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New Grand Jury Investigation On Torture, Or DoJ Smokescreen?

7:09 pm in Torture, Uncategorized by Jeff Kaye

Smoke Screen Protects Ships at Okinawa

Smoke Screen Protects Ships at Okinawa by England, on Flickr

News certainly travels fast, sometimes. While it took the U.S. government two years to reply to a request by a Spanish judge regarding whether or not the U.S. has instigated any investigations or proceedings against six high-level Bush administration figures named in a complaint by the Association for the Dignity of Spanish Prisoners (see PDF), and it took another three weeks to get the response distributed to the parties involved, and yet another three weeks to have the news of this response released to the world at large, it took less than 24 hours to learn that the entire case was dismissed by the Spanish judge on Wednesday.

In effect, Judge Eloy Velasco sent the case back to the U.S. at the request of the Department of Justice, who argued in their March 1, 2011 letter to the judge that the U.S. is plenty interested in investigating and prosecuting torture and other war crimes. Besides the cases of CIA contractors David Passaro and Don Ayala (Marcy Wheeler discusses the Passaro case here), assorted Defense Department prosecutions of “bad apple” abusers, and the lingering Durham investigation, the U.S. representation cannot dredge up any significant criminal investigations — except one (if it is one).

The letter rogatory to the Spanish court refers to “pending federal investigations by the United States Attorneys’ Office for the Eastern District of Virginia” on “various allegations of abuse of detainees.” (p. 3-4 of letter) In addition the letter refers to “pending status and legal restrictions on the disclosure of investigative information, including rules of grand jury secrecy”. Since there has been no previous reports on current grand jury proceedings in the Eastern District on detainee abuse that I know of, is this a reference to the former cases since sent from the Eastern District by Attorney General Holder in 2009 for review by special prosecutor John Durham? Or is this something new? Have some of the cases under preliminary review by Mr. Durham now reached full investigation status?

DoJ Keeps Mum on Virginia “Pending” Investigation

In response to such questions, Dean Boyd, spokesman for the National Security Division at the Department of Justice replied to me today, “There is nothing further I can provide to you on this matter beyond what is in the document.”

Since the U.S. representation to the Spanish court was meant to convince the judge that the U.S. was serious about seeking investigations and prosecutions regarding torture, it is important to know whether a new stage in the otherwise dilatory investigations by the Obama administration, who famously has announced it would rather look forward and not backwards when it comes to investigating torture, has been hereby announced, or whether this was a con job by DoJ, describing the Eastern District grand jury as somehow still in play, when in reality, its actions on detainee abuse are non-existent, waiting for some determination of the review by Durham and his office.
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AP: CIA Gave $5 Million to Mitchell-Jessen Defense

7:46 am in Torture, Uncategorized by Jeff Kaye

Five million dollars for legal defense; what next, a medal for videotaped waterboarding? (graphic: Mike Licht, NotionsCapital.com via Flickr)

Adam Goldman and Matt Apuzzo at Associated Press report this morning on the CIA’s largesse in helping fund the legal defense for their former SERE psychologists contractors-cum-torturers, Bruce Jessen and James Mitchell. This shouldn’t come as much of a surprise, but reading about it turns one’s stomach.

The secret agreement means taxpayers are paying to defend the men in a federal investigation over an interrogation tactic the U.S. now says is torture. The deal is even more generous than the protections the agency typically provides its own officers, giving the two men access to more money to finance their defense.

