Who Let The Dogs Out? The Hounds Of Hatfill and the Federal Rules of Evidence

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On Marcy’s most recent Hatfill post, I made a mostly flippant comment on the dogs in the Hatfill case:

What if Hatfill is just a pig and leaves pizza crusts around everywhere he goes and the dogs are smelling that? What are the customary industry standards for certification of anthrax sniffing dogs anyway; and who sets and regulates them? Or is this just some “wonder mammal” like Lassie or Flipper or something? Was there video of the searches with the wonder dogs? Because there sure should have been. Or are these yet more video items of evidence that have been “misplaced”? What was the nature of the dog’s response? Did it emit a “plaintiff wail” like Nicole Simpson’s Akita? (Great trivia: Nicole’s Akita was named “Kato” too). I don’t see how the dog(s) here meet any evidentiary standards for admissibility or reliance by a court.

Despite it being mostly in jest, that comment had what I consider to be a critical, if not the critical, point in it. From what it appears, the only bit of "evidence" (and I use that descriptor loosely here, and in the generic sense, because I don’t think there was any proper evidence at all) against Hatfill that served as the basis for identifying him was that the dogs had alerted.

We all saw, in the tragic case of the late Richard Jewell, the horrendous and deleterious effects of a defective identification on an individual for an infamous crime. It is simply unconscionable to hang such a collar on someone without substantial credible hard evidence. And, quite frankly, the aura and implications of the anthrax case were, and are, far worse that the Atlanta Olympic park bombing. An entire nation was brought to a standstill and was trembling from a terrorist act that was capable of being repeated anywhere, at any time, in the country via the mail. So the United States government better have a pretty strong case before it implicates someone such as Hatfill in such a crime.

What substantial and credible hard evidence was the identification of Hatfill based on? Well, as has been previously discussed, he had worked in the bio-agent/anthrax field, had the technical expertise and, according to profilers, the personality to do the anthrax deed. The government indicates that he may be one of 50 or fewer people who had the skills to do it and had access to the strain. Then you add in allegations of violence in his past and ties to South African apartheid militias, and you can certainly understand why he was being looked at. While such information is not all entirely innocuous background, it is certainly nothing more than circumstantial and does not inculpate Hatfill; the only alleged link of Hatfill to the actual crime with the anthrax letters, at least that we are aware of to date, was the dogs. That’s it; there is nothing else. What are the standards for admissibility of dog scent Read more →

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Chiquita Exec: Our Support for Terrorism Doesn’t Kill People

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In an inevitable development, the families of people killed by FARC in Colombia are suing Chiquita for arming the terrorists. And in spite of the fact that the sentencing memorandum in their settlement with the government made it clear that Chiquita did support FARC from 1989 to 1997, Chiquita’s lawyer claims that the company’s support for terrorists had nothing to do with the effects–including murders–of that terrorism.

Chiquita officials disagree. In a telephone interview, Mr. Loyd said that the lawsuit’s assertion that Chiquita armed FARC rebels was “categorically untrue” and that the company would “vigorously defend” itself against the accusations.

Gary Osen, one of several lawyers for the plaintiffs, said his clients’ lawsuit — along with at least four others accusing Chiquita of complicity in killings carried out by the rebel groups — would be brought under the civil provision of the antiterrorism law.

The law states that any United States national “injured in his or her person, property, or business by reason of an act of international terrorism” can sue for damages in any appropriate federal court “and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees.”

[snip]

He said Chiquita was just one of many companies doing business in Colombia that paid “protection money” to rebel groups, the price of doing business in a notoriously violent country.

Ms. Julin said she and the others who lost their husbands to FARC do not see it that way.

“Chiquita was there to make money and fund these people,” she said. “How could anybody be involved in something like this without regard to the human lives lost?”

This (and the others associated with it) will be an interesting suit. I look forward to the executives who knowingly supported terrorism for over a decade arguing that support for terrorists is just a business expense.

