No Comment — October 23, 2007, 7:46 am

The Persecution of Lt. Cmdr. Diaz

On a cold October evening in 1941, a military lawyer sat at home in Berlin in his apartment composing a letter to his wife. What he had seen and learned that day in the office were wildly disturbing. He struggled for a solution. What should I do?

As I sit here, innumerable executions are going on in France. More than a thousand people are murdered every day, and thousands of German men get used to the process of murdering. And yet all that is child’s play compared to what is happening in Poland and Russia. Is it possible for me to learn about this and simply sit at home in my heated apartment and drink tea? Don’t I make myself culpable by doing nothing? And what will I say when I am asked: and what did you do during these trying times?

The man in question was Helmuth von Moltke. He decided to do something. He struggled by day against the brutality of the Nazi system, dispensing advice against the wishes of his masters that saved thousands of lives. And by night, he and a circle of close friends met and planned. They planned and prepared documents to prosecute their own colleagues for war crimes and crimes against humanity when the war had run its course. Moltke and his collaborators knew that if they were caught they would be interrogated, tortured, and executed. And in the last months of the war, they met this gruesome fate. Today, though the name “Helmuth von Moltke” is associated with three historical figures, two of them leaders of the German military, by consensus the greatest of these is Helmuth von Moltke, lawyer of conscience, who stood against the barbarities of the Nazi regime and suffered martyrdom as a result.

Reading the story of Matthew Diaz, I kept thinking back to Helmuth von Moltke. It is true of course that Matthew Diaz was not facing the authors of a holocaust. But his tale is nevertheless a tale of moral courage in the face of cruelty, inhumanity, and illegality. He demonstrated many of the same traits that Moltke showed. For his persecutors, he is an officer who disobeyed orders, nothing more. For others, and most likely for generations of future Americans, he will be a moral example. A military lawyer who witnessed wrongdoing and acted against it.

In Sunday’s New York Times Magazine, Tim Golden probes deeply into the Diaz story and offers a warm and compassionate story. Here’s his description of the act of defiance that was to prove Diaz’s unmaking:

Sitting at a secure desktop computer, he printed out page after page of classified information, pulling each batch from the printer in case anyone wandered by. When he was done, Diaz had assembled a document 39 pages long. In tiny type, it listed names, prison serial numbers and other information for each of the 551 men who were then being held by the United States at Guantanamo Bay.

There was no question of the government’s desire to keep the information secret. Six months earlier, the Supreme Court rocked the Bush administration by upholding the Guantánamo prisoners’ right to challenge their detention in habeas corpus proceedings. But the administration fought on, taking the narrow view that while the detainees might have been granted their day in federal court, they still had no “legal rights” — and specifically no right to counsel. Pentagon officials said that they were withholding the prisoners’ names for their own safety. But keeping the names secret made it harder for volunteer lawyers to file petitions on the prisoners’ behalf and for critics to dispute official claims that virtually all the men were terrorists.

Diaz’s indignation at the government’s policies had been building since he arrived at Guantánamo. He did not doubt that there were dangerous men there. But he had come to believe that the Pentagon was misrepresenting how the detainees were treated and the threat some of them posed. As a lawyer, he found the recalcitrance of the White House indefensible. The Supreme Court had spoken. Why couldn’t the administration go before a judge and show why these men should be held indefinitely and without charge? “I feel like I’m on the wrong side,” he confided to a couple of the lawyers who were representing Guantánamo prisoners.

Now, Diaz knew he was crossing a line. For nearly two weeks after printing the list, he kept it locked inside the safe in his office. On another late night, he carefully trimmed the pages down to the size of large index cards. Then, on Jan. 14, the last night of his tour, he went back to the office one more time. While his colleagues were getting ready for his farewell dinner, he slipped the stack of paper inside a Valentine’s Day card he had bought at the base exchange. It was an odd touch. The card showed a cartoon puppy with long ears and bubble eyes and the greeting, “Hope Valentine’s Day is just your style.” Diaz would later say that he chose it because it was big enough to hold the list. He also hoped the lipstick-red envelope might pass unscrutinized through the Guantánamo post office.

Diaz notes that he was not a critic of the Bush Administration or its policies in dealing with detainees. He thought the detainees really presented a threat and it was important that they be closely confined. Then he got transferred to Guantánamo and started seeing with his own eyes what was being done.

The Supreme Court decided the Rasul case on June 28, 2004, a week before Diaz arrived on Guantánamo. On his first full day on the base, he went along to watch guards notify the detainees about the new system of parole-type review boards that the military was hurriedly setting up in response to the ruling. Diaz was skeptical of the plan. “It just didn’t seem right that we were creating this new process that no one really ever heard of instead of finding a way to let them get into district court,” he said later.

Diaz had seen his share of prisons, both military and civilian. But he had never seen anything like the wire-mesh cages at Guantánamo. The prisoners looked more sad than fearsome, Diaz said. In Camp 4, where more-compliant detainees lived in barrackslike quarters, Diaz came upon an older prisoner shuffling along with a walker. “This is what I’d been told were the worst of the worst?” he recalled thinking. One detainee stuck out his hand as Diaz walked up. He took it without thinking, and the guards shot each other looks. “I thought, O.K., I shouldn’t do that.”

