an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
A True Story of Lies by the CIA, and Abuse of Power by Federal Prosecutors Who Will Do Whatever it Takes
The Bush Administration and the Republican Congress have spewed out a constant stream of exhortations about the need for secrecy, for allowing the CIA to do its job, and for trusting federal prosecutors. In this time of heightened concern about terrorism, it is not easy to appreciate the dangers of giving in to the demands of the Bush Administration (as just occurred with the Military Commissions Act). Opponents are painted as liberals or civil libertarians who exaggerate the potential danger with alarmist assertions and abstract concerns about abuses unlikely to ever happen.
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.
I am able to recount the details of this event because the assistant federal public defender was me, handling the case in the mid-1980s. 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.
You might think this could never happen in the U.S. legal system, but this bizarre story is true (doubters: check out U.S. v. Rewald), and played out in a federal court in Hawaii. After I relate a few other details of the case, the relevance to our present situation will be evident.
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. Although a number of former and then current CIA agents received money from Rewald, CIA officials claimed that they too were duped by Rewald, and never would have used him as a phone drop had they known about his criminal activities.
The scheme fell apart when a curious IRS agent happened to observe kids (Rewald's) being dropped off at school every morning in a limousine driven by a chauffeur. After a bit of preliminary checking, the IRS opened an investigation into the tax situation of Rewald and his firm.
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.
Now consider a bit of information about the prosecutors. The lead prosecutor in the Rewald case was Theodore Greenburg of the Department of Justice. His second was John Peyton, an Assistant United States Attorney in Hawaii. Curiously, prior to joining the U.S. Attorney’s Office in Hawaii, John Peyton was the Chief of Litigation in the CIA. Peyton claimed that his transfer to Hawaii soon after the inception of the investigation into Rewald’s activities was a pure coincidence, and had nothing to do with the involvement of the CIA in Rewald’s activities. Judge Fong denied our request to remove AUSA Peyton from the case, finding that he had no reason to question Peyton’s claim, although he also refused our request to order Peyton to produce the personnel records connected to his transfer.
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. In 2003, after he had spent almost 20 years in prison, Federal District Judge Lynn Hughes vacated Wilson’s conviction (289 F. Supp. 2d 801), observing:
In the course of American justice, one would have to work hard to conceive of a more fundamentally unfair process with a consequently unreliable result than the fabrication of false data by the government, under oath by a government official, presented knowingly by the prosecutor in the courtroom with the express approval of his superiors in Washington. (p. 816)
The court’s opinion identifies Ted Greenburg as the prosecutor who knowingly used the false affidavit. But he was not alone: “The court has identified about two dozen government lawyers who actively participated in the original non-disclosure to the defense, the false rebuttal testimony, and the refusal to correct it.” (p. 811).
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. [Of course, there are many superb lawyers in the Justice Department with integrity--Marty Lederman of Balkinization was one of them.].
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.
This post has gone on far too long, so I will quickly wrap up the story I began with. Rewald was convicted on mail fraud and tax charges and sent to prison. Thirty days after the trial ended, three lawyers from the Justice Department (including Ted Greenburg) flew back to try me on three counts of criminal contempt. Judge Fong recused himself at our request, and Federal District Judge Marilyn Hall Patel came from San Francisco to preside over my case. I prepared a motion to dismiss the charges on the grounds that I had not in fact asked questions that elicited unapproved classified information; indeed, in one instance the testimony identified by the prosecutors as inappropriate had actually come following a question interjected by Judge Fong. On the morning of my trial, while I sat at the table as a defendant, Judge Patel dismissed the charges against me with prejudice.
It's a harrowing story. I suspect, however, that it's either preaching to the choir (folks like me!) or will be dismissed out of hand by the folks who most need to hear it (the same people who will allege bias or inaccuracy or partisanship or whatever it takes for them to maintain their world view.) But it does raise the question, given this kind of anecdote, what can be done? What can a 2l do? What can Joe Sixpack do?
For me, I've set my quixotic sights on banging the repeal-aumf.org drum; the place to address all of the terrible developments we've been discussing is at the root of the "war" on "terror" zeitgeist itself.
Thanks for the cautionary tale; glad it had a happy ending on at least the personal scale.
