arrogance. But I suspect even something worse... that Fried's manifest program is to secure a placement for released prisoners, but his covert program is to cover up the rendition scandal, or get the Europeans in line for that.

Nothing says there's no real change like... well, no real change!

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