Remembrances of things past

Yesterday provided some serious parallax. Watching the same coverage five years later got me thinking. I’d gone back over some of the things I’d been writing and thinking back then, and I have to say, I was astonished.

Among the most surprising, was an exchange I had with Jack Shafer, the brilliant media critic and then deputy editor of SLATE, in early December 2001. It was almost immediately after Bush had first proposed establishing Military Tribunals-- before Gitmo, before Hamdan, before all of it. Back then I’d pitched a piece that argued that the reasons proffered by the administration were nonsense--that the real reason behind the tribunals was to legitimate torture.

I pitched that piece to several places. No one would run it. I found it interesting to look back—not only at my old AOL address, and my cranky style, but also because of just how credulous even the skeptics at serious media outlets were back then. Here’s the exchange…


From: DavidF
Sent: Sunday, December 09, 2001 12:43 PM
To: Judith S
Subject: The Torture Conundrum...


I'd like to do a piece that argues that what the tribunals are about is
not safeguarding secrets about terrorism but making torture a part of
the legal process--that they were created to do an end run around the
evidentiary rules barring the admission of coerced confessions.



-----Original Message-----
From: Jack Shafer
Sent: Monday, December 10, 2001 1:21 PM
To: Judith S Michael K
Subject: RE: David Feige on military tribunals

Does he have anything more than speculation to go on?


From: David F
Sent: Monday, December 10, 2001 8:08 PM
To: Jack Shafer [mailto:jacksh@microsoft.com]
Subject: RE: David Feige on military tribunals

It is precisely because we are not allowed to know any concrete details
that some speculation is necessary. However my thinking in this is not
whimsical. I have spent over a decade watching the criminal justice
system make allowances for bad facts (though none as bad as the tragic
deaths of thousands of innocents). I have a good sense of the
deviousness of prosecutors and cops especially when they believe they
are in the right and justified in their actions.

And of course, beyond my own experience, I base my opinion on the


1. The N.Y. Times, The London Times and the Washington Post ran articles suggesting that the FBI was actually considering torture back at the end of October.


2. Not too long afterwards the justice department established the
military tribunal system. It is designed to both to protect our secrets
and to insulate our methods from outside (including judicial) scrutiny.
One of the main features of its design is to essentially suspend the
traditional rules of evidence--almost certainly allowing the FBI to
cross the traditional borders in interrogation tactics and still
successfully prosecute.

It is a terrifying but not illogical leap to argue what I believe--that
this is much more about keeping our abuses out of the public eye than
keeping our secrets out of our enemy's hands.


-----Original Message-----
From: Jack Shafer [mailto:jacksh@microsoft.com]
Sent: Tues. Dec. 11, 2001 11:16 AM
To: DavidF
Cc: Judith S; Michael K
Subject: RE: David Feige on military tribunals

Isn't the easier explanation for military courts that the evidentiary standards are lower, the juries aren't made out of civilians, and, primarily, that the offenses violate military codes and not just criminal ones -- not that the courts want to beat confessions out of the accused? Wasn't all of the talk about torture that you cite in the context of preventing another 9-11, not in securing convictions?
I'm all ears, by the way. So drop me another line if you want to discuss this.



From: DavidF
Sent: Tuesday, December 11, 2001 5:20 PM
To: Jack Shafer
Cc: Judith S; Michael K
Subject: Re: Military Tribunals


I'd love to bend your ear about it--so read on or give a call.

You are absolutely right--those are the easier explanations--and
sensible ones to boot which is precisely why they are proffered by the
administration. However, most don't stand up particularly well under
closer scrutiny.

You are right to suggest that 'the evidentiary standards are
lower'--that's exactly the point. What kind of evidence would be
inadmissible in a traditional trial that could come in at a military
tribunal? Almost exclusively this type of confession evidence and
evidence derived from it. Sure there are certain instances in which the
government gets into trouble because it doesn't want to give up a
particular informant (this causes confrontation problems). But time
after time, they have successfully prosecuted people in those
situations--sometimes by requiring judges to be security cleared before
hearing the evidence, and sometimes finding other ways to protect their
informants, including in the deportation context, the use of secret
evidence. But it's important to note that even in the secret evidence
cases, Judges are involved and appellate review is possible.
Interestingly, as the Times reported yesterday, what has been most
striking about the secret evidence cases is just how flimsy the secrets
turn o ut to be--often little more than hearsay or innuendo.