The two psychologists were the proprietors of Mitchell-Jessen and Associates, who sold their expertise in waterboarding and other psychological and physical forms of torture, formerly applied in teaching U.S. military personnel how to withstand torture, for the torture of Abu Zubaydah, Khalid Sheikh Mohammed, Abd al-Nashiri, and possibly others. The article describes how the contractors anxiously importuned their superiors to destroy the videotapes of their torture. After the CIA complied, and the Justice Department launched a criminal investigation with the accompanying scandal, the kabuki over the atrocities played out, paid for entirely from scarce taxpayer dollars, ending with a decision by feckless special prosecutor John Durham, not to prosecute anyone, whether for torture, destruction of evidence, obstruction of justice, or anything.  . . . Read the rest of this entry →

NYT Releases Unredacted Report on “U.S. Aid for Ex-Nazis”

10:19 am in Uncategorized by Jeff Kaye

The New York Times has released a full unredacted version of the Department of Justice’s Office of Special Investigation (OSI) report, “Striving for Accountability in the Aftermath of the Holocaust.” According to NYT reporter Eric Lichtblau, “The Justice Department has resisted making the report public since 2006.” A “heavily redacted” version was released last month to the private National Security Archive (NSA), and now a leaked version of the entire document has been released to the public.

According to a November 13 NSA press release:

The National Security Archive posted today its original FOIA request, the government’s response, our appeal by counsel David Sobel, the legal complaint in the case National Security Archive v. Department of Justice, the interim response from DoJ, the “Vaughn index” of withheld pages and alleged justifications for the withholding, and the 45 pages of partial and highly-redacted response.

The evocation of words like “accountability” in the context of suppressed documents, leaks, and war crimes has an eerie resonance in the context of the current struggle to gain accountability for current and recent U.S. war crimes surrounding the methods by which “intelligence and facts were being fixed around the policy” of invading Iraq, the widespread use of torture and extraordinary rendition by the government and its allies, and a policy of illegal human experimentation on “war on terror” prisoners.

The fact that DoJ would still be trying to hide information from decades-old files surrounding the U.S. recruitment of Nazi war criminals does not bode well for those trying to force the U.S. government from President Obama’s “Don’t Look Back” policy towards war crimes. In fact, it took almost fifty years to get a significant opening of U.S. archives to look at government actions at the close of World War II. The NYT leaked document is but the latest in a string of revelations about the use of both high and low ranking Nazis by the U.S. government. Author Christopher Simpson wrote the first major book, Blowback: America’s Recruitment of Nazis and Its Effects on the Cold War, documenting this history in 1988, followed by Linda Hunt’s excellent Secret Agenda: The United States Government, Nazi Scientists, and Project Paperclip, 1945 to 1990, and other books, many of them unfortunately now out of print.

Anyone wanting to become an archival researcher in Nazi or Japanese war crimes can begin at the National Archives webpage for the Interagency Working Group (IWG), where there are links to tens of thousands of documents and millions of pages from the files of the CIA, FBI, military intelligence, OSS and other agencies. The IWG issued their Final Report of the Nazi War Crimes and [Japanese] Imperial Government Records Interagency Working Group in April 2007, and is available online.

Revelations on U.S. Recruitment of Nazis

The OSI report is not without its new revelations. According to Lichtblau:

The full report disclosed that the Justice Department found “a smoking gun” in 1997 establishing with “definitive proof” that Switzerland had bought gold from the Nazis that had been taken from Jewish victims of the Holocaust. But these references are deleted, as are disputes between the Justice and State Departments over Switzerland’s culpability in the months leading up to a major report on the issue.

Another section describes as “a hideous failure” a series of meetings in 2000 that United States officials held with Latvian officials to pressure them to pursue suspected Nazis. That passage is also deleted.

In its paranoia and animus against its former Soviet ally (a paranoia and animus that ran in two directions), the United States turned to the recruitment of former Nazis in an attempt to gain intelligence and military superiority over the Soviet Union. The Times article describes how the report details the stories of infamous Nazi war criminals protected by the United States.

There was Arthur L. Rudolph, a Nazi scientist who used slave labor to operate Mittelwerk underground factories that produced the V-2 rocket. Twenty-five thousand slave laborers perished in the terrible conditions and treatment meted out at Mittelwerk. But Rudolph was protected from prosecution and went on to work for NASA as a primary designer of the Saturn rockets that took U.S. astronauts to the moon.

