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Profile: Gladys Kessler
Gladys Kessler was a participant or observer in the following events:
US District Court Judge Gladys Kessler, appointed to the bench by former President Bill Clinton, rules that the Bush administration is within the law in refusing to release documents pertaining to pardons issued by Clinton to Congress (see August 21, 2001 and December 13, 2001). Judicial Watch president Tom Fitton accuses Kessler of endorsing the Bush administration’s claim of executive privilege in order to protect Clinton’s reputation. The White House hails the ruling, and spokesman Scott McClellan notes that the courts have now recognized that the privilege “applies to former, current, and future presidents.” In 2007, author and reporter Charlie Savage will write that the ruling hands “the Bush-Cheney legal team another victory in its bid to expand the White House’s power to keep its inner workings secret.” [Savage, 2007, pp. 99]
Henry Kennedy. [Source: District Court for the District of Columbia]In June 2005, US District Judge Henry Kennedy orders the Bush administration to safeguard “all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay.” US District Judge Gladys Kessler issued a nearly identical order one month later. Later that year, the CIA will destroy videotapes of the interrogation and possible torture of high-ranking al-Qaeda detainees Abu Zubaida and Abd al-Rahim al-Nashiri (see November 2005). In 2005, Zubaida and al-Nashiri are not being held at the Guantanamo prison, but at secret CIA prisons overseas. But while evidence of torture of Zubaida and al-Nashiri is not directly covered by the orders, it may well be indirectly covered. David Remes, a lawyer for some of the Guantanamo detainees, will later claim, “It is still unlawful for the government to destroy evidence, and it had every reason to believe that these interrogation records would be relevant to pending litigation concerning our client.” In January 2005, Assistant Attorney General Peter Keisler assured Kennedy that government officials were “well aware of their obligation not to destroy evidence that may be relevant in pending litigation.” [Associated Press, 12/12/2007] In some court proceedings, prosecutors have used evidence gained from the interrogation of Zubaida to justify the continued detention of some Guantanamo detainees. Scott Horton writing for Harper’s magazine will later comment that “in these trials, a defendant can seek to exclude evidence if it was secured through torture. But the defendant has an obligation to prove this contention. The [destroyed videotapes] would have provided such proof.” [Harper's, 12/15/2007]
Sharon Eubanks. [Source: Washington Post]Justice Department prosecutors appointed by the Bush administration interfered in the landmark lawsuit against tobacco companies, says the leader of the prosecution team, Sharon Eubanks. Eubanks says that Bush loyalists in Attorney General Alberto Gonzales’s office began micromanaging the team’s strategy in the final weeks of the 2005 trial, to the detriment of the government’s claim that the industry had conspired to lie to US smokers. Eubanks says that a supervisor demanded that she and her trial team drop recommendations that tobacco executives be removed from their corporate positions as a possible penalty. He and two others instructed her to tell key witnesses to change their testimony and ordered her to read verbatim a closing argument they had rewritten for her. “The political people were pushing the buttons and ordering us to say what we said,” Eubanks says. “And because of that, we failed to zealously represent the interests of the American public.” Eubanks, a 22-year veteran at the Justice Department, says three political appointees were responsible for the last-minute shifts in the government’s tobacco case in June 2005: then-Associate Attorney General Robert McCallum, then-Assistant Attorney General Peter Keisler, and Keisler’s deputy at the time, Dan Meron. The sudden strategy change sparked an uproar in Congress, and led to an inquiry by the Justice Department. Government witnesses said they had been asked to change testimony, and one expert withdrew from the case. Government lawyers also announced that they were rolling back a proposed penalty against the industry from $130 billion to $10 billion. Justice Department officials say that there was no political meddling in the case, an assertion supported by the department’s Office of Professional Responsibility. Eubanks, who left the department in December 2005, has not spoken publicly about the case until now. She says she is now coming forward because she is concerned about what she calls the “overwhelming politicization” of the department demonstrated by the controversy over the firing of eight US attorneys. Lawyers from Justice’s civil rights division have made similar claims about being overruled by supervisors in the past. Eubanks says Congress should investigate the matter along with the US attorney firings. “Political interference is happening at Justice across the department,” she says. “When decisions are made now in the Bush attorney general’s office, politics is the primary consideration.