EXTREME PREJUDICE: The Terrifying Story of the Patriot Act and the Cover Ups of 9/11 and Iraq

by Susan Lindauer

  That explains why, after the shock of my arrest wore off, I had a great big smile on my face for the rest of the day, waiting for my bail arraignment. They’d handed me a golden opportunity to wallop them all.

  By the end of the day, I have no doubt that Andy Card realized it, too. The White House had made a monstrously stupid mistake. They had gotten blinded by visions of vengeance, and the desire to thrash me for criticizing their war policy. They never thought to the next step—my trial, where I would give them a thrashing right back. It was typical of the Republican Party not to think ahead to consequences before taking imprudent actions.

  Ironically, it means that while Andy Card probably lied to the grand jury—so the Prosecutor, Edward O’Callaghan insisted throughout my indictment324—O’Callaghan himself also lied in Court, when he scorned my defense arguments, filed pro se at one point, that the FBI investigation supported my claims.325

  Oh we know what witnesses told the FBI. They freely repeated their statements to my own attorneys—Brian Shaughnessy and Ted Lindauer, for the Defense. We know that they fully corroborated my story. And we know that O’Callaghan was guilty of gross prosecutorial misconduct and withholding exculpatory evidence, when he stood up in Court, hand on heart, and denied confirmations of my long-standing relationships with Hoven and Dr. Fuisz.326327 O’Callaghan perjured himself in front of Judge Mukasey, who later replaced Alberto Gonzales as U.S. Attorney General.

  Appallingly enough, the Patriot Act sanctions this sort of behavior—with its despotic rules on “secret evidence.”

  Medieval despots would have adored this law. Friends of Joseph Stalin in the old Soviet Union and Communist Eastern Bloc would have quavered in rapture for the hypocrisy of it. Anti-democracy forces in China and Mynamar must chortle in delight. Tyrants love this stuff, because it’s ideally constructed to smash anti-government activists, and crush truth-tellers who expose government corruption.

  Indeed, Stalinists would recognize that its 7,000 pages plagiarize much of the old Soviet Criminal Act of 1926, which established the KGB and Siberian Gulags.

  As Lavrentiy Beria, Stalin’s head of the dreaded secret police said proudly, “Show me the man and I’ll find you the crime.”

  In “American Lawbreaking,” in Slate in 2007, Tim Wu provides ugly evidence that U.S. Prosecutors are chasing the same scripture—especially U.S Attorneys in the Southern District of New York, who argued for my indictment.

  At the federal prosecutor’s office in the Southern District of New York, the staff, over beer and pretzels, used to play a darkly humorous game. Junior and senior prosecutors would sit around, and someone would name a random celebrity — say, Mother Theresa or John Lennon.

  It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were not usually rape, murder, or other crimes you’d see on Law & Order but rather the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield: Crimes like “false statements” (a felony, up to five years), “obstructing the mails” (five years), or “false pretenses on the high seas” (also five years). The trick and skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences. The result, however, was inevitable: Prison time.

  I was a premium catch in this macabre game. Think about it. With the CIA’s Chief Intelligence Asset on Iraq out of the way, Congress and the White House had free reign to rewrite the history books on Iraq and 9/11. They could exaggerate their performance on national security to their heart’s content.

  And that’s exactly what they did.

  In the holding cage at the Baltimore courthouse, I saw at once the indictment was loaded with payback, if not criminal actions.

  Advocating the use of international law to protect democracy and block human rights violations was decried as “Organizing Resistance to American forces,” under the Patriot Act. Apparently it’s now a crime to hold Washington responsible for its actions, or apply the Geneva Conventions of War to U.S. soldiers.

  I could not be prouder. The accusation itself trumpets the cynicism of the Republican age, launching international campaigns to promote democracy throughout the Middle East and Asia, while criminalizing support for democracy at home.

