We received this from Deryl Dantzler, Dean of the (much revered) National Criminal Defense College:

The 911 Commission Staff Statement of 4/13 points out that the pervasive practice of concealment of information from criminal defendants was part of the reason that the FBI was unable to process the information they had. Efforts to circumvent Brady, Rule 16 and 18 USC 3500 prevented them from doing their jobs!

As prepared for delivery to the National Commission on Terrorist Attacks Upon the United States Law Enforcement, Counterterrorism, and Intelligence Collection in the United States Prior to 9/11 Staff Statement No. 9:

"

"Agents developed information in support of their own cases, not as part of a broader, more strategic effort. Given the poor state of the FBI's information systems, field agents usually did not know what investigations agents in their own office, let alone in other field offices, were working on. Nor did analysts have easy access to this information. As a result, it was almost impossible to develop an understanding of the threat from a particular international terrorist group.

"Agents investigated their individual cases with the knowledge that any case information recorded on paper and stored in case files was potentially discoverable in court. Thus, there was a disincentive to share information, even with other FBI agents and analysts. Analysts were discouraged from producing written assessments which could be discoverable and used to attack the prosecution's case at trial."

"

The full text of the statement is available here. (pdf)

by TChris

Attorney General John Ashcroft seized the opportunity afforded by 9/11 to launch an assault on the Constitution and on legislation designed to hold the power of law enforcement and prosecutorial agencies in check. But what did Ashcroft do about the threat of terrorism before 9/11? Not much, according to sources who have seen draft reports by the 9/11 commission.

TalkLeft has called attention to documents indicating that Ashcroft de-emphasized terrorism and to reports that he may have actually hindered counterterrorism efforts. It appears that the draft reports of the 9/11 commission confirm that view.

They said the draft reports, which are expected to be completed and made public during two days of hearings by the commission this week, show that F.B.I. officials were alarmed throughout 2001 by what they perceived as Mr. Ashcroft's lack of interest in terrorism issues and his decision in August 2001 to reject the bureau's request for a large expansion of its counterterrorism programs.

The draft reports, they said, quote the F.B.I.'s former counterterrorism chief, Dale Watson, as saying he "fell off my chair" when he learned that Mr. Ashcroft had failed to list combating terrorism as one of the department's priorities in a March 2001 department-wide memo.

The Justice Department has launched an aggressive campaign to persuade the commission to rewrite sections of the report that are unflattering to Ashcroft. Whether or not that happens, word is out about Ashcroft's inattentiveness, and his defense (amounting to "nobody ever told me that terrorism might be a domestic problem") will be a hard sell when he testifies before the commission.

Via NPR, here's what's on tap for today at the 9/11 Commission hearings:

On Tuesday, April 13 and Wednesday April 14, the 9-11 Commission (the National Commission On Terrorist Attacks Upon the United States) will hold public hearings. The Commission will hear from current and former top-level officials from our nation's law enforcement and intelligence communities. Attorney General John Ashcroft, Director of Central Intelligence George J. Tenet, FBI Director Robert S. Mueller III will testify before the Commission, as well as former Attorney General Janet Reno, former FBI Director Louis J. Freeh and former Acting FBI Director Thomas J. Pickard. NPR's Frank Stasio will anchor our coverage which will originate live from the Hart Office building in the Capitol complex. The hearings are expected begin at 8 a.m. CT. Additional information can be found at the Commission's website .

We'll be in court for the morning and unable to tune in, so here's an open thread to discuss the hearings.

A year after his release from jail, Josiah Sutton finally receives some justice. Sutton served 4/12 years of a 25 year sentence for rape before DNA tests proved he could not be the culprit. A Houston judge has recommended his conviction be overturned. The Texas Court of Criminal Appeals will make the final decision.

State District Judge Joan Huffman's recommendation was the latest court victory for Josiah Sutton, 22, who was freed from prison more than a year ago after new DNA tests discredited the original analysis performed by the Houston Police Department crime lab. Huffman said "inaccurate scientific evidence was admitted during the trial" and there was "clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence." Huffman's ruling will be sent to the state Court of Criminal Appeals, which will decide what to do with Sutton's conviction.