… The rule of law goes out the window.” US District Judge Gladys Kessler ruled in August 2006 that tobacco companies violated civil racketeering laws by conspiring for decades to deceive the public about the dangers of their product. She ordered the companies to make major changes in the way cigarettes are marketed. But she said she could not order the monetary penalty proposed by the government. Matthew Myers of the Campaign for Tobacco-Free Kids was one of the witnesses whom Eubanks asked to change his testimony. Yesterday, he said he found her account to be “the only reasonable explanation” for what transpired. Eubanks says that she was particularly distressed when McCallum, Keisler, and Meron ordered her to read word for word a closing argument they had rewritten. The statement explained the validity of seeking a $10 billion penalty. “I couldn’t even look at the judge,” she says. [Washington Post, 3/22/2007]
FBI special agent and whistleblower Robert G. Wright Jr. wins the right to publish most of the information over which he has been fighting the FBI in court for nearly seven years (see May 9, 2002). US District Court Judge Gladys Kessler rules that Wright can publish most of the information in his 500-page manuscript, all of the information in two complaints he had filed with the Department of Justice Office of Inspector General regarding the FBI’s handling of terrorism investigations, and his answers to New York Times reporter Judith Miller’s questions. Kessler also rules that Wright’s colleague and co-plaintiff, FBI Special Agent John Vincent, can publish his answers to Miller’s questions.
Judge Repeatedly Faults FBI - In her 41-page memorandum opinion, Kessler repeatedly finds fault with the FBI. The preface to the opinion summarizes the proceedings and the related issues in this way: “This is a sad and discouraging tale about the determined efforts of the FBI to censor various portions of a 500-page manuscript, written by a former long-time FBI agent, severely criticizing the FBI’s conduct of the investigation of a money laundering scheme in which United States-based members of the Hamas terrorist organization were using non-profit organizations in this country to recruit and train terrorists and fund terrorist activities both here and abroad. The FBI also sought to censor answers given by both plaintiffs to a series of written questions presented to them by a New York Times reporter concerning Wright’s allegations about the FBI’s alleged mishandling of the investigation. In its efforts to suppress this information, the FBI repeatedly changed its position, presented formalistic objections to release of various portions of the documents in question, admitted finally that much of the material it sought to suppress was in fact in the public domain and had been all along, and now concedes that several of the reasons it originally offered for censorship no longer have any validity. Unfortunately, the issues of terrorism and of alleged FBI incompetence remain as timely as ever.” [Memorandum Opinion: Wright, v. FBI (PDF), 5/6/2009 ]
A 'Pyrrhic Victory' for Wright - Reporting on the case for Politico, Josh Gerstein will call the outcome “a pyrrhic victory for [Wright], since the passage of time appears to have diminished the market for his book.” Gerstein will quote one of Wright and Vincent’s lawyers, Paul Orfanedes of Judical Watch, as saying, “It’s a perfect example of how delaying somebody’s ability to publish is a clear violation of their rights.” Gerstein will also report, “Orfanedes said Wright’s book ‘might be made public in a reduced format,’ but that the group’s main hope now was to expose how the government system for pre-publication reviews of books by FBI, CIA, and other national security-related officials, is dysfunctional.” [Politico, 5/11/2009]
FBI Attempts to Censor Judge's Memorandum Opinion and Fails - In an ironic twist, an FBI demand for redaction of a portion of Kessler’s memorandum opinion calls attention to that portion of the text, which is easily readable due to improper redaction technique; the text under the blacked out portion can be copied and pasted. The redacted portion is an FBI argument for why a portion of Wright’s manuscript must be redacted. It reads, “[D]isclosure of the location and use of this infrastructure could allow individuals to survey, attempt to penetrate, or disrupt the activities that take place in the infrastructure.” It is unclear why the FBI believes that a general reference to sensitive infrastructure is sensitive in itself. [Memorandum Opinion: Wright, v. FBI (PDF), 5/6/2009 ; Memorandum Opinion: Wright, v. FBI (PDF), 5/6/2009; Memorandum Opinion: Wright, v. FBI (PDF), 5/6/2009]
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