  And yes, with “extreme prejudice” in play, clearly some factions of the intelligence community (but not all) seized the chance to punish me for not going along with the official story of Libya’s guilt on Lockerbie.

  Like children squabbling on a playground, it sent a zinger to me.

  We finally got you, bitch.

  Oh yeah? Tell it to the Judge! (I didn’t think so.)

  My witnesses don’t have to lie. Yours have to lie. And I will prosecute the hell out of them when they do.

  And I wasn’t kidding.

  Surprisingly enough, I felt safe. If my indictment was loaded with payback, it was also packed with desperation.

  Studying the indictment calmed my nerves. Politically motivated or not, I saw at once that no Prosecutor could risk taking such a case to trial. Nothing in the indictment rose to the level of a misdemeanor, much less a serious crime worth exposing the enormity of leadership fraud on Capitol Hill—all that huffing and puffing about the superiority of Republican leadership on national security.

  Those masks would be ripped off in the first minutes of testimony. Their lies would be naked, an Emperor with No Clothes.

  My reaction strikes me as entirely reasonable.

  Alas, we were wrestling in the mud and the muck of the Patriot Act. This would be the starting point of this legal nonsense.

  Nothing would be logical. Nothing would be rational.

  Nothing would be Constitutional.

  Four years into this drama, my legal debacle would prompt a marvelous headline on an incisive political blog, WelcomebacktoPottersville.com:328

  “Susan Lindauer, Meet Franz Kafka.”

  Hey, you gotta love the feds.

  Secret Charges and Secret Evidence

  My case shone a klieg light on how the Patriot Act damages essential protections in a courtroom, regardless of the U.S. Constitution.

  Courtroom proceedings were scattered with “secret evidence” and “secret testimony.” I lost the right to face my accusers at a public trial or hearing.

  Most offensive of all, the indictment contained two “secret charges” that illustrate the real dangers and abuses of the Patriot Act. My attorney and I were given the dates that the two offenses allegedly occurred, one on October 14, 1999, a very specific date almost five years before my indictment, the other “approximately” October, 2001.329

  Beyond those dates, my attorney and I were not allowed to know what my actions allegedly consisted of, or what laws I might have broken. The Justice Department had no obligation to describe my alleged crimes, even in the most generic language. (For example, on October 14, the defendant entered a liquor store. The defendant robbed the liquor store using a gun. That action constitutes armed robbery.)

  I got none of that. The Justice Department invoked the Patriot Act to declare that some unidentified action occurred on October 14, 1999, which violated some unidentified law— That’s all we got to know.

  The Justice Department was quick to inform the Court, however, that conviction of either of those “secret charges” would catch me five years in federal prison.

  If that was not Kafkaesque enough, the Patriot Act relied on “secret evidence” to justify those “secret charges.” Quite literally, the Prosecution had the right to ask a jury to convict me of “secret charges,” without revealing any evidence whatsoever that the alleged criminal misdeeds even occurred. The Prosecutor had no obligation to provide a shred of evidence that I engaged in the actions, let alone demonstrate why they rose to a level of criminal behavior that deserved prison time. The Patriot Act requires a jury to “take it on faith,” because the Prosecutor says so.

  If a Judge so instructed, a ju
ry could be required to ignore the lack evidence in their deliberations. The Judge could simply instruct a jury that the Justice Department regarded the evidence as “sufficient” to constitute a crime, and that would be “sufficient grounds for conviction.330 I am not making that up!

  “Guilt beyond reasonable doubt” got shattered under the Patriot Act. The jury system in the United States got bludgeoned to a pulp

  Most ominously, evidence that might exonerate me of the charges could be ruled “secret and classified,” and therefore inadmissible, as well. My attorney and I would be prohibited from knowing of its existence. It remained to be seen whether the Court would allow us to present sensitive information to a jury, if we located it on our own. Evidence seized from my own home, which belonged to me, got blacked out and redacted, sometimes absurdly, too.