Update: Terrorisms changed to terrorists per Frank Probst.

Update: I think Hugh’s auditioning to be Chiquita’s spokesperson.

It’s not bananas that kill people. It’s people with bananas that do.

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Consequences

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I just finished Philip Shenon’s The Commission. I found it, overall, a worthwhile book. All other debates about the book notwithstanding (for example, I actually think it’s reasonably fair to Philip Zelikow, balancing his tremendous writing talents against the detrimental effect of his asshole personality), I kept thinking about the consequences of two decisions made over the course of the report–made primarily by Thomas Kean and Lee Hamilton. The Commission decided to avoid laying blame–on many people, including Bush, Clinton, and Tenet, but most of all on Condi Rice. And, after a great deal of lobbying from Robert Mueller, the Commission did not call for the break up of the FBI.

What if the 9/11 Commission had made it clear that Condi, above all other people, failed to do the things that might have stopped 9/11? What if the 9/11 Commission had called for drastic changes in the FBI?

Condi

To be fair, if Condi had received the blame she deserved, the some of her salutary influences on Bush would have been absent. For example, at several times in the last four years, Condi was probably the biggest thing standing between Dick Cheney and the war he wanted in Iran. Condi is incompetent, but incompetence notwithstanding, she may have saved us from World War III.

That said, I kept thinking of Condi’s ham-handed attempts to secure a legacy in the Middle East. In particular, I think of David Rose’s recent Vanity Fair article detailing how Condi’s inept attempts to install a strong-man in Palestine led to the Gaza coup and the strengthening of Hamas.

In essence, the program was simple. According to State Department officials, beginning in the latter part of 2006, Rice initiated several rounds of phone calls and personal meetings with leaders of four Arab nations—Egypt, Jordan, Saudi Arabia, and the United Arab Emirates. She asked them to bolster Fatah by providing military training and by pledging funds to buy its forces lethal weapons. The money was to be paid directly into accounts controlled by President Abbas.

Not just in Palestine, Condi has a habit of taking bad situations and making them worse, with tremendous costs in terms of lives and American stature. The question is, if she had received the blame she should have for 9/11, would we have avoided those mistakes? And if we did, how much more would that have empowered Cheney?

Update: MadDog reminds me I intended to link to this, from Laura Rozen. Read more →

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Droning Cell Phone Calls

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Noah Shachtman is going to convince me to give up my cell phone. Today he notes an AP story reporting that Palestinians believe Israel’s spy drones are jamming cell phone lines and then using them to take out targets.

Palestinians say they know when an Israeli drone is in the air: Cell phones stop working, TV reception falters and they can hear a distant buzzing. They also know what’s likely to come next — a devastating explosion on the ground.

Palestinians say Israel’s pilotless planes have been a major weapon in its latest offensive in Gaza, which has killed nearly 120 people since last week.

[snip]

Wary Gaza militants using binoculars are on constant lookout for drones. When one is sighted overhead, the militants report via walkie-talkie to their comrades, warning them to turn off their cell phones and remove the batteries for fear the Israeli technology will trace their whereabouts.

The AP goes on to note that the US has used such Predator drone attacks in Pakistan and Afghanistan as well–though the AP doesn’t explicitly say these drones triggered using cell phone signals.

In January, a missile fired from a Predator killed Abu Laith al-Libi, a top al-Qaida commander, in Pakistan’s lawless tribal region of north Waziristan. Coalition forces in Afghanistan are believed to have launched a number of missile strikes from drones against Taliban and al-Qaida militants hiding on the Pakistani side of the border, but the U.S. military has never confirmed them.

This report follows on one from last week, in which the Taliban demanded cell phone operators in Afghanistan turn off cell signal for 10 hours a day–or they’d take the towers out.

Taliban militants threatened Monday to blow up telecom towers across Afghanistan if mobile phone companies do not switch off their signals for 10 hours starting at dusk.

