Something Rotten

A friend from Denmark forwarded an op-ed piece from the Washington Post. It was by the owner of a small internet company who had received a Justice Department "national security letter" ordering the man to provide information about a client.

It was accompanied by a gag order. The FBI has since abandoned the request for information, saying it does not need it, but continues to enforce the gag order against the company's owner.

As a news man, I have a knee-jerk opposition to government efforts to silence people or hide information. And as the owner of a small internet news service, I can relate to the author's position.

As he wrote anonymously for the Post, it is the imposition of silence that is pernicious.

He said he wanted to contact his representative in Congress when the re-authorization of the Patriot Act came up, for example, but could not because it would violate the gag order. He must lie to friends. He has been conscripted as a "secret government informer."

The FBI has issued 140,000 such letters according to a report by the inspector general of the Justice Department letters that are issued without judicial oversight and without a showing of need.

From outside of the political cauldron of the U.S., much of the world sees our nation as having abandoned many of the principles and liberties that made us great. But it is not a particular law that has achieved that degradation, it is the long-term, organized effort by the administration to politicize a professional justice department and a professional military.

Another friend from Denmark was visiting recently and we were talking about the military trials at Guantanamo and I said that our judiciary would, in the long run, never allow kangaroo courts in the American system.

The revolt has been slow and has come in bits and pieces, from the investigation of the political firing of U.S. attorneys to lower court rulings on procedural defects in the military tribunals to statements from prosecutors within the system condemning is methods.

Last week, after the ACLU filed a suit in the Northern District of California over a national security letter directed at the Internet Archive, the government agreed to withdraw the letter and also the gag provision.

In a more far-reaching decision, also last week, a military judge disqualified a Pentagon official from further participation in the "convening authority," which oversees the prosecutors and has much greater power over military judges than a civilian justice department would have over state or federal judges.

The judge accepted the criticism from the former Guantanamo chief prosecutor, Colonel Morris Davis, who complained of interference from on high by Brigadier General Thomas Hartmann who would instruct prosecutors to try certain cases because they were "sexy" or "would capture the imagination of the American public."

As the military judge put it appropriately, such considerations "suggest that factors other than those pertaining to the merits of the case were at play."

But what was lurking underneath that overt politicization of prosecutorial discretion was the former prosecutor's objection to the evidence that was being used, evidence obtained through coercive methods such as waterboarding.

Hartmann overruled Davis and instructed that such evidence be used.

It reminded me of the darkest parts of justice in America when heavy-set white sheriffs in the South would "grind the toes" of black suspects to extract confessions. Such evidence was notoriously unreliable and led to false convictions.

It seems to me, from a distance not so far removed as Denmark, that with every day that the Bush administration walks deeper into lame duck territory, the warp those folks have put on two proud groups prosecutors and military officers is coming undone.

It could not happen to a more deserving administration, one whose baneful influence cannot recede quickly enough and one whose overriding incompetence will live long in the memory.

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