Monday, April 24, 2006

Someone Does Not Mean Anyone

By William Fisher

The trial of Zakarias Moussaoui has all the makings of a soap opera. If Kafka wrote soap operas, that is.

Consider the cast of characters:

A defendant who alternately proclaimed his innocence and boasted of his guilt.

A prosecution that magnified the importance of a bit player in the 9/11 terrorist plot, and put the death penalty on the table despite charging him not with doing anything, but only with conspiring to do something.

A government that claimed that if only Moussaoui had not lied to the FBI, they could have prevented the attacks of 9/11, even though on 9/11 Moussaoui was in a Minnesota jail, while FBI headquarters was minimizing repeated alarms from its Minneapolis field office about Moussaoui's flight training.

A heart-wrenching chorus of survivors of 9/11 victims, unified in their view that the defendant was guilty of committing a crime, but divided about whether to exact retribution by executing him (thus conferring the martyrdom he says he welcomes), or jailing him for life (so that he will have to look in the mirror every morning and hate himself for the terror he wrought). Except that he didn't actually commit any act of terrorism. And, judging from his testimony, if he hated himself for anything it would be for not killing any American infidels.

Psychiatrists who painted the defendant as a paranoid schizophrenic, prompting some of us to label him "crazy" and others to decide he's "crazy as a fox."

A media that slavishly focused on the defendant's bizarre courtroom rantings and portrayed the trial as some kind of 21st century passion play about retribution vs. forgiveness, good vs. evil.

But there remains a major issue this trial has ignored. As lawyer David Cole wrote me, "There is something fundamentally wrong with trying to execute Moussaoui, an admittedly marginal figure who was not himself even involved in the planning of 9/11, when we have detained the mastermind of the attack, and the alleged 20th hijacker, but have brought no charges against them -- and probably never will, because our torture of them effectively immunizes them from prosecution."

The reputed mastermind of 9/11 is, of course, Khalid Shaikh Mohammad, who was arrested by the Pakistani government in a safehouse outside Islamabad in March 2003. President Bush characterized the arrest as "fantastic" evidence of the success of his crusade to bring the perpetrators of 9/11 to "justice", and immediately had Khalid whisked off to an undisclosed location in the custody of undisclosed persons who doubtless interrogated him using undisclosed techniques.

The so-called "20th hijacker" is said to be Mohammad al-Qahtani, who has been held in Guantanamo and is touted by the U.S. military as a major informant.

Moussaoui's trial heard from neither, because evidence obtained through torture would probably still be inadmissible in a U.S. court.

Moussaoui pleaded guilty to all the charges against him, though during the trial he denied that he was part of the 9/11 plan, but rather part of a separate plan to fly a plane into the White House. He signed his guilty plea "the 20th hijacker," implying that he was supposed to be on Flight 93, which had only four terrorists, and which crashed into a field in Pennsylvania. But Zakarias Moussaoui and Mohammad al-Qahtani can't both be the 20th hijacker.

Moreover, information garnered from Khalid Sheikh Muhammad portrays Moussaoui as a bit player, a fringe figure who was never in contact with the 9/11 hijackers.

In fact, on 9/11, Moussaoui was in a Minnesota jail. A month before the 9/11 attacks, Minnesota FBI agent Harry Samit warned his superiors that Moussaoui was dangerous, and that his flight training could be part of a terrorist plot. Samit told the Moussaoui jury he sent Washington about seventy fruitless warning messages about Moussaoui. And the 9/11 Commission concluded that the government had enough information to "join the dots."

So what has truly given this trial its Kafkaesque quality is that it is trial by proxy. It is a surrogate for the trials of those we'll never hear from, like Khalid Shaikh Mohammad and Mohammad al-Qahtani, and those who are still at large, like Osama Bin Laden.

Even among those who oppose capital punishment, it is not difficult to understand why America would want to punish someone for 9/11. But someone does not mean anyone.

If the jury votes to execute Zakarias Moussaoui, it will be elevating this bit player to above-the-marquee prominence, and he will be laughing all the way to Paradise.