Taliban spokesman Zabiullah Mujaheed said the U.S. and other foreign troops in the country are using mobile phone signals to track down the insurgents and launch attacks against them.

Since that time, the Taliban have taken out at least two cell towers (h/t oscar).

Two mobile phone antennas were destroyed in southern Afghanistan, officials said Sunday, after Taliban militants threatened to bring down such masts, alleging they are used to locate hideouts.

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More on the Show Trials

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Two more interesting details on the upcoming show trials. First, in an interesting profile on Colonel Morris Davis, Hamdan’s lawyer reveals what Davis will testify to. Not just that Haynes told Davis no acquittals were allowed, but that the whole process is rigged.

Colonel Davis, a career military lawyer nearing retirement at 49, said that he would never argue that Mr. Hamdan was innocent, but that he was ready to try to put the commission system itself on trial by questioning its fairness. He said that there “is a potential for rigged outcomes” and that he had “significant doubts about whether it will deliver full, fair and open hearings.”

“I’m in a unique position where I can raise the flag and aggravate the Pentagon and try to get this fixed,” he said, acknowledging that he is enjoying some aspects of his new role. He was replaced as chief Guantánamo prosecutor after he stepped down but is still a senior legal official for the Air Force.

Among detainees’ advocates, there has been something of a gasp since it was announced last week that Colonel Davis would be taking the witness stand in April.

Mr. Hamdan’s chief military lawyer, Lt. Cmdr. Brian L. Mizer, said he would offer Colonel Davis to argue that charges against Mr. Hamdan should be dismissed because of improper influence by Pentagon officials over the commission process. Prosecutors may object, and it is unclear how military judges may rule.

This suggests Thomas Hartmann’s role will be exposed as well as the departing Haynes’ role. Will Hartmann stick around for the show trials?

Then, in a perhaps related development, the Attorney General decided to make his first visit to America’s gulag yesterday.

The attorney general was expected to spend only about six hours at the Naval station during his previously unannounced first trip there, said Justice Department spokesman Peter Carr.

Mukasey "is meeting with military personnel and other officials involved in the military commissions proceedings," Carr said. He said Justice Department prosecutors "have been involved in the investigation since the high value detainees were moved to Guantanamo Bay."

The Bush Administration always likes to have momentous discussions face to face. I wonder what Mukasey had to say to the show trial lawyers that he couldn’t say over a secure line?

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Taliban Cells and Cables

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I’m not really sure if these dots connect at all, but let me point them out and have the tech wizards rip me to shreds.

On January 31, two telecom cables lines to Egypt went out. The countries that were most affected, by far, by the cuts were Egypt and Pakistan–with Pakistan losing over 70% of its connectivity. Cables continued to go down around the Middle East; eventually, a UN official conceded the outages may have been intentional.

Today, Noah Shachtman reports that the Taliban in Afghanistan are threatening to take out cell phone towers if the providers don’t turn them off for ten hours every night.

Taliban militants threatened Monday to blow up telecom towers across Afghanistan if mobile phone companies do not switch off their signals for 10 hours starting at dusk.

Taliban spokesman Zabiullah Mujaheed said the U.S. and other foreign troops in the country are using mobile phone signals to track down the insurgents and launch attacks against them.

The AP notes that Afghanistan’s cell network went in since our 2001 invasion, so presumably the connectivity to the country, like that in Iraq, is largely under US control. That is, as insurgents in Iraq are doing, you’d have to blow the towers to cut their connectivity.

Shachtman goes on to note that the Taliban have a point.

Without getting into specifics, let me say that Mujaheed’s concern is eminently reasonable. Former Royal Navy sailor Lew Page notes:

The mobile companies have long been thought by the Taliban to be colluding with NATO and Coalition forces operating in Afghanistan, and in fact it would be surprising if they weren’t. The Afghan government is heavily dependent on the international troops. Use of the mobile networks for intelligence is an obvious step which is well-nigh certain to have been taken, just as governments have done in every country. And it’s well known that masts can be used to locate a phone which is powered up.