The article also notes the CIA’s recruitment of “Otto Von Bolschwing, an associate of Adolf Eichmann who had helped develop the initial plans ‘to purge Germany of the Jews.’” The Times article gentlemanly forbears the whole story, which was revealed in a 2006 UK Guardian story on new information found in a massive release in that year of CIA documents on its Nazi past. (CIA watchers should note the ironies entailed in the fact the release was approved by then CIA director Porter Goss.) Von Bloschwing, it turns out, had also been Heinrich Himmler’s representative in Romania.

According to the UK Guardian:

After the war Bolschwing had been recruited by the Gehlen Organisation, the prototype German intelligence agency set up by the Americans under Reinhard Gehlen, who had run military intelligence on the eastern front under the Nazis. “US army intelligence accepted Reinhard Gehlen’s offer to furnish alleged expertise on the Red army – and was bilked by the many mass murderers he hired,” said Robert Wolfe, a historian at the US national archives.

Of even more interest, perhaps, was the U.S. recruitment of Nazis and war criminals for its clandestine secret military groups after the war. Such secret armies were organized across Europe in the aftermath of World War II, and were later implicated in a number of right-wing terrorist actions and coups. The headquarters for this was ultimately centered in the NATO high command, and its various activities, including false flag operations to implicate leftists as terrorists became known as Operation Gladio.

Again, from the UK Guardian article:

Alongside the Gehlen Organisation, US intelligence had set up “stay-behind networks” in West Germany, who were supposed to stay put in the event of a Soviet invasion and transmit intelligence from behind enemy lines. Those networks were also riddled with ex-Nazis who had horrendous records.

One of the networks, codenamed Kibitz-15, was run by a former German army officer, Lieutenant Colonel Walter Kopp, who was described by his own American handlers as an “unreconstructed Nazi”.

A more detailed description of the U.S. organization of stay-behind networks is told in an essay by Timothy Naftali at the University of Virginia (PDF).

The New York Times is to be commended for the release of this important new document, whose 600-plus pages will take awhile to be fully digested. The Times also was one of four news outlets to release, against considerable government pressure, the Wikileaks war logs from Iraq and Afghanistan. But the Times editorial stance for accountability for torture has not been met with action by the U.S. President, Justice Department, or Congress. The Democrats had two years of full control of both houses of Congress and never brought any substantive hearings or investigations on the issue of torture or the machinations behind the invasion of Iraq. While there is no doubt that much was withheld from Congress by the Pentagon and White House, the Democrats demonstrated no appetite to press for accountability, and this will be their ignoble legacy.

We must not wait fifty, sixty, or seventy years for the truth about recent and ongoing war crimes to come fully out, and for accountability for these crimes. It appears that will only happen if the citizens of the United States take history into their own hands and form new political entities or parties capable of handling the truth and meting out justice. Such new political forces will be unlikely to stop there, and turn towards implementing the kinds of change we desperately need in this society.

U.S. Legal Actions, UK Inquiry: Noose Tightens on Torture Criminals

10:05 pm in Uncategorized by Jeff Kaye

Before taking up the question of the UK torture inquiry, announced the other day, we should consider other important developments on the anti-torture front today.

Omar Khadr, captured as a child, abused, mistreated and tortured for years at Guantanamo, has fired his military attorneys — most likely because he seeks some method to exert control over his situation. God knows how we would respond if placed in his situation.

Meanwhile, Daniel Shulman at Mother Jones has posted an article describing two new actions taken to strip licensure from two former Guantanamo psychologists, Major John Leso and retired Colonel Larry James. James is now dean of the professional psychology program at Wright State University in Ohio, and was the subject of a complaint against him in Louisiana, which was dismissed by the Louisiana State Board of Examiners of Psychologists, and subsequently brought to the Louisiana Court of Appeal. Leso is the infamous "Maj. L" in the interrogation log released by Time Magazine some years ago in the torture case of Mohammed Al-Qahtani.

