Where are we headed? Look at where we've been.

by Kagro X

This will mark the second time in recent months that I've felt compelled to put up a post pointing to someone else's work, with little or no additional commentary. I'll set this up only by saying that if this rather shocking story has happened in the past, you've got to figure you're only in for more of the same in the future, and probably with worse results.

I'm talking here about the post by Brian Tamanaha at Balkinization.

The following cautionary tale will help make the risks more concrete. It is about a young federal public defender handling a case, United States v. Rewald, which involved the CIA and several hundred documents containing classified information. One day, about a month into the trial, following a grueling cross-examination by the defense attorney of a witness from the CIA, which clearly harmed the government’s case, the federal prosecutors asked the judge for a closed hearing. In the closed hearing, with only the lawyers and the judge present, the lead prosecutor, from the U.S. Department of Justice, requested that the judge hold the defense attorney in criminal contempt for asking questions of the CIA witnesses that elicited prohibited classified information in open court.

Despite the protestations to the contrary of the public defender, Federal District Judge Harold Fong immediately agreed with the prosecutor. At that very moment, he ordered that the public defender would be put on trial for three counts of criminal contempt 30 days after the completion of the ongoing trial. Judge Fong also ruled that the public defender would be entitled to representation by counsel, which signaled that the judge contemplated that the lawyer could be sentenced to a year or more in prison if found guilty. The ongoing trial was recessed for the remainder of the afternoon, but it resumed the next day as if nothing had happened.

How did Tamanaha come to discover this obscure case? He was the public defender in question.

To recap the hard-to-believe basics of the situation: in the middle of a trial, I was charged with three criminal offenses on the grounds that the questions I asked in open court prompted the witnesses to disclose classified information. At the time of these supposed offenses, the prosecutors objected neither to the questions nor the answers, and neither they nor the judge gave any indication of a problem until the moment the charges were lodged against me. So there I was, still handling the ongoing trial, but now also facing my own trial to begin 30 days after the current trial was over. Despite my compromised position, I was not allowed by the judge to withdraw as defense counsel, and our request for a mistrial in the ongoing case was denied. I continued to examine witnesses from the CIA, but now with pending criminal charges hanging over my head, and a real prospect of more to come.

What was at issue?

Rewald was running a Ponzi scheme. He set up an investment firm with a few initial investors, and sent out regular statements indicating unusually high earnings, which prompted additional investors to send money. Ultimately, he took in about $20 million dollars. Unfortunately for the investors, a significant proportion of the money was not actually invested. When the story broke, Rewald claimed that he set up the entire arrangement at the request of the CIA, to provide a cover operation to fund its activities in the Far East. [Please hold the snickering skepticism for a moment.].

The CIA admitted that they had a relationship with Rewald, but claimed that it was minimal. Rewald was merely a “phone drop.” He had a separate phone on his desk; a few CIA agents in the field carried a business card with that number, and Rewald’s only job for the CIA was to confirm to any inquirers that the person worked for him.

And how did Tamanaha allegedly endanger national security?

When he was informed by the IRS of the investigation, Rewald immediately notified his contact in the CIA and asked what he should do. The CIA then provided Rewald with three different stories to give the IRS investigators, and instructed him to pick one. To repeat: they provided Rewald with entirely false, concocted stories with the understanding that he would then give one of them to another federal agency in the middle of a criminal investigation.

All of this sounds shocking enough, but there is an even more chilling point. In the course of cross-examination, I confronted a CIA official with the document the agency sent setting out the alternative stories for Rewald to tell the IRS. The official admitted that none of the stories were in fact true. However, he insisted that they were not “lies.” He said that they were “creative stories.” When I asked him to tell me the difference between “lies” and “creative stories,” given that both are untrue, he said (I paraphrase):

“Untruths are not ‘lies,’ but 'creative stories,' when they are made up in the interest of protecting the country. And the CIA is protecting the country.”

This was the testimony of a high ranking CIA official, under oath, in federal district court. This kind of mindset, needless to say, can justify almost anything.

Did you catch that? The danger to national security was that the CIA admitted in open court that it would, as a matter of routine, lie to other federal agencies in the middle of an investigation if it helped them maintain the operations they considered necessary to the safety of the country.

Just for our further edification, Tamanaha adds this bit of information about the prosecutor in this case, Ted Greenberg:

Ted Greenburg was lead counsel for the Justice Department in a number of cases involving the CIA, including United States v. Wilson, which he prosecuted in the early 1980s. Wilson claimed in his defense that he was working for the CIA. At his trial, the CIA submitted an affidavit denying that he was working for them at the time.

Two decades later, the CIA finally admitted that the affidavit was false. Wilson was indeed working for them. It turns out, furthermore, that the prosecutors in the case knew that the affidavit was false, but used it at trial anyway.

Finally, Tamanaha sums it up, in understated style:

The relevance of this story for today should be obvious, and I will not belabor it. The CIA will lie (or tell “creative stories”)—so don’t believe what you read about CIA investigators stopping their harsh interrogations out of concern for liability—and lawyers in the Justice Department will do whatever it takes to win a case.

[...]


A thread that runs through this story is that the government actors involved were not necessarily bad people—they were simply doing what they thought was necessary to defend their country, and they used this end to justify their extreme conduct. That’s the problem. When combined with power and with an unwavering conviction in the correctness of one’s conduct, this mindset—which the Bush Administration oozes—can lead to terrible abuses.

Those many people who think that the MCA is nothing to be concerned about—“nothing bad will happen to good Americans, or to innocent people”—are being naïve.

Damn, that Balkinization is a good blog.

And damn, we're in a lot of trouble.

Comments

[Dismayed]

Yep. We are not far from a Communist China type of situation where if you speak out against the 'party' you get locked away on suspicion of some nebulous risk to the 'security' of the country. Padilla, to me seemed like the first bellweather in all of this. They slap the label terrorist on you and the just see if the word citizen means a damn thing. No rights, no due process. This isn't the United States of America that I was told I was so very lucky to be born into back in sixth grade. President Cheney has worked a long time to get rid of that U.S. He just needs one more election. Two weeks. Just two more weeks and we get to see the future. Wish I had an X-wing fighter on the pad.

[mainsailset]

When I read Prof. Tamanaha's accounting last week I felt like I'd been hit in the head with a sledge hammer. The words, anger and frustration we toss out here melded profoundly with the stark reality of his story. This is what happens when an Ends Justifies the Means mentality is nurtured amongst the very gatekeepers of our judicial system. It is a reality and now, thanks to this admin, this type of mentality is knocking at all our doors. Yes, Balkinization is a great blog but so is The Next Hurrah.

[notjonathon]

Guess I'm not so paranoid, after all. Given that this Administration has made a practice, even a fetish, of eliminating the "disloyal" or even the merely independent from every branch of the "unitary" executive, expect to see this kind of behavior from any representative of the Federal government.

[Mimikatz]

Time to brush up on a little Vaclav Havel, studies of resistance to Nazi Germany etc.

This does sound more like the Soviets under Stalin or China under the Maoists than the Nazis, in many ways, although the behavior of the judges in the case is more like the German judges. I guess it shows that people absorb the traits of the enemies they are obsessed with. So one shpuld keep some balance and not lose ones principles.

[Jodi]

People are still people, and the desire to kick the rocks over that hide undesirable things has increased as the people have become more sensitive to misuses of government.

The OTHER THING PERHAPS MORE IMPORTANT IS THE OPPORTUNITY.
With the internet, with the anom cell phone, it is easier than ever to expose nasty stuff and feel safe.

Sometimes an investigator doesn't need a source for where the body is buried. They just need the location. "Just send a map please."