Conduct Unbecoming

by Katherine

This is the saddest story I've read in a while:

Attorneys for a Navy lawyer facing up to 24 years in military prison for mailing a list of Guantánamo detainee names to a civil liberties group -- inside a Valentine -- argued at his court-martial Monday that the document wasn't secret and their disclosure did not endanger national security.

Lt. Cmdr. Matthew Diaz, 41, a Navy JAG or Judge Advocate General, faces five charges ranging from unlawfully releasing classified material to conduct unbecoming an officer....

''This case deals with the deliberate, intentional, conscious release of classified information,'' the prosecutor, Navy Lt. James Hoffman, told a jury of seven Navy officers at the week-long trial's opening here at Naval Station Norfolk.

Defense attorneys countered that the material wasn't marked ''SECRET'' on the computer screen or on the printout, drawn from a Guantánamo database that contains intelligence on war-on-terror captives.

But, in opening arguments, both sides agreed that Diaz mailed the 39-page computer printout of the names and serial numbers to the New York Center for Constitutional Rights in January 2005.

He shrunk the pages in a copier to the size of an index card, Hoffman told the jurors. Then he tucked them inside a Valentine's Day card bearing a picture of a droopy-eyed Chihuahua, and mailed it in a fire-engine-red envelope with a return address of Joint Task Force Guantánamo, at the U.S. Navy base in remote southeast Cuba.

At the time, the civil liberties group was leading the charge in federal court to file unlawful detention suits called habeas corpus petitions on behalf of as-yet-unidentified captives.

But rather than use the list to transform a John Doe lawsuit into one with detainees' names, CCR attorney Barbara Olshansky testified that she called a Washington, D.C., federal court, where the lawsuits were filed, and was instructed to turn it over to a security officer.

FBI agents tracked it back to Diaz through fingerprints.

At issue is whether the information was then classified and whether it endangered U.S. national security and helped America's enemies by mailing it to a New York City human rights attorney whose clients included war-on-terror captives.

The prosecutor argued that trial evidence would show that the information Diaz downloaded from a largely classified intelligence website -- including codes and serial numbers -- ``puts at risk lives of our soldiers, sailors, airmen and Marines on the front line in the war on terror.''

But a defense counsel, Navy Lt. Justin Henderson, said his client had a ''crisis of conscious'' during a six-month tour at the offshore prison, where he was deputy staff judge advocate -- and didn't believe the names were a national security secret.

''We don't expect the evidence will show that Matt Diaz made the right decision. We don't expect the evidence will show he made a wise decision,'' said Henderson. ``He made a decision that was less than forthright. But he did not make an unlawful decision.''

Diaz, a 17-year veteran of U.S. military service, started out as an enlisted soldier but subsequently got a law degree at the Washburn University School of Law in Topeka, Kan., and a commission as a Navy officer.

He was based at Guantánamo in late 2004 and early 2005, when civil liberties lawyers were arguing in federal court that a U.S. Supreme Court decision, Rasul v. Bush, meant the Bush administration should release all Guantánamo detainees' names.

But it would be more than a year before those names were released -- after another court ordered their release in a Freedom of Information lawsuit filed by the Associated Press.

Diaz's civilian attorney, a former Marine Corps major and military judge, Patrick McLain, said lawyers would put on a defense later this week that spoke to Diaz's good character and a ''hardscrabble'' upbringing as a child of divorce whose father has been on California Death Row for more than 20 years.

McLain said his Navy attorney client, Diaz, believes his father was wrongly convicted of killing patients as a healthcare provider -- and said he'd provide details later this week.

When he was charged this summer, Diaz initially faced six charges and, if convicted, a maximum of 36 years in prison.

Through pretrial motions and hearings, the military judge, Navy Capt. Daniel O'Toole, reduced the charges to five, punishable by a maximum of 24 years of incarceration

I don't know precisely what the legal issues are. I'm not so familiar with the military justice system. I would think that the federal court order that this information be released under FOIA demonstrates that it was not properly classified, and I would really like to see the prosecution prove that it actually put soldiers' lives at risk, but I've never understood how "conduct unbecoming an officer" isn't an unconstitutional charge in the first place.

I do know that our classification system is broken. The executive order governing classification forbids classifying information to "conceal violations of law, inefficiency, or administrative error," "prevent embarrassment to a person, organization, or agency," or "prevent or delay the release of information that does not require protection in the interest of national security," but this requirement is violated constantly. The Bush administration wasn't the first to do it, but it's just gotten too blatant now.

The administration has engaged in violations of the Anti-Torture Statute and the War Crimes Act; classified the evidence of these violations; invoked the state secrets privilege to prevent victims from suing for civil damages for their treatment; suspended the writ of habeas corpus; and used their control of the Department of Justice to ensure that these violations are not prosecuted in civilian courts. The military has prosecuted more people, but their track record isn't exactly impressive either. The higher level officials who are ultimately responsible are still in power, or they have retired with medals and generous book deals.

And now it seems that a soldier who turned over a list of prisoner's names to some civil rights lawyers, so that they couldn't be held indefinitely without trial, may go to jail for longer than a number of soldiers and CIA agents who beat prisoners to death. And it's barely even news.

I don't want to live in this kind of country. I don't.

But you all knew that already, right? I've said it 100 times before. And I actually knew about Diaz's case before I read this article. What was new to me, and what's getting to me right now, was the stuff about CCR's role, and Diaz's father being on death row.