Both Leso and James were members of the Behavioral Science Consultant Team, or BSCT, at Guantanamo. Indeed, James was in charge of the BSCT while he was there. The complaint against Leso, filed by the Center for Justice and Accountability, can be viewed here. The James filing — the work of Harvard Law School’s International Human Rights Clinic — is available in PDF format.

These filings were separate from yet another complaint, this one filed with the Texas State Board of Examiners of Psychologists, against James Mitchell, one of the principals for CIA torture contractors Mitchell-Jessen and Associates, who has also been identified as one of the interrogators involved in reverse-engineering SERE techniques for the interrogation-cum-torture experiments made upon Abu Zubaydah in the spring and summer of 2002. (PDF link to full document here.)

These actions have been taken in the context of the refusal of the Obama administration to undertake the necessary criminal investigations against the work of torturers under governmental employ during the Bush/Cheney era. While there is a secret investigation supposedly underway in the Senate’s Select Committee on Intelligence, congressional oversight and action on the subject of interrogations has been minimal. While the Senate Armed Services Committee conducted a wide-ranging investigation of the spread of SERE-style torture in the military, the committee refuses to release a less-redacted version of their report, and moreover, issued their findings without recommendations. Even worse, they allowed SERE psychologists, like James Mitchell, to remain in charge of Special Operations battlefield interrogations and detention.

Keeping the lid on the torture scandal is the SOP of the Obama administration lately. According to a July 2 report by Mike Scarcella at The Blog of Legal Times, the Holder Justice Department has filed hundreds of papers in court arguing against an ACLU suit "that blacked-out passages in the [Office of Professional Responsibility] report [on the Office of Legal Counsel torture memos] should remain confidential in the interest of national security and the privacy of government lawyers."

It is in the context over this war over information and accountability that we must look across the Atlantic to see what is unfolding in the United Kingdom, where the new British administration of Prime Minister David Cameron (with coalition partner Nick Clegg) announced that there would be a "judge-led investigation" of the complicity of UK intelligence personnel in the torture of detainees in the U.S.-led rampage that incarcerated an untold number of prisoners, rendered them to countries that would torture, or sent them into CIA secret prisons. These crimes were committed in part to coerce "intelligence" and confessions that would link Saddam Hussein to Al Qaeda, the better to drum up fake evidence to justify an unprovoked attack upon Iraq.

UK Torture Inquiry Questions

The announcement of the UK inquiry has been met with a mostly uncritical positive reception in the U.S. And who can blame the American human rights, anti-torture and civil liberties movement? They’ve had to put up with the "don’t look back" policy of President Obama, not to mention the latter’s embrace of Bush-era positions on the wars in Afghanistan and Iraq, indefinite detention, support for the Army Field Manual’s Appendix M, governmental secrecy, and even this administration’s own operation of black site prisons (run now by JSOC, not, apparently, the CIA).

A press release by the ACLU captured the general attitude of U.S. opponents of the Pentagon/CIA torture program:

"An investigation into the role of government personnel in the abuse and torture of prisoners is exactly what the Obama administration should be initiating. And while we welcome Prime Minister Cameron’s commitment to ensuring that torture survivors are acknowledged and compensated, this announcement also serves as a reminder of how little has been done here in the United States to reckon with the abuses of the last nine years," said Jameel Jaffer, ACLU Deputy Legal Director.

While the sentiment is understandable (see a similar statement by Tom Parker at Amnesty International), even though we dearly need an investigation, it is not certain that the UK inquiry is exactly what the doctor ordered. The British press and human rights agencies, while approving of Cameron/Clegg’s decision to make good on their campaign promise and initiate an investigation into UK intelligence services complicity with torture, are dubious about the details of how the investigation will proceed.

For one thing, proceedings will be held in secret. While the three-person investigating panel will have ample access to UK documents, they will not be allowed to study U.S. documents. Moreover, the inquiry cannot begin until all current criminal and civil complaints are settled. This led U.S. blogger-commentator Marcy Wheeler to wonder if the inquiry weren’t meant in part to limit the disclosures that could still surface if the cases now outstanding were adjudicated fully.

