The Out of Control DoD Privilege Review Team

by Kevin Jon Heller

My long slow slide into complete disenchantment with the Obama administration continues.  Comes now, via my two favorite national-security law bloggers, Glenn Greewald and Scott Horton, a truly terrifying tale in which a nameless and faceless Department of Defense committee attempts to put Clive Stafford Smith, one of the world’s great human-rights lawyers, in jail for… trying to inform President Obama about the torture to which his client, Binyam Mohamed, has been subjected at Guantanamo Bay.  Greenwald:

In his quest to obtain key documents proving that his client was tortured at the hands of the Bush administration, Smith is now involved in a truly bizarre though revealing controversy, first reported last Thursday by The Guardian.  In February, Smith wrote a letter to President Obama urging Obama to authorize the release of evidence relevant to Mohamed’s torture so that Obama does not become complicit in covering-up crimes of torture (which is itself a crime).  Smith attached to his letter to Obama a 2-page memo detailing the facts proving his client’s torture.  But under the rigid rules of Guantanamo, all lawyers for detainees are barred (under threat of criminal penalties) from disclosing any information they learn from their clients — even if the subject of the communication is the torture to which their clients were subjected — without first obtaining the approval from something called the “Privilege Review Team,” a secret tribunal of Pentagon officials who monitor and censor all communications from Guantanamo lawyers.

As a formality, Smith submitted his letter to President Obama to this Privilege Review Team, naturally assuming (since Obama obviously has full security clearances) that it would be passed on to Obama without any problems.  Instead, the letter was sent back to Smith with the entire body of the memo — every word — redacted with black blocks, with only the “from” line left (see the unbelievable redacted memo here — .pdf) [kjh — scroll down to p. 4].  In other words, the Privilege Review Team blocked Smith from communicating to President Obama the facts surrounding his client’s torture at Guantanamo. Smith then sent that redacted memo directly to Obama along with a new cover letter informing Obama of the “bizarre reality” that “you, as commander in chief, are being denied access to material that would help prove that crimes have been committed by US personnel. This decision is being made by the very people who you command.”

As a response to that new letter, Smith and a colleague of his have now been summoned to appear before a Washington court on May 11, to answer a criminal complaint filed by the Privilege Review Team, alleging that Smith — merely by sending Obama the redacted memo — has violated the secrecy terms to which he is bound.  He faces up to six months in prison if found guilty.

Just think about that:  these Pentagon officials — who have long been accused of using their censoring powers to hide evidence of torture at Guantanamo — first blocked Smith from sending Obama any information about his client’s torture, and now seek to criminally punish him merely for notifying Obama of how extensively his letter to Obama had been redacted by that Pentagon agency.  If that isn’t the behavior of a lawless and tyrannical government completely out of control, it is hard to know what is.

One thing needs to be emphasized: President Obama is not the victim here.  He is the Commander-in-Chief.  He controls the Pentagon.  He is responsible for the actions of the Privilege Review Team.

He needs to do something.  Now.

7 Responses

  1. Yup, and what he needs to do is fire Gordon England, shut down the Office of Military Commissions, and replace every last one of the DOJ Civil Division lawyers assigned to the detainee cases.

  2. I think the only way to properly respond to these stories is no longer with outrage but with derision.  Sometimes you just have to marvel at them for their bureaucratic absurdity.

    On the one hand, if you’re a lawyer who advised the President that “harsh interrogation” methods on Mr. Mohamed (or any other detainee) can be carried out, then you can’t be prosecuted.  On the other hand, if you’re a lawyer who advised the President that “harsh interrogation” methods were carried out, then you can.  We have the wrong Heller writing about these issues — we need Joseph, not Kevin Jon!

    And a six month prison term?  That’s just long enough to write the prison memoir and get in shape for the book tour.   Mr. Stafford-Smith’s publisher should be giving these guys at the Pentagon a cut.