Sutton's justice is not complete, however. The Judge refused to find prosecutorial misconduct based upon Sutton's claim that the prosecution withheld evidence at his trial.

The trial of Saudi graduate student Sami Omar Al-Hussayen, accused of operating web sites and raising money and recruits for terrorists, begins in Boise, Idaho tomorrow.

Al-Hussayen has been indicted on charges of terrorism and immigration fraud, accused of working his considerable computer skills for a jihadist network stretching from Saudi Arabia to the United States, from Chechnya to the occupied territories. The indictment says Al-Hussayen's efforts succeeded in inspiring Muslims to join the jihadist movement.

The Government once again is relying upon the "providing material support to a terrorist organization" statute to make its case. The case made the news in February of 2003 when the feds swooped down on the University of Idaho Campus. We wrote about it here, here and here.

What's unique about the case is that it will be the first time the Government tries to convict someone for providing material support to a terrorist organization chiefly for promoting militant Islam online. The Wall St. Journal reports (subscription required):

If you think that the prescription drugs you take are a personal, private matter between you and your doctor and maybe your insurance company, and you live in Florida, you might want to move because Jeb Bush has a different idea:

A proposal Gov. Jeb Bush is championing to create a massive electronic tracking system of who is prescribing and who is using prescription drugs is in trouble in the Florida Legislature. With three weeks left in the 2004 lawmaking session, Bush is doing high-pressure lobbying to persuade leaders of his own party about the merits of the database. It could allow doctors, designated medical assistants and pharmacists to look up online the pharmacy records of patients over the age of 17 to ensure they haven't been shopping for multiple prescriptions.

Every pharmacy record for certain classes of potentially addictive drugs, such as anxiety-fighting Xanax, mood-changing Valium and painkilling OxyContin, would be monitored.

The new issue of Vanity Fair arrived today. We just finished reading Dominick Dunne's column on the Martha Stewart verdict. It's refreshing to see Mr. Dunne take the side of a defendant for a change. Dunne reported one item we hadn't seen before. Remember Mariana Pasternak, Martha's long-time friend who delivered the devastating testimony that while on a Mexican vacation, Martha said "Isn't it nice to have brokers who tell you these things?" Mariana had been on the tarmac with Martha while her plane was being refueled when Martha received the critical phone call from Douglas Faneuil advising that Waksal was selling his ImClone stock. Dunne reports,

The fateful telephone call from Douglas Faneuil to Martha in San Antonio telling her that Sam Waksal was dumping all his stock....was on Dec. 27. Late that same day, there were rumors on Wall Street that Waksal's drug Erbitux was not going to be approved by the F.D.A. In Westport on December 28, Dr. Bart Pasternak, Mariana's ex-husband and the father of her daughters, sold $600,000. worth of ImClone shares --far more than Martha sold.

Interesting. We wonder if Mariana called her ex to tell him the news about Waksal. And if during the conversation, she perhaps said to him, "Isn't it nice to have brokers who tell you these things?" If so, perhaps her testimony on cross that she couldn't remember if Martha actually spoke those words or if that's just what Mariana was thinking, is closer to the truth.

Did the feds ever think that Mariana passed the tip on to her ex-husband? Dunne reports that Martha paid "tens of thousands of dollars" of Mariana's legal fees "before she began speaking with the government in 2002 about Stewart's ImClone sale." If Mariana wasn't under investigation for wrong-doing, why were her legal bills so high?

Has anyone else reported on this?

by TChris

As TalkLeft discussed here and here, Darryl Hunt won his freedom after DNA tests and the true perpetrator's confession established that he didn't commit the 1985 rape and murder that sent him to prison. Hunt's lawyers recently presented North Carolina Gov. Mike Easley with a request for a "pardon of innocence." Granting the pardon would open the door to Hunt's ability to recover $360,000 in compensation for the 18 years of wrongful incarceration that he endured.