The investigation panel is supposed to include Dame Janet Paraskeva, head of the civil service commissioners, and retired journalist Peter Riddell. No less a UK government critic than Craig Murray finds these two to be independent-minded and fair (though some question their experience in these matters). But Murray — and as we’ll see, many others — is concerned about the ex-judge Sir Peter Gibson, named to head the investigation.

The 76-year-old Gibson is an odd choice, especially, as John Ware at BBC Panorama put it, "for an inquiry deemed to be fully independent." He is closely linked to intelligence circles, as he is Intelligence Services Commissioner, responsible for monitoring secret bugging operations by MI5, MI6 and GCHQ (Britain’s version of the NSA). In the past, Gibson has refused to say how many instances of bugging have taken place, because it would “assist those hostile to the UK”. There has also been some criticism regarding Gibson’s propensity for secrecy.

Peter Oborne at the UK Daily Mail has more to say about Gibson and "judge-led" "independent inquiries:

Sir Peter is a thoroughly acceptable figure to British spies because he has been Commissioner of the Intelligence Services since 2006, and was reappointed only last year.

Most of his work is carried out away from the public eye, but I have heard no reports of Sir Peter asking probing questions of MI5 and MI6 bosses over the past few years, despite the publication of a mass of troubling material during that period.

This is not the first time Gibson has been asked to head a secretive investigation, as he also led the inquiry into the 1998 IRA Omagh bombing, after a BBC report that GCHQ withheld info from the police that could have led to an interdiction of the bombers. The report itself was, of course, kept secret, but there were many questions about how Gibson conducted the affair. According to John Ware:

Sir Peter’s report, published in January 2009, angered relatives of Omagh’s victims and survivors when it focused only on whether the Omagh bombing could have been stopped. He concluded it could not have been.

Sir Peter later acknowledged he "deliberately did not" investigate why intercepts that he found had been shared between GCHQ and Special Branch were not also shared with the CID.

He told MPs on the Northern Ireland Affairs Committee (NIAC) that he had not seen it as part of his remit to "go into questions like why certain things were done or not done".

An mixture of hopefulness and ominous foreboding emanates from British anti-torture human rights groups. Addressing worries that the inquiry will focus on lower-level interrogators and let government officials like former Prime Minister Tony Blair off the hook, London director of Human Rights Watch said, "To be credible and to get to the bottom of what went wrong, any inquiry must be as public as possible, examine all cases of alleged complicity that are brought to its attention and examine the degree to which decisions by UK ministers and officials contributed to abuse."

The British human rights group, Reprieve, who like the U.S. Center for Constitutional Rights, sponsors many attorneys currently defending Guantanamo prisoners, noted a number of concerns about the proposed inquiry. Top on the list of concerns is the pervasive secrecy surrounding the investigation. Not only will they be held in secret, but only the Prime Minister can decide what will be made public in the proceedings or final report. "Under the Government’s plan," Reprieve reports, "there is no formal mechanism for civil participation — so Reprieve and other civil organisation[s] will not be allowed access to documents and proceedings."

Another outstanding demand is that the government produce the old, secret official policy that governed UK intelligence agents. The new policy, itself recently published, still allows unnamed "ministers" the ability to approve "cruel, inhuman or degrading treatment or punishment": "…a wide spectrum of conduct and different considerations and legal principles may apply depending on the circumstances and facts of each case." What, Reprieve asks, were in the old rules, if these are the new rules? Any real inquiry would make this public.

What Now?

The no-accountability policy of the Obama administration has proven bankrupt, and recent legal actions taken against Leso, James, and Mitchell are laudable and hopefully will provide a decent chill among those health care providers who serviced (or still serve) the CIA and Pentagon torture and human experimentation programs. The UK inquiry certainly is a response to a societal repulsion in Great Britain against crimes against humanity, and perhaps, at a remove, to the widespread hatred of Britain’s participation in the U.S.-led wars in Iraq and Afghanistan.