    But without being glib, I think what this story does show is how large and complex the apparatus of a state actually is.  It’s one thing to announce a policy of change and transparency and quite another to implement that change in culture.  International law and international lawyers have a tendency of anthropomorphizing the state into one entity, but it really is a diverse set of individuals with different outlooks and priorities that often conflict.  You’re not going to change the bureaucratic culture of the past eight years in three months, so I’m not ready to slide into complete disenchantment just yet.   That isn’t meant as an exculpation of the current administration’s behavior — outsiders who are concerned about these issues need to keep the pressure up — but more of a recognition that the path we’re on is going to be a bumpy one.   

  3. I’m unclear why this is contributing to your “long slow slide into complete disenchantment with the Obama administration”. Isn’t this a policy (being implemented by the Privilege Review Team) that originated in the Bush administration? It seems unrealistic for Obama to have personally reviewed every policy and doctrine, even relating to Guantanamo Bay, and approved the status quo. I would humbly suggest the problem is rather circular; the President was potentially unable to correct the problem policy because he wasn’t aware of the significance of it, and attempts to notify him would have been unsuccessful because of the policy itself.

    Now that it’s in the public eye and the President should be aware, of course, it is definitely incumbent upon him to take action to prevent this sort of thing going forward. If he fails to do so, then he deserves every bit of criticism leveled at him.

  4. Peter,

    Your point is well taken, but  — notwithstanding non liquet’s excellent point about the complexity of the state apparatus — human-rights lawyers and NGOs have bitterly criticized the Privilege Review Team for years.  So I don’t see how Gates and Obama wouldn’t be aware of the damage it has done in the past and could be expected to do in the future.  In which case, if Obama’s pretty talk about transparency had any meaning whatsoever — and his administration’s positions on the state secrets privilege, among other things, puts the lie to that — he would have eliminated the Team long before now.

    That said, if he addresses this issue immediately, the long slow slide will be arrested somewhat…

  5. I’m not sure what I like better. That they left the “From” line unredacted, or that they redacted the “To” line.

    This really is too much. And I supported Obama. But this is too much.

  6. This is a case where all the complexity in the world doesn’t stand up to one simple fact: theese have people have been cimmnitting crimes for seven years now. The proper thing to do is simply lock down the whole operation and take positive steps to deal with the mess. They are doing halk the job — figuringout what their actual policies are going to be, but even that is disturbing becasue at this late date there just really isn’t that much to figure out.
    The problem is that they are trying to keep everyone happy in places like DoD, DOJ, andCIA where the pressing need it to restore order and discipline from the top down.  They don’t want to punish people for “just doing their jobs”, but the ugly reality is that these people have have been subverting the laws of the United States for criminal purposes, and they MUST be held accountable for their crimes.

  7. Point taken, but the rule itself under contention here (disallowing attorneys from communicating what they’ve learned from detainee clients) has some prima facie validity if the intent is to prvent attorneys from funneling information back to a terrorist group about what the client has revealed (presupposing, of course, the detainees at issue are actually associated with terrorist groups, which may not be true in every case). It’s just the absurd application of that rule in this (and apparently other) circumstances we’re debating here, right?

    As for the state secrets position, if anyone expected Obama’s DOJ to instantly reject any possible application of the state secrets privilege for any reason, then those people are unrealistically naive. Out of the cases where the Bush administration attempted to argue the state secrets privilege existed, how many of those cases have come up for a hearing or court date since Obama took the helm? Two? To infer from two examples that Obama’s position on the state secrets privilege is no different from the Bush stance and thus all his transparency speeches were nonsense seems to presume there is NO appropriate use for a state secrets privilege, or that these two cases were particularly objectionable; I categorically reject the first possibility, if not the second, because I don’t know enough about the cases to make an educated judgment. What about Obama’s change in FOIA release policy back to a presumption of release, isn’t that significant in the transparency argument generally?

    (Note to self: write shorter sentences next time.)

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