I have long thought federal prosecutors have way too much power, and allowing them to suspend habeas corpus (if my understanding of the recent law is correct) sort of removes their last impediment to absolute power. Now they don't even have to try to make a case, they just get some helpful person in the administration to say the word and off to prison the accused goes, for as long as the government wants. Proof? We don't need no stinkin' proof! The law should really be called The Government's Never Wrong, Just Take Our Word For It Act of 2006. It's essentially the result. People think this will never be used against Americans (ie, white, non-terrorist Americans). I think they'll be proven wrong far sooner than anyone (except the government) thinks. Hell, the feds probably already have some targets in mind.
The fact that the prosecutors would seek to keep you from soliciting classified information in open court is not surprising to me. However, I would have thought that the prosecution would have filed motions in limine before discovery began to have the Court enter an order barring you from doing so.
Was there any attempt to do so?
I have a hard time envisioning a judge holding you in contempt unless you violated one of his or her orders barring such a line of questioning.
What a depressing story. Would've said "amazing" a few years ago, but no more.
And since this isn't a terribly responsive post anyway, maybe it's a good time to say thanks to all the posters at Balkinization. This blog has been invaluable -- heck, "amazing," even. You could all be spending the time doing something else, & we're lucky you aren't.
The trial was conducted under the Classified Information Procedures Act. We held closed CIPA hearing before and during the trial on what classified information was allowed in court. Judge Fong's contempt order was based in an alleged violation of his CIPA orders.
As to whether I was indeed guilty of this charge, the final paragraph says it all.
What should be clear from my account is that this was an attempt by the prosecutors to intimidate me in the middle of a trial, which they pulled off quite effectively. If you are going to draw any assumptions about the good faith of the Judge in this situation, I urge you to spend a bit of time looking in the case, and specifically into his conduct. Records of it are available.
Professor Tamanaha: As to whether I was indeed guilty of this charge, the final paragraph says it all.
Sadly, sir, for some it does not say all, and not all will even go back and look at it.
Quoting: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.(emphasis added)
Quoting:Judge Patel dismissed the charges against me with prejudice.
I'm embarassed to admit I had to double check that term, but presumably your attorney interlocutors on this blog knew what it meant...and simply chose to ignore it until their noses were rubbed therein.
... My experience is that they were only looking out for their next promotion ...
One of the basic needs of citizens in any country is a decent government. Decent not only in a sense of being decently competent but also decent ethically. We want people running it to be honorable folks with a sense of fairness and decency. Responsible, fair folks.
Sadly we seem to be out of luck, people even at the highest levels of the government appear to be anything but these days. Take for example this government reaction to Maher affair. That totally innocent guy was shipped by the FBI or CIA to Syria for the express purpose of interrogation involving torture.
Think about it. A government of decent people would immediately start an aggressive investigation. How did it happened, why our people went so bad, how do we prevent that from happening again, who do we punish, how do we redress it now?
Well that was the reaction of the Canadian government, the US government showed and continues to show no sign of being troubled by anything in it and refused to assist or participate in Canadian investigation in any way. They didn't even have simple decency to say we are sorry. And when Maher asked in US courts for some redress a federal judge threw it out of hand.
This willingness of the judiciary to assist to the level that would be uncomfortable even to East German judges is particularly galling. Fong, I'm afraid is not a judicial outlier, rather he represents prevailing attitudes.
Widespread lack of basic human decency at all levels of government, from CIA/FBI field agents to federal judges and prosecutors. Preoccupied with their promotions, or misplaced sense of duty they are willing to lie, willing to facilitate, willing to commit any atrocity in the name of whatever is being pushed by the system. Not longer members of the society, rather predators on it. Pounce on and sink your teeth in your victim. You will be rewarded.
[It didn't escape notice that one weak link in the investigation chain was a father of "two small children and a settled life in Washington", not some alledgedly blackmailable gay linguist ... yuk, yuk]
Did you say in your post that an IRS agent began a criminal investigation without any other probable cause than observing somebody used a driver and limo to drop their kids off at school? The IRS had to have more than just that didn't they? Maybe not, I guess.
A harrowing story, indeed, and, I fear, a sign of things to come. I guess my own paranoia's not so paranoid, after all. With the purges of the disloyal and the independent from all levels of the "unitary" executive branch, expect trouble from virtually any Federal source.
I am a former CIA officer and I represented Ed Wilson in the case mentioned in your story. Wilson was indicted in four different courts. In the first trial, he was acquitted. I am currently attempting to overturn Wilson's second conviction (in Virginia) where - just as in the Houston case - AUSA Greenberg told the Judge and the jury that Wilson had no contact with the CIA after retiring. The fourth conviction was in N.Y. The FBI agent in that case is currently pending trial for conspiring with the Mafia.