  For example, one lengthy phone call to United for Peace and Justice in San Francisco was marked “classified” by the Justice Department331—though it’s one of America’s largest anti-war groups. Suspiciously, phone conversations with journalists at Fox News in Washington got stamped “classified,” and blocked out, too.

  The serious question is why?

  Grand jury testimony was “classified” because it involved public officials. The Justice Department barred it from my sight or use in pre-trial proceedings, even though it should have authenticated my claims that I worked as an Asset, and resulted in the immediate dismissal of the major charges in my indictment. I would have been saved. Yet as a defendant, I was prohibited from receiving it or using it. Stacking the deck against me even more, the Patriot Act authorized the Prosecutor to submit papers “in camera” to the Court—for the Judge’s eyes only. My attorney would not be allowed to receive copies of the Prosecutor’s submissions to dispute them. The Justice Department has no obligation to acknowledge that an “in camera” submission has been made.332

  Along those lines, if big shot Washington politicos like Andy Card or Colin Powell lied to a grand jury to advance a government cover up of 9/11 or Pre-War Intelligence, the Patriot Act has a full arsenal of judicial weapons to protect them from exposure.333

  Those in power win. Those out of power go to prison.

  That’s the Patriot Act. It’s the new American way.

  This point must be underscored. No matter if evidence or witness statements tossed out the whole case against me, and might save me from years in prison, under the Patriot Act, my attorney and I would not be entitled to know of its existence, or receive copies of it, or examine it. My own attorney could not argue its merits in front of a jury.

  That’s exactly what happened to me.334

  Oh yes, the proceedings would get very, very scary before the end.

  How Secrecy Rules Work

  Within the category of “secret evidence,” the law pretends to establish a safeguard by allowing two levels of secrecy.335

  Under the main category of secrecy, both the attorney and defendant are prohibited from laying eyes on evidence.

  In the second sub-section, the defense attorney may petition the government for a security clearance, in order to review some parts of the “secret evidence—” but only what the Prosecutor chooses to reveal. The process of getting the security clearance drags out for six months to a year, typically, while most defendants languish in prison waiting for trial. (In most national security cases, there’s no bail. And because the case involves the Patriot Act, most male defendants get locked up in solitary confinement, even pre-trial. I learned that the hard way. I had to fight tooth and nail to stop from getting stuck in “the hole” myself.)

  Needless to say, applying for an attorney’s security clearance costs valuable time for reviewing evidence and planning a rebuttal.

  That’s not all. Depending on their backgrounds, different attorneys qualify for different levels of clearances. Activist attorneys with a history of pro bono cases, working for the American Civil Liberties Union or the Center for Constitutional Rights, might qualify for very low security clearances. Previous case-loads might pose a “threat to the State,” if an attorney has made a career supporting socially motivated causes that conflict with current government agendas. As a result, one attorney might have more or less access to secret evidence than another.336 But a Defendant choosing an attorney would not know the difference until the security review is complete.

  By then, you’re close to Trial. It’s too late to change.

  Mostly it’s irrelevant, unfortunately. To put that in context, in five years under indictment, I had two separate attorneys with vastly different levels of security clearances. My first public attorney, Sam Talkin, had no experience on cases of this sort. My second outstanding attorney, Brian Shaughnessy, was a former chief federal prosecutor assigned to Judge John Sirica’s court in Washington. In his elite law practice, Shaughnessy regularly handles the highest level domestic and international cases involving national security and U.S. intelligence.

  Yet neither Shaughnessy, who is extremely clever and blessed with a top security clearance for much of his career, nor my first public attorney—who was not—could ever determine what those two secret charges contained. Neither attorney ever got to review the “secret evidence” behind those “secret charges.”

  And so, lest hope floats and expectations rise, the safeguard for attorney clearance turns out to be largely meaningless and procedural anyway. It’s window dressing.