I would assume that CCR thought this over very carefully and felt their only option was to call the security officer. I would assume that they concluded to do otherwise would have risked violating the protective order in their case & jeopardized their access to their clients, and their first obligation was to their clients. And they would know. Diaz probably would have been better off sending it to the Associated Press, or some other journalist or NGO not engaged in direct representation, but he probably didn't want it published on the internet. He was probably trying to limit the disclosure to people who really needed the information. 

I obviously don't know a damn thing about his father's death row case. I would assume this is the relevant Wiki entry, but it cites no sources and does not read like the work of a detached, neutral, observer--for all I know it was written by a child who believed their father was wrongfully convicted:

There was no direct evidence against Diaz. No one had seen him inject a patient with a fatal dose of anything. He had no apparent motive to kill anyone. An alleged “smoking gun” syringe filled with an especially high solution of lidocaine was found hidden in the Valleys hospital 7 months after it closed. It fit the prosecution’s theory of how the alleged murders occurred. However, it appears to have been planted.

After Diaz’ arrest, investigators from the public defender’s office found that the hospital’s care was abominable. It was not unusual for there to be a Code Blue alert every night, and not just during Diaz’ employment there. Employees were often unable to read heart monitors and other basic equipment. Doctors often failed to respond to emergencies. During the deaths Diaz reportedly blamed the doctors who showed up late. Diaz may have served as a fall guy for the doctors.

Following standard procedures, Diaz’ defense would be extraordinarily costly to the cash strapped public defender’s office. To save money, a new administrator fired all the investigators and implemented a budget defense for Diaz. The reasoning seemed to be, “Better to sacrifice one suspected serial killer, than to risk harming the mass of office’s clients.” At trial, Diaz’ defense took the unusual tactic of saving money for itself and the state by presenting its case before a judge rather than a jury. This tactic was unusual because a judge would likely feel political pressure to convict a suspected serial killer. Most jurors would not likely feel as much pressure, and a single unconvinced juror could stop a conviction.

The judge convicted Diaz of 12 counts of first-degree murder. At sentencing, the defense failed to present character witnesses. It could at least have had each of Diaz’ five children state, “Don’t kill my Daddy.”

Despite what it may seem I don't usually post this stuff just to depress people, but I'm afraid a constructive or hopeful ending to this post is eluding me. But it's an interesting story, so I'm leaving it up.

Consider this your depressed open thread, or better still, your cheering-up-depressed-people open thread.

Comments

[Jesurgislac]

Sebastian: If there is any doubt whether or not the person was an unlawful combatant, they have a right to a competent tribunal.

No, you have that the wrong way round.

Article 4, it lists the people whom the Convention protects. In Article 5, it says that if someone has committed a belligerent act and fallen into the hands of the enemy, they are entitled to the protection of the convention until the detaining power holds a competent tribunal to prove them not so entitled.

If the detaining power has no doubt that their prisoner is a prisoner of war, they can simply hold them as a PoW. If the detaining power doubts that their prisoner is one of the people listed under Article 4, they have to hold a competent tribunal to prove their doubts either correct or incorrect. It's the principle of "innocent till proven guilty".

And the US government in 2001 publicly announced that it had no intention of holding to this convention with prisoners taken in Afghanistan.

[Jesurgislac]

(There is no reference to "unlawful combatants" in the Geneva Conventions, which I'm sure I've pointed out to you before, Sebastian.)

[OCSteve]

John: Thanks, but as far as being willing to listen, I’d attribute that to the forum and the regulars rather than on anything unusual on my part. The forum is well run with reasonable rules that are enforced. The regulars represent a bunch of intelligent people with diverse backgrounds who are for the most part reasonable folks. That makes for an environment where I can listen. It is not the same elsewhere, trust me.

There are some very talented and persuasive writers here, in comments as well as on the front page. Not reading them or engaging them would be my loss. But the end result is that I have to adjust my view of the world on occasion.

[Phil]

The idea that accused foreign violent criminals deserve a new status of "illegal combatants" in which they have no rights is very new and I think false. They have all the rights of accused violent criminals, which I believe in most ways are greater than the rights of POWs.

Indeed, if nothing else, they are supposed to be permitted to contact their embassies.

[Hartmut]

Indeed, if nothing else, they are supposed to be permitted to contact their embassies.
But as experience shows, the US do not necessarily do that even with "normal" criminals from foreign countries. I still remember a case of 2 German nationals that were condemned to death without even so much as telling them that they have a right to support from their government. The case went even up to the UN human rights court(?) because of that but that didn't keep the governor from a) refusing to reopen the trial b) refusing to stay the execution c) ignoring the UN verdict that demanded a retrial under fair conditions.
The execution took place as planned.
Iirc it was a typical Southern trial with "sleeping defense" and defendants that had no idea how the system works*.
If officials can ignore the law of the land even with no "threat to national security", why should they care, if they deal with potential terrorists?

*It must be said though that there was not much doubt that they had comitted the crime they were accused of but death was iirc not mandatory.

[Justin]

Sorry to come so late to this thread. I'm trying to catch up after the exile that was this trial. I'll say this about the case:

The charges were not frivolous;
This was not a politically motivated case;
The list was more than names;
The government had not properly marked the list;
LCDR Diaz was extremely happy with the outcome; and
Appeals will take a while...

More here:
http://tibbettsreport.blogspot.com/2007/05/back-from-hysteria.html