Also, as far as 'the offenses violate military codes and not just
criminal ones' rationale, the key words are 'not just'. I can't think
of an offense that is not already a crime under existing law that would
be covered by a military tribunal--not a one. All the crimes, drugs,
violence, money--all are currently illegal. The sweep of the criminal
law is already vast--and if not vast enough, it is a simple enough
matter to pass a quick bill making some other conduct illegal, without
changing the entire system. So the degree to which the codes are
already co-extensive, coupled with the ease of passing some additional
handy criminal statute, undermines that argument.

And yes, the talk was exactly about preventing another 9-11, but they
also understood that they were stuck--between prevention and
prosecution. They know they couldn't have both under the old system.
They were desperate to do whatever had to be done to prevent another
9-11 but also realized that as soon as a decent lawyer got into the
case, if they were in a traditional court they'd be out of luck. No
judge is going to say the constitution sanctions torture--even in these
circumstances. And thus regrettably, the defendant goes free. I was
never suggesting that courts want to beat confessions out of suspected
terrorists--only that they want to use torture if necessary to get
information without jeopardizing their ability to prosecute.

So on balance, I remain convinced that this was a significant factor in
deciding to take the gigantic leap to military tribunals.

Be well.


From: Jack S
Sent: Wed. Dec. 12th 2001 4:27
To: David F
Cc: Judith S; Michael K

Subject: RE: David Feige on military tribunals


I'm not sure I follow you. Just because the rules are different in
military court doesn't automatically mean that the defendants can't
receive a just trial. In France, for example, evidentiary rules in
criminal cases are a lot less liberal than ours and trials are by
judges, not juries. Is your argument that because it's easier to make a
case in military court that they'll be more prone to torturing suspects?

Lastly, do play devil's advocate for Ashcroft, would you accord full
Miranda rights to all war crime suspects. To, Mr. Hitler, for example?

From: David F
Sent: Tuesday, December 16, 2001 10:54 am
To: Jack S
Cc: Judith S; Michael K

Subject: re: Re: Military Tribunals


My argument is both more radical and more limited than you suggest. I actually believe that military tribunals were created to allow torture. But it’s not because the military is a bunch of sadistic psycho’s looking to exploit lax rules of evidence. I fear I’ve not made the causal relationship clear.

It is not that military tribunals were created and now I am afraid that because of their lax evidentiary rules agents are going to wail away on suspects in the future. Rather, I believe military tribunals were created because agents believed that they needed to wail away in order to gather intelligence, but didn’t want to sacrifice the potential for prosecution. The torture was, in all likelihood going to happen. The tribunal is the legitimizing force—the whitewash created to allow them to do what they believed they needed to do.

Under the new regime, agents are more likely to use illegal methods of interrogation, but more perniciously, they are much more likely to get away with it. We didn’t like the rules because we couldn’t do what we wanted. So we changed them.

I’m not naively wed to the status quo. Sure the French do things differently, and many places rely on a corps of professional judges to hear cases. That’s all great. But they are nonetheless public proceedings with a right to confrontation and appeal. (And BTW, even the French don’t allow coerced confessions.)

Remember how appalled we all were about Lori Berrenson’s trial by some military judges sitting behind a screen? It just felt like a farce. No one pretended to think it was fair. In that context, we had no compunction about questioning or even deriding the supposedly legal protections afforded the accused. And now we seek to duplicate that system. There has to be a reason. It’s clear we are able to legitimately prosecute terrorists and willing to bend the rules—look at today’s decision to try Massoui in a normal criminal court, but do so in the jurisdiction most likely to hand down the death penalty. But what do we do when no judge will sanction what we do? Simple—change the rules, and get rid of those pesky judges.

