Susan Lindauer: Secret Charges and The Patriot Act

Tuesday, 10 March 2009, 5:12 pm
Article: Michael Collins

'Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is to tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in any country." Herman Goering, Interview at Nuremburg Trials, April 14, 1946

"The Patriot Act was used against me in total contradiction to its stated purpose. Or perhaps it was the most logical use of the law, since it establishes a legal framework to crush free thinking and interrupt individual questioning of the government. It is the beginning of all dictatorship in America." Susan Lindauer, March 9, 2009

In March, 2004 Susan Lindauer was arrested for allegedly acting as an "unregistered agent" for prewar Iraq. She challenged the government's assertion and sought the right to prove at Trial that she'd been a United States intelligence asset covering Iraq and Libya from the early 1990's through 2003 (see articles).

In an unprecedented judicial ploy that lasted five years, federal prosecutors blocked Ms. Lindauer's rights to trial or any other sort of evidentiary hearings that would test her story. For 11 months, she was confined at Carswell federal prison on a Texas military base and at the Metropolitan Correctional Center in Manhattan, without a conviction or plea bargain.

During the indictment, she was conveniently gagged from sharing her direct knowledge of Iraqi Pre-War Intelligence, which she gained as a primary asset covering the Iraqi Embassy at the United Nations from August, 1996 onwards. She was also silenced from talking about the advance warning she gave the Office of Counter-Terrorism and U.S. Attorney General John Ashcroft's private staff in August, 2001, about possible airplane hijackings and a reprise of the 1993 World Trade Center attack.

But there was more than the Sixth Amendment's "right to a speedy trial" at stake.

Lindauer was one of the first citizens charged under special judicial provisions of the Patriot Act. The exceedingly complex legislation, emerged from the desk of John Yoo just days after the 9/11 attack. It passed the House 357 to 66 and the Senate 98 to 1. The Patriot Act eviscerated long standing Constitutional protections. It fundamentally altered how trials are conducted whenever provisions of the act are invoked in a court of law.

Lindauer's indictment was the one of the first test drives of the Patriot Act for the Bush-Cheney Department of Justice. Her nightmare officially ended five days before the Obama Inauguration, when the prosecution dropped the case "in the interests of justice."

In the current interviews, Susan Lindauer explains how the Patriot Act was used to quash her most fundamental rights of due process, which would otherwise have empowered her to repudiate the indictment and protect her reputation.

United States Department of Justice Criminal Resource Manual (Classified Information Procedures Act and FISA) Summary and original source

Secret Evidence is Slowly Eroding the Adversary System: CIPA and FISA in the Courts. Ellen Yaroshefsky, Benjamin N. Cardozo School of Law Summary and original source

Susan Lindauer Interviews by Michael Collins

Michael Collins: Not many people know that you were arrested under provisions of the Patriot Act. You were one of the fist U.S. citizens to experience the brutality of this legislation. How did it shape your case and treatment in the Courts?

Susan Lindauer: That's right. Along with Jose Padilla, I will go down in history as one of the first and only non-Arab Americans ever indicted on the Patriot Act during the Bush Administration.

I believe that my case demonstrates why the Patriot Act should be repealed immediately to safeguard our country and our freedom.

I have always opposed war and advocated diplomacy to solve conflicts. The indictment accused me of "acting as an unregistered Iraqi Agent," on the grounds that I delivered a letter forecasting the failure of the Occupation to my cousin, Andy Card, Chief of Staff to President George Bush. That's what used to be known as Freedom of Speech. The letter was not hostile or threatening. In fact, it proved tragically accurate. That did not matter to the Justice Department. Vocalizing opposition to Bush policy was treasonous. End of discussion.

Collins: What happened when you got to court?

Lindauer: Once I got to Court, I discovered that the indictment also contained two "secret charges," gratis of the Patriot Act. My attorney and I were given the dates for the two allegations, saying that I attended meetings with Iraqi officials in October, 1999 and October, 2001, but nothing more to explain what I had allegedly done wrong.

There was nothing unusual about the fact that those meetings had occurred. I visited the Iraqi Embassy at the United Nations about every three weeks for 7 years. My handlers were fully informed, which explains how the government could have been tracking the dates in the first place. They got the dates from me.

"a. On or about October 14, 1999, Susan Lindauer -- met with an officer of the Iraq Intelligence Service (“IIS”) in Manhattan.

