How to uncover and obtain discovery in legal proceedings

A spectacular description of discovery in the legal process. It’s a lot easier to uncover documents and names in a civil case than in this one, the defense of prisoners at Guantánamo, but there are certain phrases, which I’ve bolded, that are familiar to me in civil lawsuits.

In early 2008, the American Civil Liberties Union and the National Association of Criminal Defense Lawyers launched the John Adams Project to aid in the defense of Al Qaeda prisoners held at Guantánamo Bay. The project’s name commemorates the second President’s decision to defend British soldiers accused of carrying out the Boston Massacre. Trial lawyers from New York and elsewhere volunteered to help military defense lawyers …

The John Adams lawyers sought evidence that their clients had been tortured by the C.I.A., which could discredit any confessions the accused might have made. To present such a defense, the prisoners might need to identify the C.I.A. officers who had abused them. The defense teams also wanted to know how the C.I.A. detention program had been organized, so that they could file requests for documents. They hired a Washington, D.C., public-interest investigations firm run by John Sifton, a human-rights researcher who is now with Human Rights Watch as the advocacy director for Asia.

Sifton knew many of the Washington journalists who had been reporting on the C.I.A. interrogation program; he sometimes swapped information with them. In early January of 2009, he submitted to Guantánamo defense lawyers a confidential twenty-eight-page memo that provided the names of eighty-one people he believed to be C.I.A. officers, contractors, and pilots. Some of the names had already been published in the press; others had not. Defense lawyers for Khalid Sheikh Mohammed used Sifton’s research to prepare a filing—submitted as a classified document under seal, so that the public could not access it—to a Guantánamo military court. This “motion to compel discovery” requested C.I.A. documents for the defense; the motion listed the names of C.I.A. officers Sifton had ferreted out.

The C.I.A., shocked that defense lawyers had so many names, filed a crimes report about the filing with the Justice Department on March 19th. Soon afterward, in the cells of Al Qaeda prisoners, Guantánamo guards found thirty-two pages of photographs of the C.I.A. officers. Sifton’s firm had assembled the photos, mainly by downloading from the Internet pictures of retired C.I.A. officers who had gone on television or spoken in public. In two cases, however, Sifton’s team had surreptitiously snapped pictures of retired officers in public places.

In 2010, Attorney General Eric Holder asked U.S. attorney Patrick Fitzgerald, who had handled the Valerie Plame affair, to take charge of the investigation…

Fitzgerald assembled a team of prosecutors and F.B.I. agents. For more than two years, they secretly investigated the A.C.L.U. and other defense lawyers working at Guantánamo on behalf of Al Qaeda detainees…

One focus of the Fitzgerald investigation was how the defense teams had acquired the names of C.I.A. officers working undercover…

Fitzgerald eventually interviewed Sifton and Joshua Dratel, a defense lawyer who helped lead the John Adams team, and concluded that the team had broken no laws. They had taken care not to overstep legal boundaries and had documented their decisions. They had decided not to take photos of any C.I.A. officers who still maintained covert status and whose names had never been made public. When they provided photos to prisoners at Guantánamo, they followed a double-blind protocol, so that neither the prisoners nor the individuals providing the pictures knew which ones showed real C.I.A. officers and which showed random look-alikes—the same procedure used in police lineups.

–Steve Coll, “The Spy Who Said Too Much,” The New Yorker, April 1, 2013

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