Hunt's lawyer, Reuben Young, thinks a pardon would be just.

"I don't know what the argument would be against pardoning him. He's innocent. And if he's innocent, the state stole 18 years of his life."

Gov. Easley has only granted one pardon of innocence, but in that case (as in Hunt's) DNA proved the defendant's innocence. If Gov. Easley uses that case to guide his decision in this one, Darryl Hunt may eventually get some of the help he'll need to rebuild his life.

by TChris

Supreme Court Justice Antonin Scalia, responding to a letter from the Reporters Committee for Freedom of the Press that criticized federal Marshals for seizing and erasing tape recordings of speeches he gave to students, announced that he is revising his policy "so as to permit recording [of his speeches] for use of the print media." He said that he has also written letters of apology to the reporters involved. TalkLeft's background on this controversy is available here and here.

In his letter to the Reporters Committee, Scalia, 68, said he doesn't control the marshals' actions and will express his "preference'' that they not confiscate recordings.

In other words, Justice Scalia now prefers that the Marshals obey the law, which prohibits the seizure of notes or recordings from journalists under most circumstances. The Committee's letter (pdf) to John Ashcroft and the Marshals has not been answered, but a spokeman for the Marshals' office promised a response after the letter has been reviewed.

Update: from New York Times Columnist Bob Herbert:

When agents acting on behalf of a Supreme Court justice can just snatch and destroy information collected by reporters, we haven't just thumbed our nose at the Constitution, we've taken a very dangerous step in a very ugly direction. The depot at the end of that dark road is totalitarianism.

[hat tip to Sean Paul at The Agonist]

by TChris

Facing growing criticism of his administration's handling of the war in Iraq and unresolved questions about his attention to terrorism prior to 9/11, President Bush will return to the White House to give a prime time press conference tomorrow night. The conference will be held in the East Room, perhaps to underscore the gravity of the questions he is likely to address.

The East Room of the White House is usually reserved for formal events. Only two of Bush's 11 press conferences have been held there -- one on Oct. 11, 2001, in the wake of the Sept. 11 attacks, and another on March 6, 2003, on the eve of the Iraq invasion, the White House said.

The press conference will begin at 8:30 p.m. Eastern time.

Seven more Americans are missing in Iraq.

Two U.S. soldiers and seven employees of a U.S. contractor were still missing after an attack on a convoy west of Baghdad, Lt. Gen. Ricardo Sanchez said Monday. A wave of kidnappings continued with the capture of seven Chinese and two Czech civilians. The U.S. military said the contractors were working for Kellogg, Brown & Root, a unit of oil field services company Halliburton Co., the largest contractor in Iraq. They vanished after an attack on a U.S. convoy in Abu Ghraib, west of Baghdad. Two U.S. soldiers also disappeared in the incident.

The Christian Science Monitor posits: Have We Miscalculated in Iraq?

Terry Nichols' lawyers asked the court today to dismiss the charges against him, alleging that the Government has withheld critical information. The last time this occurred, the Judge said he would throw out the case if it happened again. He has taken the motion under advisement.

The motion claims prosecutors have withheld a video showing suspects leaving the Ryder rental truck that delivered the bomb just over three minutes before the detonation. No such video has been shown to exist. It also claims prosecutors failed to disclose a phone call McVeigh made to a right-wing enclave in Oklahoma known as Elohim City after he rented the Ryder truck. Allegations have surfaced over the years that McVeigh might have received help from people living there.

The motion also says prosecutors did not provide defense attorneys with documents disclosed in a series of Associated Press stories raising the possibility of additional accomplices in the bombing. Those documents included two 1990s teletypes from then-FBI Director Louis Freeh's office citing possible connections between McVeigh and a gang of white supremacist bank robbers.

A video showing suspects leaving the Ryder rental truck that delivered the bomb just over three minutes before the detonation? That's news to us, and if it exists, that would be powerful, new evidence.