"c. In or about October 2001, SUSAN LINDAUER -- accepted a task given to her in Manhattan by an officer of the IIS." USA v. Lindauer. S2 03 Cr. 807 (MBM)

No, the government was claiming that something unusual took place during those specific meetings. Under the Patriot Act, the Prosecution was not required to tell us what those offensive actions were. Nor was the Court allowed to tell us what type of laws might have been violated by those actions.

We were only told that conviction on either of the "secret charges" would get me five years in federal prison.

Collins: Please help readers understand more about "secret evidence." Were you and your lawyer denied access to evidence, because it was considered "secret" or "classified"? How did this work under the Patriot Act?

Lindauer: It's unbelievable, isn't it? As if "secret charges" were not terrible enough, there was also "secret evidence" which could be applied to those "secret charges."

The Prosecution had the right to ask a jury to convict me of those two undisclosed charges without revealing a shred of evidence to support the charges whatsoever. The Patriot Act authorized the prosecutor to ask a jury to "take it on faith" that some unspecified evidence would prove that some unspecified law had been broken.

If a judge so instructed before deliberations, the jury could be required to ignore the lack of presentation of evidence in weighing whether to convict me. The Judge could simply instruct a jury that the Justice Department regarded the evidence as "sufficient" to constitute a crime and that would be "sufficient knowledge" for their review. That kind of instruction practically requires a jury to convict a defendant.

The fundamental question of "guilty beyond reasonable doubt" is shattered. To say the least, it drastically undercuts protections in the jury system of the United States.

Conversely, evidence that might exonerate me, and prove my innocence, could be considered "secret and classified" as well. My attorney and I could be prohibited from knowing of its existence or using it in my defense. Even if that evidence or witness statements tossed out the whole case, and saved me from years in prison, I would not be entitled to know of its existence or present it to the jury.

Collins: This sounds like Franz Kafka's "The Trial" combined with the Queen of Hearts in "Alice in Wonderland." How did you conceptualize your experience at the time?

Lindauer: The outstanding blog, Welcome Back to Pottersville published a headline that I loved: Franz Kafka, Meet Susan Lindauer.

Oh yes, I was floored. I know the Constitution. I cherish it, in fact. I could not believe such a thing would happen to somebody like me, with my education from Smith College and the London School of Economics, and all of my community resources. I mean, if the government could do this to somebody like me, what could they do to somebody who has nothing? It's a frightening thought.

Above all, I despised the Assistant US Attorney, Edward O'Callaghan, who prosecuted my case. Numerous times I correctly told the Court that the FBI had verified my story and Mr. O'Callaghan was falsifying his claims about the availability of witnesses to authenticate my story. He flat out lied about my identity and activities to a senior federal judge. I mean, come on. We interviewed those witnesses, too. We know what they told the FBI.

And so I kept challenging the Court that nobody had to take my word for anything. I challenged the Court to subpoena the witnesses and question them directly under oath. For FIVE YEARS, I told the Court that all questions could be cleared up in ten minutes, with a simple pre-trial evidentiary hearing.

(Part three of this interview focuses on that issue.)

Collins: Back to the "secrecy rules," How did those work in trial preparation?

Lindauer: Within the category of "secret evidence," the law pretends to establish a safeguard for defendants by allowing two levels of secrecy.

Under the main category of secrecy, both the attorney and defendant are prohibited from laying eyes on evidence or witness statements. The Prosecutor always retains the right to deny access on the grounds of national security.

A sub-section of the Patriot Act allows the defense attorney to petition the government for a security clearance in order to review some parts of the "secret evidence." In reality, the process drags out for many months, while most defendants languish in prison waiting for trial. (And because the case involves the Patriot Act, they're frequently detained in solitary confinement.) Getting clearance can take six months to a year, costing the Defense valuable time to review the evidence or plan a rebuttal.

A security clearance does not automatically guarantee access to evidence, however. Depending on their backgrounds, different attorneys qualify for different levels of security clearances. For example, an activist attorney with a history of pro bono cases involving the ACLU or something equally subversive, like Greenpeace, might qualify for a very low security clearance, because their career choices and previous cases might be perceived to threaten the State. So one attorney might have more or less access to secret evidence than another. But you can't know until the security clearance review is completed.

Hope is vain, however. That safeguard is mostly irrelevant and procedural.

To illustrate that point, in five years under indictment, I had two separate attorneys with very different levels of security clearances, including a former federal prosecutor, the outstanding Mr. Brian Shaughnessy of Washington, DC, who regularly handles the most high level and complicated security cases. Neither attorney was ever able to determine what those two "secret charges" were. Neither attorney ever saw the "secret evidence."