But it would be naive to believe that the British government, which sees itself as the best ally of the U.S. intelligence services, will open itself up to the kind of scrutiny needed — not without a fight. To agree to the form in which the investigation is now proposed threatens to direct the fight for accountability and justice into a blind alley. As Peter Oborne reminds us, we should remember that other "judge-led" inquiry/cover-up in 2003, when "Lord Hutton’s investigation into the death of government scientist David Kelly… failed to ask the right questions, while reaching conclusions that flew in the face of evidence."

In addition, instead of sparking a renewed bid for a real investigation in the U.S., which is the fond hope of many anti-torture activists, a limited hang-out in the UK will only stifle the movement for accountability in the U.S., as enthusiasm for an open inquiry and prosecutions of high government officials is buried by demoralization and a feeling of futility.

It doesn’t have to be that way. Activists can support the moves by Britain to have an investigation into Britain’s role in torture, while demanding that it be a real investigation, with open, televised hearings (as much as is feasible), the inclusion of civil organizations, such as Reprieve, and a published protocol that includes a programmatic insistence that all lines of evidence will be followed, no matter how high up the governmental ladder such inquiry leads, and no matter what other countries’ crimes may also be implicated. One could start by refusing to accept the appointment of Peter Gibson as head of the investigating panel.

Those who sponsored, support, and defend the torture and rendition programs of the past ten years must feel the noose of real justice tightening ever further around them, and they will fight with all their might and subterfuge to protect themselves and the monopoly of state violence and terror they administer. We must take this opportunity and push even harder to have a real investigation, one that will truly bring justice, and a giant step toward the complete abolition of torture and cruel, inhuman, degrading treatment of prisoners everywhere. That was the program of the European and American Enlightenment, and over 200 years later, it must be our program, too.

Why Did Obama Join Reactionaries in Dumping on ACORN?

5:10 pm in Uncategorized by Jeff Kaye

The following is a repost from a diary I posted at Daily Kos on June 17, 2010. The 300 or so comments there make for some interesting reading, and I’ve reposted the original diary here because for whatever reason the news it reports remains largely unreported in the progressive community. I’d also recommend reading this in conjunction with David Swanson’s Seminal/FDL post, We Need ACORN.

+++++++++++++++

I was reading a great posting by powwow at FDL’s The Seminal this morning. It reviewed David Cole’s remarks on President Obama’s refusal to apologize for the U.S. government kidnapping/rendition to torture of Canadian Maher Arar. Daphne Evitar and Something the Dog Said already diaried on that, to little notice here at Daily Kos.

But farther down powwow’s article I discovered something initially reported last April, but appears to have gone without comment or notice here: that after all the verbiage about how the right went after ACORN, how ACORN was unfairly set-up by right-wing operatives, complete with doctored video… when a U.S. judge ruled that Congress’s bill of attainder attacking ACORN was unconstitutional, the Obama administration backed up Congress, and defended the attack on ACORN.

Who would have thought Obama, the vaunted one-time community organizer, would join with the right to attack community organizers?

We know now that the whole ACORN video incident was a setup and a scam, and that ACORN employees did nothing illegal. Just earlier this month a Congressional report cleared ACORN of any wrongdoing (after ACORN had dissolved itself to reform under a new name). A diary noting the courage of Senator Kirsten Gillibrand in not voting for the illegal bill of attainder against ACORN hit the recommended list here at Daily Kos as recently as January 28 of this year. See also this highly recommended April 9 diary asking "ACORN exonerated: The tapes were edited. Will the media retract and apologize?"

But when, after Federal District Judge Nina Gershon struck down the illegal ban on funding for Acorn on March 12, the Obama administration appealed this decision to the Second Circuit Court of Appeals. I have never seen this reported at Daily Kos.

Here’s how it was reported at Law.com back on April 21 (emphasis added):

A federal appeals court was asked Tuesday to allow enforcement of legislation stripping the embattled activist group ACORN of government funding….