As for Hitler or Bin Laden; Of course the rules change in wartime and we are able to kill people without legal process. That’s no problem. Hitler is a tough case because his crimes were international war crimes committed during war and not on American soil. That’s why there was Nuremberg. And hey, you want rights and legal protections. I’ll take Nuremberg over Military tribunals any day.

Bin Laden, on the other hand is easy. He’s involved in a domestic mass murder conspiracy. If he is caught and returned here for trial, of course he should be afforded all of the rights we afford any accused criminal. People get so wrapped up in the process they forget that it works. If you think that there is a jury of 12 people in this country that will acquit Bin Laden, you are more of a cynic than even I. His fate is sealed. Why invalidate a process that is basically guaranteed to work?


Even now it's amazing to me that no one would run the piece.
I think it was just this collective desire to believe the administration in our time of national crisis.
Tragic, I think that my paranoia turned out to be prescient.


M. Brenner, Esq. said...

Dear Dave:
Stop yapping. Why not try a case? You have been sitting on your butt for the past several years. I'm gonna tell Shateek (or Shakeel, or whatever the fuck his name is) what an a-hole you are.
MB, Esq.

dtarrell said...

I've attempted to post comments here the last couple days but yesterday it took two attempts and today my comment did not show up at all. Just a heads up, in case you didn't know.



dtarrell said...

here's the comment I tried to post earlier...

It’s amazing that he viewed your suggestion for the article with more skepticism than he gave to the possibility that there were sinister motives behind the tribunals themselves. It’s as if he were saying, “yeah, David, but aren’t you one of those criminal defense attorneys who just wants to put criminals back on the streets anyway, because of some techincality? [meaning the Constitution] And by the way, you’re probably the kind of liberal who would even grant Miranda rights to Hitler, aren’t you?”

It would be difficult to find a more vivid example of the fourth estate not doing its job and giving the neocons the benefit of the doubt when they should have been questioning their motives and audacity. I know 9/11’s effect was to “rally us around the flag,” but it’s as if skepticism vanished from the mainstream media when we needed them the most and they wrote the neocons a blank check.

You weren’t paranoid, David. You were just dealing with someone who was blinded by the light of 9-11 and thus neglectful of his duties as a journalist when we badly needed one to step forward. I suspect yours wasn’t the only story being pitched, by freelancers like yourself or reporters in general, to editors like this guy around this time. In other words, as compelling as this story is, I suspect it’s symbolic of the mainstream press in general at that time. They were embedded in more ways than one so to speak.

I would like to ask the editor if- now that Gonzalez has hinted that prosecuting journalists is a possibility and that Bush has warned the NYT editors that “blood would be on their hands” if they ran the story about warrantless eavesdropping- he has any regrets about not asking more questions after 9/11 and about not running stories, like yours, that asked tough questions about the willingness of the Bush administration to work the “dark side” after 9-11.

Anon said...

You are still a moron.

M. Brenner, Esq. said...

I remember doing an arraignment shift in front of Alvarado one Saturday a few years back.....my guy & Dave's guy were co-defendants. In Dave's bail app, he told Efrain that my client was the guilty one & that his was innocent. Dave's ploy backfired & his guy got higher bail than mine. Nice call, Dave! By the way, when was the last time that Nestor teabagged you?

dtarrell said...

Say it isn't so! A few years back you made an argument at a bond hearing that didn't work! I'm sure this had nothing to do with the facts of the case and was purely attributable to your approach too. I think MB's revelation of this attempt and it's failure pretty much negates all of your work on double blind lineups, your faculty spot at NCDC, the Slate and NPR stuff. I'msure that if your publishers had known about "that one bond hearing" several years back and how the judge didn't buy your argument, the book itself would have been pulled.

I think that if the media gets wind of this bond hearing, it'll be "A Million Little Pieces" all over again and you'll have to be confronted by Oprah.

MB, is this why you lurk here, 'cause of "a bail hearing" years ago? Why not take your own advice and "try cases" instead? or write your own book about failed bail hearings and the public defenders who've all had them?

M. Brenner, Esq. said...

Hey Dave...
Why not tell everyone how you screwed Dan Arshack? You probably won't respond because you have your nose way up Tallmer's behind. MB