As the deputy staff judge advocate for Joint Task Force Guantánamo, Diaz had a ground-level view of the legal dramas that were unfolding in the camp. He delivered lawyers’ mail to the detainees. He dealt with the prosecutors and defense attorneys preparing for the military commission trials. With that spring’s Abu Ghraib scandal still fresh, Diaz was assigned to begin compiling a spreadsheet for internal use on the abuse allegations registered at Guantánamo. He was uneasy, he said, but hoped that he could make a positive impact. “I figured I could do my part to make sure things were done right,” he told me. “I felt that way about the military-justice system.”

Later during his first month at the detention center, Diaz’s boss was off the island when a call came in from the regional military command that oversees Guantánamo from Miami. The Justice Department was proposing rules to the federal courts for the civilian lawyers who wanted to visit detainees. Justice officials wanted the military to be able to listen in on meetings between the prisoners and their lawyers, and Diaz was told to work with intelligence officers to come up with an explanation of why such monitoring was necessary.

Diaz said he went to report the assignment to the Guantánamo chief of staff, Col. Tim Lynch. It turned out that Lynch had been over this ground before. As Diaz sat down in his office, he recalled, Lynch dialed his counterpart in Miami and demanded to know why Washington was insisting on monitoring that the intelligence officers at Guantánamo had already said was unnecessary. “ ‘Why are we doing this?’ ” Diaz quoted Lynch as saying. “ ‘My guys have told me they don’t need it. The boots-on-the-ground guys, they don’t need it!’ ”

Lynch was irate, Diaz said. But Diaz was more taken aback by the substance of the exchange than by its tone. (Lynch did not respond to my repeated e-mail messages requesting comment.) “D.O.J. wanted this,” Diaz told me, “so we had to make up some reasons why we needed it.” Justice Department officials sent an affidavit to be signed by the Guantánamo commander asserting that some of the detainees had been trained to pass “coded messages in furtherance of terrorist operations” to comrades on the outside. Diaz and the intelligence officers were asked to show how 12 detainees from Kuwait (whose lawyers were challenging the visiting rules in court) might pull off such a plot. But the officers could find only three Kuwaitis who sounded plausibly dangerous enough, and even then, the administration’s claims were rejected by the court. “It was a reach,” Diaz recalled. “We were just throwing up these obstacles in the way of implementing the Rasul decision…”

And then there were the mounting cases of prisoner abuse.

The prisoner-abuse files that he and others had compiled now filled two large binders. One statement, from a senior F.B.I. official, suggested that the military authorities had ignored complaints from bureau agents about harsh interrogation techniques. Another recounted a detainee’s claim that a guard had thrown him to the ground and rubbed his face violently in the dirt after the prisoner spat at him. Diaz found the report credible — the file included a photograph of the prisoner’s mangled face — and was surprised that it was not included among the allegations that the military made public.

So what upset Diaz? A conscious pattern of dealings designed to obstruct the implementation of a decision of the Supreme Court. It was implemented by a series of lies and misrepresentations. And it was a steady practice of mistreating the prisoners, now exhaustively documented. And who was the author, or at least the task-giver for this highly unethical (indeed, potentially criminal) conduct? The United States Department of Justice. It’s hard to imagine how a lawyer would not be disturbed about this. Unless of course the lawyer had been transformed into a mindless automaton interested only in career advancement.

Diaz was court-martialed when it was discovered that he had delivered the prisoner information to the CCR lawyers. The Bush Administration had to scramble feverishly to concoct a basis to court-martial him. The lawyers were entitled to the identifying information about the prisoners. The Bush Administration’s decision to withhold it had been, in fact, a criminal act carried out in defiance of a Supreme Court ruling and the law. But one column in the sheet that Diaz transmitted contained some codes which meant nothing to Diaz or to anyone else who received them. The Bush Administration claims—though skepticism with respect to its claims is well advised—that these codes contained some sort of classified information. On that basis Diaz was court-martialed and sentenced to a term of six months in prison. For Mr. Golden, six months is “notably light.”

That’s the one clear mistake in this piece. The sentence was outrageous, as was the prosecution. Diaz was not prosecuted because he in any way jeopardized national security or put Americans at risk, because he almost certainly did neither. He was prosecuted for a thought crime. He disagreed with an Administration policy that involved subversion of the rule of law. Lying to courts. Blocking the implementation of the Rasul decision. Diaz put the law ahead of the president. And to the Bush Administration, that was an unacceptable threat.

And the term of six months? Compare Lt. Cmdr. Diaz’s thought crime with the real crimes committed at Guantánamo, Bagram, Abu Ghraib, and Camp Cropper. More than a hundred deaths in detention and several dozen of them linked to the use of abusive interrogation techniques. How many successful homicide prosecutions? One, involving a contractor. Compare it with the sentence of no prison time given to Lt. Col. Steve Jordan, the officer in place in Abu Ghraib when the worst abuses there occurred. He knew, watched, and counseled. He did nothing to block what happened. All of these court-martials together send quite a message. Torture, abuse, mistreat all you like. You’re unlikely to face any adverse consequences. But hold an opinion hostile to the Bush Administration and take an action on it, and your career is over. Plus six months in jail.

Today, throughout Middle Europe the name Helmuth von Moltke marks streets and squares. Markers were erected to his memory in Germany, Poland, and Israel. And his persecutors? In fact not a few of them ultimately met their proper end on the gallows.

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