Thursday, April 10, 2008

LCDR Diaz discusses his case

In May of 2007, Lieutenant Commander Matthew Diaz, JAGC, USN, was convicted of 4 out of 5 charges arising from mailing a classified list of Guantanamo Bay detainees to a lawyer at the Center for Constitutional Rights while he was serving in the SJA's office at JTFGTMO in 2005.

LCDR Diaz recently received the 2008 Ridenhour Truth-Telling Prize, as discussed here.

This evening he was on NPR's All Things Considered discussing his case. Here's a link.


John O'Connor said...

Some hero.

Anonymous said...

How predictable, JOC. Let me guess, you were a prosecutor. Probably never deployed. Lots of drug hots, AWOLs and such. You snub your nose at defense attorneys, don't you? Admit think less of the defense bar.

John O'Connor said...

I do not snub my nose at defense counsel. They are assigned an advocate's role and I fully support their vigilant performance of that duty. I have supported defense counsel on this blog and elsewhere when attempts have been made to limit their vigorous defense of their clients (so long as it is within ethical bounds).

I do have a little bit of a bee in my bonnet about servicemembers who take it upon themselcves to disseminate classified materials. I'm funny like that.

Anonymous said...

Hmmm. Ethics and prohibitions against mailing classified material (especially when it comes to folks held for YEARS w/o any process). That seems like an interesting area of discussion. But, alas, according to JOC, it's all cut and dry.

1stLt Jonathan Kendrick said...

LCDR Diaz was court-martialed because he had no honor.

He had no code.

Old Luce said...

LCDR Diaz once had honor. Unfortunately, he made a terrible mistake. At least I hope he believes he made a terrible mistake. Either way, he is now an embarrasment to his family and the generations that will follow.

I find it hard to believe that anybody could be proud of him.

A good start to restoring his lost honor would be to renounce all that applaud his crimes.

Anonymous said...

Old Luce = JOC. Easy to sit back and referee these cut and dry issues ain't it? Especially from the perspective of ex-prosecutors who have never set foot out of the hostile environments of Pendleton and Lejeune (or the other service equivalents). Makes me LOL.

Anonymous said...

The story was not clear on how he got caught. Can CAAFlog bloggers explain?

There are two views here, legal and moral. Some comments conflate the two.

LCDR Diaz's actions nearly constituted civil disobedience and were almost heroic. The "no honor" comments are over-the-top. I have no moral problem with somebody committing most non-common law crimes or victimless crimes if they are willing to accept the consequences of their actions.

The problem here is that he posted the names anonymously. Too bad CAAFLog wasn't around then. He could have posted the names here!

In my book, to acquire hero status, he would have had to openly and notoriously disobey the order and disclose the classified names with a big "John Hancock" signature on the document.

The JAG Corps should permit, under limited circumstances, a resignation or transfer for ethical duress. Our client is the Government and the American people, not our immediate commander.

But to those who equate moral judgment and legal judgment, don't be such a tool.

John O'Connor said...

He was caught because the lawyer for the Center for Constitutional Rights received the package, didn't know what to do with it, asked a federal judge for direction and was directed to deliver the materials to a federal investigator. My understanding is that the feds were able to trace the envelope back to Diaz but I'm not exactly sure what about the envelope accomplished that.

Guert Gansevoort said...

My understanding is that the FBI found fingerprints on the letter. I have to agree with JOC, and before I died I was a member of the defense bar. If Mr. Diaz believed that the United States was unlawfully depriving the detainees of habeas corpus, he should have left active duty and challenged their detention in court like CCR and other groups have done. And there is a big difference between refusing to commit a crime like those that occurred at Song Mai and deciding that your client has in incorrect interpretation of the law and deciding to break federal law to change your client's behavior.

Jason Grover said...

Nicely said Guert.

Anonymous said...

Mr. Diaz's act of civil disobedience resulted in his sending classified information, secretly, in a Valentine's Day car that professed his love for a woman. He went to GTMO, like most other JAGC IA's as part of career progression. He went full well knowing what his responsibilities were in that environment, he signed nondisclosure agreements and knowingly revealed classified information. He had no purpose to do aso and the release of the information he provided had absolutely zero affect upon the detainees nor their "cases." I find no honor in what he knowingly did as it furthered no end except his own personal one.

Anonymous said...

I understand your law-and-order position and do not make light of it. I also have problems with what LCDR Diaz did. My post was not intended to justify criminality, but was merely intended to shoot down the trumpted-up ipse dixit argument that a criminal act is necessarily an immoral act. I can envision scenarios and hypotheticals where somebody may commit a criminal act to further justice. And I can envision alternative choices that LCDR Diaz could have made that, while still illegal, would have been far more honorable.

(Wasn't there a recent Supreme Court case involving government law where a prosecutor was fired for disobeying his hack boss's cover-up directives and a divided court backed up the perogatives of the hack boss? cite anybody?)

But your "he knew what he was getting into" argument is weak.

Of note, you also fail to identify any actual prejudice to the Government from what LCDR Diaz did. And I'm not talking about theoretical harm - but actual harm.

(How do you like that Gov't? Now the shoe is on the other foot. Identify the prejudice...)

Patriots and citizens: drunk driving in Florida is worse than sending names from Cuba.

Jason Grover said...

Last Anon,
Interesting comparison of crimes from a focus on effects or likelihood of negative effects (DUI v. mishandling classified information). Of course, we are discussing a specific case of mishandling classified information and a hypothetical case of DUI. For the comparison to work, we could use more facts. Was anybody else in the car? How drunk was the driver? It is hard to compare the likelihood of harm or prejudice as you say, without more information on the Florida DUI.

