The CIA Ate My Homework

Federal prosecutors say they are not to blame for misleading federal judges about the existence of interrogation audio/videotapes that might have been relevant in the trial of the once-upon-a-time "20th hijacker" Zacarias Moussaoui. The Justice Department says in a letter made public yesterday that it only just learned -- from the CIA -- that there are at least three recordings of interrogations of terrorist suspects. At the time of the Moussaoui trial, federal prosecutors were told -- by the CIA -- that there were no such recordings. You can read the feds' heavily redacted letter here.

You know what? I completely believe the government lawyers on this one. And I think the judges will, too. It's very likely that the CIA didn't tell the FBI about the tapes because the CIA knew that the FBI would, in turn, have had to disclose that important fact to the trial judge. And the CIA didn't want U.S. District Judge Leonie M. Brinkema potentially opening the tapes to the scrutiny of the world.

It happens all the time: one hand of the government not telling the other hand where the truth lies. Often, the mistake is inadvertent. Sometimes, it's intentional. People who fight the federal government -- whether in a criminal case or a civil one -- soon discover that it is no monolith. And, because of the nature of the bureaucracy, the bigger the case the more complicated the handling of evidence and information.

Decades ago, I was involved as a lawyer in a civil lawsuit involving a federal agency. There had been a federal investigation into the matter as well, so another agency had possession of certain information that might have been relevant to the case. The battles between the parties to the case were hardly as fierce or as petty as the battles between the federal fiefdoms. And that was before Sept. 11, when the stakes weren't nearly so high.

They were high in the Moussaoui case. If Judge Brinkema knew about the existence of the tapes before the trial, she likely would have forced the feds to allow Moussaoui's lawyers to use those tapes in his defense. That, in turn, would have forced the feds to appeal her ruling to the conservative 4th U.S. Circuit Court of Appeals, which almost certainly would have overruled Judge Brinkema and allowed the government to protect the tapes on national security grounds. That would have led to an appeal to the U.S. Supreme Court, which might or might not have taken the case. Win or lose, the CIA wanted none of this. So it forgot to honestly answer the intra-agency inquiry from the Justice Department.

If you don't buy this theory, you are left to argue that the Justice Department knew about the tapes but lied to the courts anyway. I just don't see it. Remember, these prosecutors promptly (and quite rightly) squealed on Carla Martin, the government witness who broke the judge's rules by sharing trial information with other witnesses. And it was the CIA, not the FBI, that offered up the sworn affidavits back then promising that the tapes existed.

Oh, and the bottom line? We'll never see those tapes. And they wouldn't have made a lick of difference in the zany Moussaoui case.

By Andrew Cohen |  November 14, 2007; 7:22 AM ET
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Why should the CIA worry about the Rule of Law, U.S. Constitution, U.S. Code and Federal Rules of Criminal Procedure any more than its bosses do?

Posted by: DC | November 14, 2007 11:53 AM

The whole business is very pesky. But once you start to lie, you have to keep on telling more lies. And more lies. No rest for the wicked!

Posted by: whoo_whoo | November 14, 2007 12:05 PM

If I were the district court or fourth circuit I would sua sponte issue an order to show cause re contempt.

Posted by: Spineless | November 14, 2007 03:33 PM

Andrew-Let me ask you something, are you quite sure you know the real story here involving Carla J Martin's work in the Moussaoui case, or do you automatically accept and believe everything you hear and are told, particularly if it comes from a Department of Justice prosecutor? You have to remember, always, things are not as they may appear at first glance, and particularly in this matter, because Carla J. Martin never got to tell her side of the story to the court, did she? Yet she was judged and slandered to the world as if all the information provided to the court during those hearings of March 13,14, 2006, were correct, and complete, and as if there was nothing more to know about the matter other than what prosecutor David J. Novak wanted the court to know.

If, as you say, the three prosecutors "squealed" "(quite rightly)" on Carla Martin, then why is David J. Novak, specifically, and his co-prosecutors currently under active OPR investigation for prosecutorial misconduct for having concealed information and having misled and misrepresented to a federal judge literally everything that happened during those hearings of March 13, 14-21, 2006? Because Novak IS under a current and active OPR investigation for prosecutorial misconduct arising out of the matter of the court's sequestration order and what was represented to the court about Carla J. Martin. The OPR investigation has been expanded recently to include one Kenneth E. Melson, DOJ's Director of the EOUSA, for misconduct arising out of the same subject matter.