What’s less clear is why the Taliban have chosen to demand a shutdown of mast signals at night. Even the most paranoid phone-security advisers would normally suggest taking the battery out of one’s phone, rather than menacing local cell operators unless they went off the air. (The idea of removing the battery is to guard against someone having modified the phone to switch itself on without the owner’s knowledge.)

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The OTHER Sources for the Hatfill Stories

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Over a month ago, I noted an LAT article naming three of the sources for the reporting that Steven Hatfill was a "person of interest" in the anthrax investigation. But it appears that Hatfill didn’t learn all of the sources–Judge Walton is preparing to hold at least one reporter in contempt for not revealing the sources for her Hatfill reporting.

A federal judge said Tuesday he will hold a former USA Today reporter in contempt if she continues refusing to identify sources for stories about a former Army scientist under scrutiny in the 2001 anthrax attacks.

U.S. District Judge Reggie B. Walton said reporter Toni Locy defied his order last August that she cooperate with Steven J. Hatfill in his lawsuit against the government. Walton indicated he would impose a fine until she divulged her sources, but that he would take a few more days to decide whether to postpone the penalty as she pursues an appeal.

The judge is also considering whether to find former CBS reporter James Stewart in contempt.

[snip]

Walton previously ordered five journalists to reveal all of their sources. Stewart and Locy refused, saying Hatfill was partly to blame for news stories identifying him as a suspect after his attorney provided details about the investigation.

The story if interesting for two reasons. First, it seems to pinpoint who shared their sources (after reportedly being released to do so) and who didn’t. Judge Walton compelled testimony from five journalists–Michael Isikoff, Daniel Klaidman, Allan Lengel, Toni Locy, and James Stewart–and Locy and Stewart are the only two for whom he is considering contempt.

Also, as I pointed out last month, Hatfill now appears to have the sources for leaks that actually weren’t that damaging–stories that made it clear that Hatfill was just one of a number of people under suspicion for the attack.

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Journalists Name Former DC USA as Hatfill Leaker

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Apparently, at least some of the journalists who reported that Steven Hatfill was a "person of interest" in the anthrax investigation have revealed their sources (after being released by those sources).

Attorneys for the former Army physician who was branded a "person of interest" in the deadly 2001 anthrax mailings named three federal officials Friday who they said leaked investigative details that harmed their client.

The physician, Steven J. Hatfill, has not been charged with a crime and maintains his innocence. Hatfill is suing the FBI, the Justice Department and a handful of present and former law enforcement officials. He alleges that the leaks were illegal, damaged his reputation and violated his right to privacy.

"We have identified three of the leakers who were previously anonymous," one of Hatfill’s attorneys, Mark A. Grannis, said near the outset of a sparsely attended hearing in federal court. "Some of the most damaging information leaked in this case [came] straight out of the U.S. attorney’s office."

The anthrax mailings killed five people and sickened about 20 others from Florida to Connecticut. Coming on the heels of the suicide attacks on the World Trade Center in New York City and on the Pentagon, the mailings led to the shutdown of a Senate office building and heightened the nation’s fear of prolonged terrorism.

Hatfill’s attorneys alleged that the three officials who leaked investigative details to the media were: Roscoe C. Howard Jr., who from 2001 to 2004 served as U.S. attorney for the District of Columbia; Daniel S. Seikaly, who served as Howard’s criminal division chief; and Edwin Cogswell, who formerly served as a spokesman for the FBI.

This is where this suit will get interesting. Many of the stories that Hatfill named in his suit complained about the revelation of facts pertaining to ongoing FBI searches: news that dogs searching for anthrax had responded to locations on Hatfill’s property.