By William Fisher

After the firing of the CIA officer who leaked the secret prisons story to Dana Priest of the Washington Post, one of the retired-general-talking-heads who regularly appears on cable news these days weighed in with advice on the many avenues this whistleblower might have traveled instead of going to the media.

The CIA officer, identified by the Washington Post as one Mary O. McCarthy, could have reported it to her superior. She could have gone to the agency's Inspector General. If neither of these remedies worked, the errant conduct could have been reported to a member of the House or Senate Intelligence Committees, the general said.

It's probably not a bad thing that this general is retired, because he is either delusional or woefully uninformed.

There are scores of former employees of agencies involved in national security who have attempted to change things from the inside, through their superiors or the Inspector General. Predictably, they have gotten absolutely nowhere.

The reason they are former employees is that they've all been fired or made professionally impotent by having their security clearances yanked. Many have also gone to senators and representatives, only to hit the same brick wall.

For all I know, Ms. McCarthy went through all the steps above, but ended up at the Washington Post anyway.

Ironically, Ms. McCarthy was working in the agency's Inspector General's office at the time of her dismissal. Her termination came after CIA Director Porter Goss, with the encouragement and support of the White House, went on a rampage to out those who have recently leaked classified materials to the media .

There is a reason people become whistleblowers. A few months ago a House subcommittee held a televised hearing that explained the reason. It is because employees of agencies that operate in the national security field are not now covered by the 1989 Whistleblower Protection Act. Nor any other act. The hearing provided an opportunity for people serving with the FBI, the military, and cabinet departments -- to tell their harrowing stories of retaliation for their attempts to report unethical or criminal misbehavior.

That Congress held a hearing at all was a huge breakthrough. The Subcommittee was considering legislation to provide legal protections for national security whistleblowers. The legislation appears to have gone nowhere as of this date, and similar earlier legislation was defeated on a straight party-line vote.

There was apparently another small problem arising in connection with going to the congress for help in the secret prisons matter. According to the Washington Post, the chairmen and vice-chairmen of the respective intelligence committees were briefed on the operation in the same way they learned about the NSA domestic surveillance program - on condition they keep the information secret.

So going to Congress in this case would not appear to offer much promise either.

If you're just catching up with the "black sites" prisons story, the CIA set up a network of such secret facilities in the Middle East and in now-democratic countries that were formerly part of the Soviet Union. To these prisons, the CIA "rendered" the most high-value suspected members of Al Qaeda and other terrorist organizations.

According to the Washington Post, the CIA acted under its covert authority, which can only be authorized by the president. President Bush signed such an authorization - known as a "finding" -- six days after the Sept. 11 attacks. It gave the CIA broad authorization to disrupt terrorist activity, including permission to kill, capture and detain members of al Qaeda anywhere in the world.

Dana Priest wrote that The Post could not be certain whether Bush approved a separate finding for the black-sites program, but reported that he probably didn't have to because the CIA already had the authority under the September 17th finding.

She wrote that the black-site program "was approved by a small circle of White House and Justice Department lawyers and officials."

In November of 2005, White House Press Secretary Scott McClellan was questioned about the Washington Post report. He said: "I am not going into discussing any specific intelligence activities. I would say that the president's most important responsibility is to protect the American people. It's a responsibility he takes very seriously."

I'm sure he does, notwithstanding his recent "instant declassification" and subsequent leak to the media of parts of the National Intelligence Estimate, apparently in an effort to discredit an Administration critic.

All governments have, and should be expected to have, secrets. But the attacks of 9/11, the "Global War on Terror", plus President Bush's obsession with secrecy, have guaranteed that this administration currently has more classified documents than any other in American history.

Going public with those documents is never a good option. But, assuming for the moment that The Washington Post was a last, not a first, choice for Ms. McCarthy, what is an employee supposed to do when he or she has knowledge of egregious misconduct in the national security arena and has exhausted all other avenues?

The secret prison program was, in my view, worthy of the term "egregious misconduct".

In the absence of adequate internal protections for national security whistleblowers, they will continue to seek out the media.

Where would we be without Deep Throat?