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“War on Terror” Whistleblowers, Dissenters are Fired, Prosecuted; Plaintiff’s Lawyers Help Turn Them In

War on Terror Whistleblowers, Dissenters are Fired, Prosecuted; Plaintiff's Lawyers Help Turn Them In

by Alex Friedmann

In January 2005, Lt. Commander Matthew M. Diaz was a Navy staff judge advocate serving a six-month tour of duty at the legal office in the U.S. military prison at Guantanamo Bay, Cuba, which houses detained "enemy combatants."

The previous year, the Center for Constitutional Rights (CCR) had successfully filed suit on behalf of Guantanamo detainees, resulting in a 2004 Supreme Court decision which held that such prisoners have the right to challenge their incarceration in U.S. courts. See: Rasul v. Bush, 124 S. Ct. 2686 (2004). The military, however, had since refused to identify the detainees, making it impossible for the CCR or other agencies to file individual challenges under the Rasul ruling.

Disturbed with the detainees' treatment and the government's obstruction of their legal rights, which he believed was unconstitutional, Diaz compiled a list of 550 names of Guantanamo prisoners and mailed it, anonymously, to CCR attorney Barbara Olshansky.

Olshansky had been trying for years to obtain the names of detainees held at Guantanamo, but suspecting the list of names might be classified, she promptly notified federal court officials. The Department of Justice and FBI were called in and the list was eventually traced to Diaz through his fingerprints and computer records. He was charged in July 2006 with five criminal counts related to disclosure of classified information.

At no point did Olshansky or CCR disclose the list of names to the media, file it with the court, or use the information to file individual habeas petitions on behalf of the previously unidentified prisoners at Guantanamo.

Meanwhile, on January 23, 2006, in a Freedom of Information Act suit filed by the Associated Press, a federal court held that the names of the Guantanamo detainees were a matter of public record and must be disclosed. The military complied, releasing the names, ages and nationalities of most of the prisoners at Guantanamo. See: Associated Press v. U.S. Dept. of Defense, 410 F.Supp.2d 147 (S.D.N.Y. 2006). Regardless, Diaz's prosecution proceeded.

Following a court martial hearing before a panel of military officers, which was at least as impartial as the hearings afforded enemy combatants, Diaz was convicted on May 28, 2007 of four charges. He was discharged from the Navy and sentenced to six months in prison. Olshansky willingly testified against Diaz during the trial and was the prosecution's lead witness.

While Diaz acknowledged that he shouldn't have sent the list of names, he maintained that his motives for doing so were valid. "My oath as a commissioned officer is to the Constitution of the United States," he said. "I'm not a criminal."

This was not Diaz's first personal experience with the criminal justice system; his father, Robert Diaz, has been on California's death row since 1984 for allegedly euthanizing patients when he worked as a nurse.

According to an investigation by the San Francisco Chronicle, Robert Diaz, who has maintained his innocence, "never received anything even close to a fair trial." Lt. Commander Diaz noted that his daughter, age 15, was "pretty much in the same position I was when I observed this happen with my dad "just observing the injustice."

The CCR released a statement condemning Diaz's punishment, stating his actions had been "grounded in a strong sense of morality and commitment to the rule of law." PLN contacted the CCR for a comment on the "morality and commitment" of Barbara Olshansky, who, without even attempting to mount a legal fight, voluntarily surrendered evidence to government authorities that resulted in Diaz's prosecution. Despite repeated requests, no CCR staff would comment on this story or the role of CCR and Olshansky in Diaz's court martial.

On May 23, 2007, the National Lawyers Guild (NLG) issued a statement denouncing Diaz's conviction and commending his courage. "History books will look back on this administration's practice of secret detention and torture, illegal under the Geneva Conventions and the War Crimes Act of 1996, as a dark stain on our constitution and the rule of law," said NLG Executive Director Heidi Boghosian.

The NLG observed that Diaz should not have been prosecuted for disclosing information that was never legitimately classified to begin with.

PLN Editor Paul Wright, who serves as an NLG co-Jailhouse Lawyer Vice President, noted, "The imprisonment of Mr. Diaz is part of the ongoing purge of military officers who have protested or attempted to stand up to the litany of human rights abuses at the Guantanamo Bay concentration camp. This includes Chaplain [James] Yee, unjustly prosecuted after speaking out about abuses of detainees, and the military attorneys who have been expelled for successfully defending their clients in court."

The military attorneys referred to by Wright included Navy Lt. Commander Charles D. Smith, who served as defense counsel for Salim Ahmed Hamdan, a former driver for Osama bin Laden. Smith successfully argued that Hamdan's military commission hearing was illegal under U.S. military law and the Geneva Conventions. See: Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006). In October, 2006, about two weeks after the Supreme Court?s ruling in Hamdan, Smith learned he had been passed over for promotion and thus was forced to retire from the Navy.

Diaz isn't the only official who has faced reprisals after refusing to keep quiet about government abuses. CIA officer Mary O. McCarthy, employed in the agency's inspector general's office, was fired in April 2006 amid an investigation into details about clandestine CIA prisons in Eastern Europe that were leaked to Washington Post reporter Dana Priest. McCarthy denied providing the information, and her attorney said she didn't have access to the classified material she was accused of leaking.

McCarthy wasn't prosecuted but was fired ten days before her retirement, apparently to send a not-so-subtle message to other CIA employees.

According to a May 14, 2006 Washington Post report based on interviews with three of McCarthy's friends, McCarthy felt that "CIA people had lied" during a Senate briefing on abusive interrogations, and she had seen "things in some of the investigations that troubled her." CIA officials stated she was fired because she had "undisclosed contacts" with journalists, including Priest (Priest won a Pulitzer Prize in 2006 for her reporting on the intelligence community).

Further, on July 17, 2006, a contract employee who worked for the CIA was terminated for posting a message questioning interrogation techniques on Intelink, an internal computer server used by intelligence agencies. Christine Axsmith, who had top-secret security clearance, had authored a blog on Intelink that criticized the use of waterboarding during interrogations.

Waterboarding is where prisoners are tied to a board and then submerged in water to the point of near drowning. The US government has denied that waterboarding constitutes torture in violation of the Geneva Conventions.

The CIA objected to Axsmith's comments, which began, "Waterboarding is torture, and torture is wrong." CIA officials notified her employer, B.A.E. Systems, which quickly fired her.

In addition to the perpetual war on terror, the U.S. government is apparently waging a war of intimidation against its own employees in an effort to stamp out dissent over administrative abuses. Government officials would be better off stamping out the abuses themselves -- such as not condoning torture, not operating clandestine overseas prisons, and complying with Supreme Court rulings. Admittedly, however, it must be difficult for government authorities who lack consciences to understand the ethical motives and moral reasoning of those who act on their conscience.

Sources: New York Times, Washington Post, The Virginian-Pilot, Dallas Morning News

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