More disturbingly, the attorney is strictly prohibited from revealing any part of that "secret evidence" to the Defendant. The Defendant cannot see it or know about it, and therefore cannot provide an effective response to the attorney to rebut it. Thus, ironically, the Patriot Act handicaps the defendant's ability to assist in the preparation of their Defense strategy.

Thus, it renders the Defendant INCOMPETENT TO STAND TRIAL.

Ah, the plot thickens.

Collins: It does in a very major way. What actions could be so serious as to deny your constitutional rights? Did you ever figure out what those "secret charges" might have been? Surely you know what you were doing in October, 1999 and October, 2001.

Lindauer: Oh yeah. And I'll bet your readers think those accusations must be very serious! Wouldn't you think? I must have done something far too horrible for the government to whisper aloud! Wanna bet?

In five years, we could only guess about those two charges. We surmised that in October 1999, I was indicted for blocking the Iraqi Government in Baghdad from making financial campaign contributions to the George W. Bush Presidential Campaign.

That's right. With immediate assistance from my U.S. Intelligence contacts, I stopped Iraq from making illegal campaign contributions to the 2000 Bush Election campaign--at least through my channels.

We have speculated that perhaps Saddam gave money to the Bush Campaign in 2000 through somebody else and some other channel. And the Republicans don't want anybody to know about it. Perhaps I was indicted to stop the Democrats from investigating campaign contribution records.

Consider that Andy Card was warned of Iraq's attempts in two progress reports on March 1, 2001 and December 2, 2001. The Republican leadership that attacked me was very much aware that this question of illegal campaign contributions was hanging out there. And I was indicted for stopping it from happening.

Collins: What about the second "secret charge"?

That was allegedly in October, 2001. We're still in the dark on that one; however, we think it involves my efforts to collect health statistics from Baghdad regarding depleted uranium left behind by the United States in the first Gulf War.

Depleted Uranium has resulted in a spike in Iraqi birth defects and cancer rates from long-term exposure. They say Iraqi children suffer cancer "like the flu," it's so common.

Tragically, exposure to depleted uranium might seriously harm American soldiers and their future unborn children, too! I suspect it will become a major health risk for soldiers who return from repeated tours of duty in Iraq. When they start having families back home, we're going to hear about this.

That's probably all it took to categorize the documents as "secret evidence" and "secret charges." They didn't want my case to raise the profile of that health risk for Americans in Iraq. None of that health information was ever returned to me in discovery.

For knowing something so unpleasant about the government's responsibilities, the Justice Department actually wanted me to serve five years in prison. It's unbelievable.

Collins: It must have been terrifying. The government figuratively tied you to a chair and challenged you to a 15 round boxing match. Did you ever consider pleading guilty to stop the beating?

Lindauer: Never! I'm a helluva boxer myself, Mike! They must have been surprised to find I could go 15 rounds. I'm strong and tenacious to this day!

No, I had my entire legal strategy mapped out in the first couple of hours after my arrest. I could see mistakes in the indictment, and I quickly identified which witnesses and evidence would be necessary to repudiate the whole lot.

My witness list was outstanding. It included international attorneys from the Lockerbie Trial, former Congressional staffers, even a couple of international journalists. One of Scotland's finest Solicitors, Edward MacKechnie, who won acquittal for his Libyan client in the Lockerbie Trial, immediately promised to travel at his own expense to testify for me as to the identity and credentials of Dr. Richard Fuisz, my CIA handler. I have the emails to prove it. His participation was beyond dispute.

There was no question that I had an outstanding defense. What's more, I have outstanding bona fides to go with it. I took perverse satisfaction in knowing that once the jury received witness corroboration of my extensive credentials dealing with Libya and Iraq, Yemen, Egypt, Syria/Hezbollah and Malaysia for 9 years from 1993 to 2002, they would be appalled by the prosecution's arguments to convict me.

Any jury would recognize that I had legitimate reason for participating in the 9/11 investigation as a "first-responder," not to mention that I'm one of the few individuals who openly warned about 9/11 for several months before the attack. I still think a New York jury would have applauded me.

The public just didn't know who I was-- yet-- or the extensive work that put me on the cutting edge of anti-terrorism for so many years.

That would change with witness testimony at trial. It would not be boring.

Collins: What was your reaction to getting arrested in March, 2004?

