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Context of 'January 18-25, 2002: White House National Security Counsel Cut out of Decision-Making Process Regarding Abandonment of Geneva Conventions'

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The German Reich Ministry of Justice issues a secret memo following a meeting of several Justice Ministry lawyers and public prosecutors with senior Gestapo officers. The participants discuss the fact that Germany has been on a war footing for years, and the leaders’ worry that the citizenry is riddled with sleeper cells of subversives. The solution: detaining and torturing subversives. It is unclear whether torture will be used to terrorize other subversives, to extract information, or produce confessions. German law enforcement officials are balky at applying “more rigorous interrogation” techniques. Though some judges seem unmoved by defendants appearing in court with obvious marks of torture upon their bodies, the law enforcement officers are bureaucrats in a system that has always respected the rule of law and the Hitler government was originally elected on a law-and-order platform. The memo is the product of the top officials in the Gestapo and Justice Ministry, and lays out detailed instructions as to when torture techniques can be applied, the specific equipment used in such interrogations, and how many times particular techniques could be used on certain categories of detainees. Perhaps most importantly, the memo promises immunity from prosecution to any German interrogator who follows the rules as laid down in the memo.
Specific Instructions - It reads in part: “At present, we thus have a situation which cannot continue: a deficient sense of what is right on the part of judicial officers; an undignified position for police officers, who try to help matters by foolish denials [that torture has taken place in court proceedings].… [I]nterrogations of this kind [torture] may be undertaken in cases where charges involve the immediate interests of the state.… chiefly treason and high treason. Representatives of the Gestapo expressed the opinion that a more rigorous interrogation could also be considered in cases of Jehovah’s Witnesses, explosives, and sabotage.… As a general principle, in more rigorous interrogations only blows with a club on the buttocks are permissible, up to 25 such blows. The number is to be determined in advance by the Gestapo.… Beginning with the tenth blow, a physician must be present. A standard club will be designated, to eliminate all irregularities.” Gestapo Headquarters in Berlin must give permission for more “rigorous interrogation[s],” the memo continues.
Drawing Parallels to Bush Administration Torture - The memo will be the subject of a 2009 article by Shayana Kadidal, the senior managing attorney of the Guantanamo project at the Center for Constitutional Rights. Kadidal will draw parallels between the Nazi torture authorization and similar legal justifications issued by the American government after the 9/11 attacks (see March 2, 2009 and April 21, 2009). Kadidal will write: “I realize that, as a matter of principle, there is a strong bias against making Nazi analogies to any events happening in our modern world.… But here we have: (1) a system set up to allow torture on certain specific individual detainees, (2) specifying standardized equipment for the torture (apparently down to the exact length of the club to be used), along with physician participation to ensure survival of the victim for the more several applications, (3) requiring prior approval of the use of torture from the central authorities in the justice department and intelligence agency in the capital, so as to ensure that (6) the local field officers actually carrying out the abuse are immune from prosecution.” [Huffington Post, 4/21/2009]

Entity Tags: Gestapo, Shayana Kadidal, German Reich Ministry of Justice

Timeline Tags: Torture of US Captives

1952: NSA Founded

The National Security Agency (NSA) is founded. It is the successor to the State Department’s “Black Chamber” and other military code-breaking and eavesdropping operations dating back to the earliest days of telegraph and telephone communications. It will eventually become the largest of all US intelligence agencies, with over 30,000 employees at its Fort Meade, Maryland, headquarters. It focuses on electronic surveillance, operating a large network of satellites and listening devices around the globe. More even than the CIA, the NSA is the most secretive of US intelligence organizations, [New York Times, 12/16/2005] The agency will remain little known by the general public until the release of the 1998 film Enemy of the State, which will portray the NSA as an evil “Big Brother” agency spying on Americans as a matter of course. [CNN, 3/31/2001] After it is disclosed during the 1970s that the NSA spied on political dissenters and civil rights protesters, the NSA will be restricted to operating strictly overseas, and will be prohibited from monitoring US citizens within US borders without special court orders. [New York Times, 12/16/2005]

Entity Tags: US Department of State, Central Intelligence Agency, George W. Bush, National Security Agency

Timeline Tags: Civil Liberties

The NSA, following up on its successful pilot program of satellite-based intelligence gathering called “Canyon” (see 1968), develops a much more sophisticated satellite surveillance program called “Rhyolite.” Rhyolite, later renamed “Aquacade,” is a breakthrough in the world of signal intelligence (sigint). Most importantly, it can monitor microwave transmissions, used extensively by the Soviet Union for its most secure transmissions. Its possibilities, says one insider, are “mind-blowing.” Britain’s own security agency, GCHQ, is a full party to Rhyolite/Aquacade. Former Army sigint officer Owen Lewis recalls in 1997, “When Rhyolite came in, the take was so enormous that there was no way of handling it. Years of development and billions of dollars then went into developing systems capable of handling it.” The NSA will pass much of the information it gathers to the GCHQ for transcription and analysis. Subsequently, the NSA will deploy new and even more sophisticated surveillance systems, code-named “Chalet” and “Vortex.” In doing so, it constructs numerous listening stations on friendly foreign soil, including the Menwith Hill facility that will later become a linchpin of the satellite surveillance program known as Echelon (see February 27, 2000). The new programs will revitalize the lapsed sigint alliance between the US, Britain, Canada, Australia, and New Zealand (see July 11, 2001). [Federation of American Scientists, 7/17/1997]