Tuesday, [Mark] Stern was asking the circuit for an emergency stay pending appeal of a March decision by Eastern District Judge Nina Gershon, who granted a preliminary injunction blocking enforcement of the funding restrictions.

Gershon found that the legislation was an unconstitutional bill of attainder, a rarely litigated bar in the U.S. Constitution (Article I, Section 9) on legislation punishing a single person or group.

She denied the government’s motion for a stay pending appeal on March 31 and Stern headed for the 2nd Circuit, where he argued Tuesday before Judges Roger J. Miner, Jose A. Cabranes and Richard C. Wesley in ACORN v. United States, 10-992.

Stern claimed that Congress had the right to instruct agencies to withhold funding from ACORN amid "indisputable reports of ACORN mismanagement nationwide."

"This is a case of taking steps on the appropriation of federal funds," Stern said. "And if Congress sees widespread mismanagement, it says ‘time out.’"

WTF? ACORN had already been cleared by this time. What is Stern and the Obama DoJ talking about? And, btw, don’t tell me Stern is a right-wing Bush left-behind. Stern’s years at DoJ go back to the Clinton administration, and he received a DoJ special commendation award in 2007 for his work in the U.S. v Philip Morris landmark case.

What’s worse is that the role of the Obama administration in perpetuating the right-wing attacks on ACORN goes unremarked by the Daily Kos community. That smacks of hypocrisy to me, though more likely it is simply a willful blindness to the bad policies of the Obama administration, a blindness born of misplaced loyalty and a deep wish for change.

So what say you, Obama loyalists? How can you alibi this betrayal? More nice pictures of the First Family?

I’m getting tired of Obama’s lies: on secret prisons, on torture, on supporting community organizers, on FISA, on indefinite detention, on transparency. Jon Stewart captured some of the hypocrisy of the Obama administration the other day in a brilliant routine at The Daily Show.

The Circuit Court, by the way, reserved decision on the ACORN appeal from the Obama DoJ, and in the meantime left the ban on funding in place, until the appeal was decided.

Leahy Calls One-Day, One-Witness Hearing on OPR Report: Who is Gary Grindler?

12:51 am in Uncategorized by Jeff Kaye

“Do you know who the Rosenbergs are?” [the agent] asked.

“I heard of them, yeah, I heard them mention,” Dr. Lee said.

“The Rosenbergs are the only people that never cooperated with the federal government in an espionage case,” she said. “You know what happened to them? They electrocuted them, Wen Ho.”

I couldn’t find much online about Acting Deputy Attorney General Gary Grindler, the man tapped by Sen. Patrick Leahy to appear at the Senate Judiciary’s hearing this Friday, February 26 (H/T Bob in AZ).

The one-day minimal hearing is supposed to show the Senate registering oversight on the OPR report and the Margolis intervention to clear John Yoo and Jay Bybee of "professional misconduct" in the torture memos affair.

Did I say that Mr. Grindler is also considered an excellent attorney, having won the The Best Lawyers in America award in the area of white collar criminal defense?

I also see that he played a minor role in the controversies around the Wen Ho Lee investigation and incarceration. At the time (circa 1999-2000), Mr. Grindler was Principal Associate Deputy Attorney General in Janet Reno’s DoJ. Wen Ho Lee, a Taiwanese-American, had been a scientist at Los Alamos National Laboratory in New Mexico for approximately 20 years prior to his arrest.

The situation was this: the FBI and DoJ had bungled their investigation of possible spy Wen Ho Lee so badly that the supposed evidence in the case was hopelessly compromised. Nevertheless, after he was arrested, Lee was placed under onerous Special Administrative Measures (SAM). Ultimately he spent nine months in strict solitary confinement, until he agreed to a plea agreement on a felony count of improperly downloading Restricted Data. He was released from custody and served no subsequent jail time.