I was disgusted and perversely amused. At my home, while FBI agents were handcuffing me, I asked what I was charged with. That's a natural question when FBI agents come pounding on your door.

They wouldn't tell me. That's the Patriot Act for you. The arresting FBI agent said that I could read the indictment when I got to Baltimore-- Not Washington D.C. or Greenbelt, Maryland, which are 15 minutes from my home. They processed me in Baltimore, a city that's 45 minutes away and out of the sphere of Washington media. All through the drive, the FBI agent only told me that I would be extradited to New York. I had no idea why I'd been arrested at all.

When I finally got to read the indictment, I was purple with outrage. After 9 years of hard work and devotion to Anti-Terrorism as an Asset for the U.S. government, I was now accused of acting as an "unregistered Iraqi agent" and "conspiracy with the Iraqi Intelligence Service." Oh My!

I told the arresting FBI agent, "This is bullshit. This is political. You want me out of the way so you can lie about Iraq and 9/11 during the (2004) election."

Collins: You were arrested in March 2004, when President Bush was locked in a tight race with John Kerry and appeared to be losing. Do you think presidential campaign politics was involved in your indictment?

Lindauer: There was never any question that it was a cheap, political indictment engineered by ruthless White House staff, including my own cousin, Andy Card, afraid of losing Bush's re-election.

A few weeks before my arrest, I contacted the offices of Senators Trent Lott and John McCain and asked to testify before the new blue-ribbon Presidential Commission on Iraqi Pre-War Intelligence. As part of that testimony, I would have detailed Iraq's efforts to cooperate with the 9/11 investigation, and, before 9/11, our threats to bomb Baghdad in April and May, 2001 if they failed to serve up any fragments of intelligence relating to a new conspiracy involving airplane hijackings. I, personally, bickered with Iraqi diplomats at the United Nations for several months seeking that information. Iraq had nothing to give us.

Under the circumstances, arresting me must have presented an irresistible temptation.

Collins: How so?

Lindauer: They saw that I would be sidelined in legal wrangling until after the November election. I would be gagged from telling the full and accurate story of Iraqi Pre-War Intelligence and the government's advance warnings of a 9/11 style attack. This gave Republicans a significant advantage over the Democrats, shielding them from criticism during their campaigns.

After November, the charges against me would be declared bogus, and the case would be dismissed for lack of merit. I would ultimately win, whereas American voters would have lost an opportunity to make informed decisions about which candidates to support. They would be flying blind just the way politicians wanted.

Collins: What was some of the most devastating information that you would have shared?

Lindauer: Imagine if American voters had known that the 9/11 strike was not a surprise to U.S. Intelligence! Would it have changed any votes if Americans had known the truth? That throughout the summer of 2001, there were extensive discussions about possible airplane hijackings and a reprise of the 1993 World Trade Center attack, specifically?

In August 2001, we thought the attack was "imminent." At the instruction of my CIA handler, Dr. Richard Fuisz, I personally alerted the private staff of U.S. Attorney General John Ashcroft and the Office of Counter-Terrorism at the Justice Department about our fears, asking for their cooperation in issuing an emergency alert throughout all agencies for any fragment of intelligence or suspicious activity that might help us pre-empt a conspiracy to hijack and/or bomb airplanes.

Would any of that have made a difference in the voting booth? Would Americans still think the "War on Terror" was a success? That's the kind of wild card that campaign staff hate during a tight election.

Collins: Do you have any parting words on the Patriot Act?

Lindauer: It strikes me as ironic that the Patriot Act, which Congress passed after 9/11 to empower law enforcement to hunt down terror suspects, was first used to suppress and punish an American citizen who spent a life-time opposing violence in terrorism or war, and who gave advance warning about the 9/11 attack in specific detail.

I'm obviously a very dangerous woman! My indictment provides a classic example of a fearful incumbent -- a dictator -- arresting his political opponents on trumped up charges so that he can remove obstacles to staying in power, and intimidates others into silence when they would otherwise speak against him.

It's what you'd expect from Chile under Pinochet in the 1970s, the El Salvadoran juntas in the 1980s, Egypt today. It's Myanmar and Tibet. And it's what happened to me.

Collins: Part three of this interview explores the intense and chilling abuse Ms. Lindauer suffered when confined to the Carswell federal prison facility housed in the Carswell U.S. Air Force base near Ft. Worth Texas. At the same time, Lindauer will describe how federal law enforcement officials associated with her case manipulated proceedings and falsified reports about her life and activities.

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