It's really time that all the slander and misinformation leading to gross misjudgment about Carla J. Martin's actions were brought to light. You can understand why David Novak and his fellow Justice Department prosecutors are under an active and ongoing OPR investigation by knowing these basic facts:

1. At no time did David J. Novak, as counsel of record in this case, who was charged by a federal judge for carrying out a court sequestration order of advising his witnesses of such order, either advise, mention, reference, provide a written copy of, or otherwise discuss the sequestration order with Ms. Martin or any of the FAA/TSA witnesses. Nor did Mr. Novak or any other members of the prosecution team advise the FAA/TSA witnesses or Ms. Martin that the court's version of a Rule on Witnesses had been issued. The court's version of the Rule on Witnesses was different from the generic Rule, as the court itself took great pains to note. As Ms. Martin's emails demonstrate, she was in virtual constant coummunication with Mr. Novak from the time the oral sequestration order was issued (February 14, 2006), and the later written order (February 22, 2006) all the way through the first week of trial (March 6-10, 2006), and Novak never said a word to her about it. Moreover, Ms. Martin specifically asked Novak, more than once, about what the court had said during the hearing of Feb. 14th, 2006, and he failed to tell her of the court's order issued that day.

2. Contrary to the documentation existing on his own computer, Novak asserted to the court on March 13-14, 2006, that he was providing a comprehensive presentation of all relevant email communications involving Ms. Martin during that first week of trial. Starting from Saturday, March 4, 2006, through March 10, 2006, Novak and Ms. Martin were in constant email and telephonic communication. These emails were excluded from Mr. Novak's email presentation to the court, thereby concealing his direct communication with Ms. Martin during the period he accused Ms. Martin of violating the court's orders. Had those emails between Mr. Novak and Ms. Martin been disclosed to the court, its conclusions would certainly have been different, and it would have been Mr. Novak who had to answer for violations of the court's orders.

Everything that happened afterwards flows from those fundamental facts.

The court's sequestration order was issued at two open hearings. Ms. Martin did not attend either one of those hearings. Ms. Martin did attend one CIPA hearing on March 3, 2006, where one of the defense attorneys briefly mentioned a Rule on Witnesses applying to their experts at the very end of the hearing, however, there was no reference to the court's specific sequestration order, or its application in the case, nor did David Novak say anything at all to Ms. Martin about it, and advise her then, or all during the weekend, and all during the first week of trial. Even when they were in constant contact through the first week of trial, as she was working on a problem involving a substitution document, with multiple witnesses, with Novak's knowledge, and approval, yet he STILL did not advise her or the witnesses of the court's order.

More signficantly, Mr. Novak knew that Ms. Martin had the opening statement transcript, and had real problems with it, as there was inaccurate and misleading information contained within it, which Novak knew was incorrect, yet he failed to respond to her emails and voice mails on the subject. Later, at the hearing, when FAA witness Lynne Osmus was asked about the inaccurate information about "getting all the knives" Ms. Osmus responded "I had never heard that before." Mr. Novak had known for some four months that the witnesses could not testify to what was stated in the opening.

All of the aforementioned information was never disclosed to the court.

The court's written sequestration order is not described on the Moussaoui trial docket sheet. It is hidden under a docket number, but you would have to know that an order was issued, and what date the order was issued, in order to even begin looking for the docket number under which the order was located. Ms. Martin and her TSA boss knew nothing of those sequestration orders until the evening of March 10, 2006.

Over the weekend before the hearing, Ms. Martin, through her boss, then asked Novak to call the court and the defense attorneys so that she could advise the court and the defense attorneys what she knew of the matter immediately. Novak and his fellow prosecutors refused to allow this. Ms. Martin then thought of calling the court herself, but she was not permitted to do so. Mr. Novak did not advise the TSA Chief Counsel that he had not told Ms. Martin or the witnesses of this very specific order, nor did Mr. Novak ever tell his airline witnesses, either, who were scheduled to testify in the government's case after the government witnesses.

Rather, on the morning of March 14, 2006, when Ms. Martin showed up to testify as to what she knew at that point about the matter, (she did not know even then when the order was issued), she was immediately "silenced" by Mr. Novak, who asked the court to read Miranda warnings to Ms. Martin, specifically so that she could not speak, and tell the court what she knew.

