The Out of Control DoD Privilege Review Team

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.