The agents quietly brought the dogs to various locations frequented by a dozen people they considered possible suspects — hoping the hounds would match the scent on the letters. In place after place, the dogs had no reaction. But when the handlers approached the Frederick, Md., apartment building of Dr. Steven J. Hatfill, an eccentric 48-year-old scientist who had worked in one of the Army’s top bioweapons-research laboratories, the dogs immediately became agitated, NEWSWEEK has learned. "They went crazy," says one law-enforcement source. The agents also brought the bloodhounds to the Washington, D.C., apartment of Hatfill’s girlfriend and to a Denny’s restaurant in Louisiana, where Hatfill had eaten the day before. In both places, the dogs jumped and barked, indicating they’d picked up the scent. (Bloodhounds are the only dogs whose powers of smell are admissible in court.) Read more →

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FBI Tells Librarians: “Sssshhhhh!”

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Remember when librarians used to be caricatured as stern matrons telling us all to shush up while we were at the library? That is, until they took on a front-line fight defending the civil liberties of Americans who just want to read books (or use computers). We all owe a debt to those librarians fighting against PATRIOT Act restrictions on free speech.

Which is why I’m not so sure it’s a good idea for the FBI to make such a clumsy stand against free speech at the librarians’ Midwinter Meeting tomorrow (h/t Momsrighthand) [note, the ALA article has been updated, but I’ll keep the original]:

The attorney who represents FBI Supervisory Special Agent Bassem Youssef, chief of the Counterterrorism Division’s Communications Analysis Unit, advised the American Library Association’s Washington Office two days before the agent’s scheduled January 12 speech at ALA’s Midwinter Meeting at the Pennsylvania Convention Center in Philadelphia that the FBI had warned him against delivering the speech. Instead, Youssef would appear to answer “acceptable questions presented by members of the audience,”

The FBI has already gotten in trouble for trying to silence Special Agent Youssef. But apparently, they still don’t want him to talk about problems with the FBI’s counter-terrorism effort.

[F]ollowing a December 20 ALA press release that detailed the program, the FBI e-mailed Youssef January 3 and “expressed its displeasure at the proposed content of his presentation, and the viewpoints for which he would raise at the conference.” Kohn added that the Bureau “explicitly took exception” to the idea that Youssef “is expected to discuss a number of critical failures within the FBI’s Counterterrorism program, which undermine basic constitutional rights of American citizens and threaten the effectiveness of America’s counterterrorism efforts.”

The FBI e-mail then issued a clear warning to Youssef against making such a presentation, noted Kohn, who explained that the agency also forwarded to Youssef a multi-page document setting forth various rules concerning pre-publication clearance of any potential speech and forbidding him to show the rules to anyone outside the agency. “The FBI does not want the general public to know the contents of the censorship provisions it unconstitutionally demands that its agents follow,” Kohn wrote, advising that Youssef would not be able to make the planned presentation.

Call me crazy, but this is just clumsy. I mean, I can see censoring someone giving a talk to DFH bloggers. But librarians? C’mon. They’re Read more →

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Is Dick Finally Going to Go After OBL?

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The NYT has a disturbing story this morning, explaining that, with the US policy in tatters after the assassination of Benazir Bhutto, they’re considering ratcheting up the pressure by allowing the CIA to partner with the Special Forces on operations in Pakistan.

President Bush’s senior national security advisers are debating whether to expand the authority of the Central Intelligence Agency and the military to conduct far more aggressive covert operations in the tribal areas of Pakistan.

The debate is a response to intelligence reports that Al Qaeda and the Taliban are intensifying efforts there to destabilize the Pakistani government, several senior administration officials said.

[snip]

Several of the participants in the meeting argued that the threat to the government of President Pervez Musharraf was now so grave that both Mr. Musharraf and Pakistan’s new military leadership were likely to give the United States more latitude, officials said. But no decisions were made, said the officials, who declined to speak for attribution because of the highly delicate nature of the discussions.

Many of the specific options under discussion are unclear and highly classified. Officials said that the options would probably involve the C.I.A. working with the military’s Special Operations forces.

Two pseudonymous counter-insurgency analysts cross-posting at Danger Zone have a good response to this: Read more →

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