According to a Senate investigation in 2001:

Specifically, Dr. Lee’s confinement consisted of 24 hour supervision by a rotation of guards, permission to speak only with his attorneys and immediate family members (his wife, daughter and son) and in English only, non-contact visits from his immediate family members limited to one hour per week, no personal phone calls, and that he remain secured in his cell 24 hours a day./246/ Further, Dr. Lee was to remain in full restraints (leg and hand irons) anytime he was to be out of his cell being moved from one location to another./247/

As previously noted, Dr. Lee’s lawyers protested his conditions of confinement almost from the beginning.

An Internet site set up to support Dr. Lee elaborated on his situation:

A chain around his belly connecting to his handcuff prevents him from raising his hand above his head. We were told that two U.S. Marshals with machine guns accompanied him whenever he goes within the confine of the prison and a ‘chase car’ with armed Marshals follows Dr. Lee when he is moved from Santa Fe to Albuquerque and back.

The judge who initially denied Dr. Lee a pretrial release, nevertheless admonished the government “to explore ways to loosen the severe restrictions currently imposed upon Dr. Lee while preserving the security of sensitive information.” But the government wouldn’t have any of that. As to the kind of interrogation Dr. Lee received, a small piece of the transcript is quoted at the lead of this article.

When Janet Reno told Gary Grindler that there were protests about Lee not getting enough exercise time, Grindler wrote a memo back to her:

A January 12, 2000 memorandum to the Attorney General from Principal Associate Deputy Attorney General Gary Grindler demonstrates that at least some of the concerns of Dr. Lee’s lawyers were taken to the highest reaches of the Justice Department. The memo notes that the Attorney General had “advised that some individuals have expressed concern about Dr. Lee’s access to exercise,” and explains that the order for Special Administrative Measures that she was being asked to sign “does not limit Dr. Lee’s access to exercise. According to the Santa Fe County Jail rules, Dr. Lee will be limited to one-hour per day of exercise, as are all administrative segregation prisoners.”

I can’t access the memo, but I wonder if Grindler mentioned that the exercise hour was conducted in shackles, and continued so until July 2000.

The Senate Judiciary Subcommittee on Department of Justice Oversight concluded:

While the government may have believed such harsh conditions were necessary, they have not made a convincing case. Judge Parker was not convinced by the government’s arguments, and granted Dr. Lee’s renewed motion for pretrial release on August 24, 2001. In his remarks at the plea hearing, Judge Parker expressed his sentiments, telling Dr. Lee that “since by the terms of the plea agreement that frees you today without conditions, it becomes clear that the Executive Branch now concedes, or should concede, that it was not necessary to confine you last December or at any time before your trial.”

…. After careful review, it becomes apparent that the government was right to reach a plea agreement with Dr. Lee, whose actions did constitute a serious threat to the national security, but was wrong to hold him virtually incommunicado in pretrial confinement for more than nine months.

Not too much to go on here, but Grindler’s association with abusive conditions of imprisonment should be explored, given the nature of his testimony and appearance in this context. But leaving aside Grindler and the issues associated with him, Leahy’s hearing feels almost like a joke, a kick-in-the-teeth to those of use who are extremely concerned and disgusted about the way this country has handled the torture issue. Where is Yoo? Bybee? David Margolis or Eric Holder? These are the people you’d think any competent Congressional committee would call on the carpet. But all the power of Congress these days vis-a-vis the Executive Branch appears it could fit in a teacup.

As psychologist-activist-blogger Stephen Soldz put it in an article on the OPR report and Margolis memo:

A beautiful job, now completed by Obama-Holder Justice Department hack Margolis. Future lawless administrations now have a ready template to use to provide legal rationale for any abuses they desire.

As a postscript to this story, it should be noted that:

In June 2006, Lee received $1.6 million from the federal government and five media organizations as part of a settlement of a civil suit he had filed against them for leaking his name to the press before any formal charges had been filed against him. Federal judge James A. Parker eventually apologized to Lee for the government misconduct of which he had been the victim.