  Even after a security clearance is granted, the attorney does not get to examine the full range of “secret evidence.” It’s the prerogative of the Justice Department to decide what merits disclosure.337 And a Defense attorney has no way to challenge the security classification, because the Defense has no idea what evidence is still hanging out there in the legal ether.

  See the difficulty?

  And here’s the fine print—Regardless of access levels, the attorney is strictly prohibited from confiding the nature of “secret evidence” to the Defendant anyway. It’s for the attorney’s eyes and knowledge only. The Defendant cannot see it or know about it, and therefore cannot provide an effective response to it.338

  An attorney who violates the Patriot Act, by confiding the nature of “secret charges” or “secret evidence” to the Defendant could face court sanctions, or disbarment from the legal profession—even criminal prosecution, under the law

  That’s right, under the Patriot Act, an attorney would risk going to jail or losing the right to practice law entirely, if he or she informed the defendant about the nature of secret evidence, even in non-specific terms, for the purpose of building a rebuttal to the charges.

  It’s flagrantly unfair. Not surprisingly, most attorneys are afraid to challenge that rule, however, because the cost of testing the law would be too high, even for the most skillful practitioners. They’d risk everything.

  Notably, by this rule, the Patriot Act cripples a defendant’s capability to assist in preparing a rebuttal strategy to an unreasonable degree that surely impacts the outcome of the proceedings.

  In the strictest interpretation, invoking the Patriot Act renders any defendant “incompetent to assist in his own defense.”

  It’s an interesting point, because it has nothing to do with a defendant’s competence to function in daily life or understand courtroom procedures. Legal competence pertains exclusively to a defendant’s capacity to assist an attorney in preparing a defense. And that’s frankly impossible without knowing the charges, or seeing the evidence that would make or break the case.

  Ah, the plot thickens.

  Speculation on Secret Charges

  Wait now! I can hear some of you sputtering! Surely the American people can trust the Justice Department to restrict “secret evidence” and “secret charges” to only the very highest matters of national security. Indeed, such legal matters must be so sensitive as to require the most delicate touch!

  Are you ready to stake your freedom on that?

  Let me enlighten you.

  In five years, my Defense could
only speculate about the “secret charges.” But on our end, we certainly could identify my activities during those time frames. We surmised that with regards to October 14, 1999, I got indicted for blocking the Iraqi Government from making financial contributions to George Bush’s Presidential Campaign in 2000.

  That’s right. At the urgent instructions of my handlers, I stopped Iraq from making illegal campaign contributions to George Bush— at least through my channels.

  Ironic, isn’t it? Saddam Hussein anxiously desired to renew his old friendship with the Bush Family. Iraqi diplomats pushed me very hard for help— something I reported immediately to the CIA and Defense Intelligence Agency in October, 1999. Hence the FBI’s knowledge of the exact date of Iraq’s first request.

  My Defense Intelligence handler, Paul Hoven, was apoplectic, threatening to go nuclear on Baghdad himself if I failed to stop them. Iraq’s efforts would have been highly embarrassing for Republicans at all levels of the government. For that reason alone, I had been commanded to do everything in my power to stop Baghdad.

  Notably, my actions were reported to Andy Card in two letters, dated March 1, 2001 and December 2, 2001.339 That’s right! The White House got alerted to this conundrum by me! My attorneys speculated that, perhaps, GOP leaders feared Saddam might have succeeded through some other channel. And they didn’t want anybody snooping around, or digging into campaign records to determine which fundraisers might have drawn the illegal money.

  If we’re correct, that illustrates graphically how the Patriot Act can be abused to protect political ambitions. Obviously there’s nothing remotely illegal on my end, because I stopped a crime from occurring.

  Nevertheless, I got arrested! And secrecy got invoked to protect Republicans from embarrassing revelations that might damage the party apparatus. The welfare of the American people had nothing to do with it. I was gagged by indictment and threatened with five years in prison to stop me from alerting voters—who, let’s be honest, have a right to know who’s buying access to power in Washington.