Mr. Novak clearly did not want Ms. Martin to testify, because she, after all, had been working with him for several months, hand-in-glove on this case, seven days a week, and so he did want her to say anything that would reflect negatively on him or harm his career in any way.
Instead, hearings were held where there was no one in the courtroom representing Ms. Martin's interests, no legal representative to challenge and cross-examine everything that David Novak represented to the court-which was a basic violation of Ms. Martin's due process rights. Everyone believed the prosecutors.

Then, of course, after all the damage had been done to Ms. Martin's credibility through those hearings, she was not allowed to come back and testify, as the Department of Justice threw her into a criminal investigation, so the trial could move on, and no one could know the truth. The criminal investigation was dropped some months later.

And the above only hits at some of the major points of this exceedingly scary and treacherous story.

Posted by: | November 14, 2007 05:58 PM

The Gewapo calls on Kafka. Die sonne scheint noch. But not where you're looking.

Posted by: okbyme | November 14, 2007 07:37 PM

"Now we'll talk all day if you want to. But, come sundown, there's gonna be two things true that ain't true now. One is that the United States Department of Justice is goin' to know what in the good Christ - e'scuse me, Angie - is goin' on around here. And the other's I'm gonna have somebody's ass in muh briefcase."

- Absence of Malice

Posted by: wilfordbrimley | November 14, 2007 11:13 PM

Great quote from that Paul Newman flick.

I can only shake my head at some of the stuff that goes on around here. Whether the CIA, FBI, the administration or some less than scrupulous lobbyist, this town has lived down to what novelists describe in their works of fiction. Especially the last six years.

Somewhere Tom Clancy, John LeCarre, Robert Ludlum, Fred Forsyth and others are laughing.

Posted by: CRix | November 15, 2007 10:06 AM

This prosecutor, David J. Novak IS A REAL PIECE OF WORK. He made news in the mid 90's when he was an AUSA in Texas, because a prominent Houston criminal defense lawyer, Kent Schieffer, filed an OPR complaint against Novak alleging that Novak lied and misrepresented to a Texas federal judge about a defendant. There was a big article in the Legal Times NOVAK SUED THE LAWYER FOR LIBEL. According to the Legal Times article, it caught DOJ completely off guard-the DOJ spokesman issued a statement saying "this has never been done before." Not only that, but ANOTHER complaint came in against Novak to the DOJ at the same time AND HE FILED ANOTHER LIBEL SUIT TO SILENCE THE COMPLAINER!

And he's still working for DOJ! You couldn't make this stuff up!

Posted by: LawBlogger | November 16, 2007 06:19 AM

I'm just waiting for Bush to recycle the junk remarks he has made about Alberto Gonzales. I expect that he will say:

'The CIA has worked tirelessly to make this country safer and to ensure that all Americans receive equal justice before the law.

Over many years, I have witnessed its integrity, its decency and its deep dedication to the cause of justice.'

Posted by: Robert James | November 16, 2007 07:14 AM

How do we know the tapes would not have changed the outcome of the Moussai case?

Apparently, the CIA does not agree with you. Nevertheless, it was upto the defendant and his Counsel to decide if it would use those tapes.

it is pretty disgusting when the CIA knows that the tapes are required but it manipulates the system by preventing their exposure.

This is not justice. It is a deceitful and irresponsible manipulation of the justice system by an important government department that thinks it should have the right to override the existing justice system.

The USA is off the rails.

Posted by: Robert james | November 16, 2007 07:20 AM

Judge not, lest ye be judged, Mr. James!

Before making universal judgments on the U.S. you need to pay attention to more of the U.S. media and not rely so much on the your local providers.

The hyperbole does not fairly describe the U.S.; only abusers within its government's bureaucracy.

Wait about 355 days.

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Posted by: Otto | December 4, 2007 05:01 AM

Government missteps in the Moussauoi trial have been well docmented. Now the prosecutor, David Novak, is apparantly being investigated by the DOJ's Office of Professional Responsibility. Where he's been nominated to the federal bench, doesn't the public have a right to know the outcome of this OPR action as part of the vetting process?

Remember that the 9/11 plaintiffs, who have sued the airlines for negligence and wrongful death, have been denied access to evidence from the Moussaoui tral. Isn't it time to remove the veil of unecessary secrecy and provide full dislosure in discovery?

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