But there are other ways to compare the relative seriousness of crimes. One common way to make that comparison is to compare the mens rea. The requisite mental state of the drunk driver (making the decision while impaired, believing no harm will come of it, etc.) could be very different than the mens rea in this case (appears to be calculated, with lots of time for reflection). When comparing the mental states involved, one could reasonably suggest that mishandling classified information in this context illustrates a much higher level of culpability.

John O'Connor said...

Last Anon,

The case you're talking about is Garcetti v. Ceballos.

I don't really buy the "there's no prejudice argument." Uising your example, the guy who drives drunk but doesn't have an accident hasn't "hurt" anybody but we criminalize the act anyway because the conduct, if repeated, could hurt somebody, and we don't want the defendant to be making the decision about whether his drunk driving is okay because he thinks it unlikely that there will be an accident or anyone will be hurt.

Same with disseminating classified information. We criminalize it without a showing or prejudice because we don't want the defendants disseminating classified materials based on their own belief that it won't hurt anybody.

Anonymous said...

No...actually just saying, "Your argument is weak," does not, in fact, make it weak. Mr. Diaz knew exactly what he was doing. He went to GTMO long after the dust clouds of "fair tribunals" had settled and most in the legal community were, at the very least, looking with a very jaded eye at all things GTMO. So, Mr. Diaz was aware of what was required and expected. Your dismissive attitude is questionable. Why would the government need to show prejudice or actual harm? And, how do you know there wasn't? Perhaps the government chose not to use that harm in the court-martial. Back to you example those who drive drunk should only be punished if they hurt someone or property. If they are caught drunk driving w/o any injury (prejudice) they should be immediately released and perhaps given a Navy Achievement Medal. That is clear as that driver knew what the rules of the road were when he got a license and since he didn't cause any harm when he broke such a trivial rule that he should not be held accountable. Maybe you should look at the fact Mr. Diaz took information that he knew to be secret and turned it over to an unauthorized person. The potential for harm at that point was immeasurable.

Anonymous said...

The responses to my post are well-reasoned, but only Jason Grover seems to fully get my point...and I am convinced by his argument. JO'C gets it half-right, and I accept his point. Gov't Anonymous is too distracted masturbating to his poster of Dick Cheney.

I am NOT arguing, again, that disseminating classified information is not criminal! Both the drunk driver and the classified disseminator should be punished for their illegal conduct, regardless of actual harm.

My point is that I am just not particularly moved one way or the other by the purported immorality of his conduct.

It seems to me that 6 months in the brig was about the right a UA or drug pop. But moral outrage? I'll save it for another day.

JO'C and Gov't Anonymous want to conscript me into the moral condemnation chorus. OK, I'll hum along, but I won't sing the words.

The reason that Gov't Anonymous' argument about "he knew what he was getting into" is weak is 1) it is revisionist history, arguing that anything about the military tribunals was or is settled law is just silly; 2) the argument speculates about mens rea - a speculation that if attempted by a defense attorney would be ruthlessly shot down; 3) it is an intellectually lazy argument that casually and pre-emptively defuses all future ethical conundrums because almost all positions - lawyer or not - are "voluntary," hence making the future ethical choices both inevitable and foreseeable (the argument would make even B.F. Skinner blush); 4) he was at GTMO for a while before he saw the government's foot-dragging and non-compliance first hand.

Gov't Anonymous asserts that the potential for harm was immeasurable. I take it that what he actually means that the potential for harm was inarticulable...because he/she again fails to explain that potential. A harm alleviated less than a year later when the Gov't itself released those names.

Anonymous said...

Yes, I still remember the most effective argument is a direct attack upon the person you disagree with. And yes, I am government but not from the Department which you think. However:
1. The notion was about the view of commissions as a whole. And when Mr. Diaz went to GTMO all but the most conservative lawyers were critical of commissions. There is nothing revisionist about that. While not settled few agree it is a good approach to the problem and certainly there was no forward momentum in the process when Mr. Diaz went to GTMO. Therefore, he certainly went there knowing what he was getting into. You may call that "silly" but I disagree.
2. What is the speculation of mens rea? Would you posit he accidentally did what he did or that it was negligent? Or was, as he himself said, going to the exchange and buying a Valentine's Day card as the documents would fit inside a deliberate act? Was it, as Mr. Diaz said himself, an indication of mens rea that he believed a Valentine's Day card would escape scrutiny? Or would mens rea be circumstantial? He himself said he spent hours culling the documents and sizing them to fit inside the card.
3. You call it lazy and therefore it must be so. I will discount the fact that Mr. Diaz was not told to go to GTMO. Mr. Diaz had a very successful career prior to his IA. 95% of all IAs in the Navy JAGC are voluntary and he went, in his own words, because it was better than Iraq. So he certainly did go voluntarily.
4. He was at GTMO 6 months, the accusations of government foot dragging came long before Mr. Diaz ever went to GTMO so he knew about the problem before he arrived. Plus, he was not a part of the commissions process. He was the deputy SJA for the JTF, he was there in a capacity to advise the commander on the treatment of detainees. His tour length had scant little to do with it.
I found his actions to be morally unjustified in light of the harm it could have caused. Harm for with Mr. DIaz had no comprehension as he would not be exposed to that information in his capacity. You disagree and are not as concerned with the moral aspect of his actions. A perfectly legitimate position. But to call an argument lazy when it is not and to liken the presenter as someone masturbating to a picture of the Vice President is 1) weird 2) sophmoric. The release of names was an act that was done after the genie had left the bottle and was certainly a decision left to Mr. Diaz to make.