Entity Tags: National Security Agency, Echelon, Rhyolite, Chalet, Government Communications Headquarters, Owen Lewis, Canyon

Timeline Tags: Civil Liberties

Michael Barnes.Michael Barnes. [Source: Covington and Burling]Representative Michael Barnes (D-MD) is targeted by the NSA’s Echelon satellite surveillance program on orders from Reagan administration officials. Barnes, an outspoken opponent of Reagan’s Central American policies, had phone conversations with Nicaraguan officials intercepted and recorded, including one conversation between Barnes and the foreign minister of Nicaragua. Barnes learns of the surveillance after White House officials, apparently attempting to discredit Barnes, leaks transcripts of the taped conversations to reporters. CIA director William Casey shows Barnes a Nicaraguan embassy cable reporting a meeting between embassy staff and one of Barnes’s aides; Casey demands that Barnes fire the aide. Barnes refuses, noting that the aide had visited the embassy on legitimate business concerning international affairs. Barnes will say in 1995, “I was aware that NSA monitored international calls, that it was a standard part of intelligence gathering. But to use it for domestic political purposes is absolutely outrageous and probably illegal.” Former senator Dennis DeConcini (R-AZ) says he worries about the NSA spying on US citizens: “It has always worried me. What if that is used on American citizens? It is chilling. Are they listening to my private conversations on my telephone?” [Patrick S. Poole, 8/15/2000]

Entity Tags: Michael D. Barnes, Reagan administration, William Casey, National Security Agency, Dennis DeConcini, Echelon

Timeline Tags: Civil Liberties

President Ronald Reagan issues Executive Order 12333, which directs the US intelligence community to provide foreign intelligence data to the White House. The order reads in part, “[A]gencies are not authorized to use such techniques as electronic surveillance, unconsented physical searches, mail surveillance, physical surveillance, or monitoring devices unless they are in accordance with procedures established by the head of the agency concerned and approved by the Attorney General.” It establishes rules of conduct for the intelligence agencies, and mandates a certain level of Congressional oversight. [Executive Order 12333 -- United States intelligence activities, 4/5/2007] It also establishes the basis for what are later called “National Security Letters.” These NSLs, originally envisioned for use to compile information in hunts for foreign criminals and suspected terrorists, will later be used by the administration of George W. Bush to order US booksellers, librarians, employers, Internet providers, and others to turn over records and information they compile on US citizens, with strict adjuncts against allowing those targeted for surveillance to know about the NSLs and with virtually no government oversight (see October 25, 2005). [Washington Post, 11/6/2005] It does not, as some have later asserted, directly prohibit the assassination of targeted foreign subjects—i.e. terrorist suspects and even foreign leaders—though it does restrict the use of assassination by US government operatives to certain very restricted circumstances centered around critical aspects of national security. [Parks, 11/2/1989 pdf file]

Entity Tags: Ronald Reagan, George W. Bush, National Security Letters, Bush administration (43)

Timeline Tags: Civil Liberties

Margaret Thatcher.Margaret Thatcher. [Source: UK Parliament]British prime minister Margaret Thatcher, displeased with two of her ministers for challenging her on unidentified policy matters, requests that they be placed under electronic surveillance. Because it is illegal for British intelligence to monitor its own citizens, the operation is handed over to the CSE, Canada’s national security agency. [Daily Iowan, 1/19/2006; Janczewski and Colarik, 2007, pp. 454] According to former CSE spy Mike Frost, who will publicly discuss the matter in 2000, Thatcher “had two ministers that she said ‘…weren’t onside.’” Thatcher, says Frost, “wanted to find out, not what these ministers were saying, but what they were thinking. So my boss, as a matter of fact, went to McDonald House in London and did intercept traffic from these two ministers.” Why CSE and not British intelligence? Because for the British to monitor their own government members would be illegal—so instead, they farm out such activities to their allies. “The British Parliament now have total deniability,” Frost says. “They didn’t do anything. They know nothing about it. Of course they didn’t do anything; we did it for them.” Frost will say there is no way to pin any blame or criminal charges on anyone in the British government. “The British Parliament now has total deniability,” Frost says. “They didn’t do anything… we did it for them.” [ZDNet, 2/25/2000; CBS News, 2/27/2000]

Entity Tags: Communications Security Establishment, Mike Frost, Government Communications Headquarters, Margaret Thatcher

Timeline Tags: Civil Liberties

Strom Thurmond.Strom Thurmond. [Source: US Government]Former Lockheed software manager Margaret Newsham, who worked at the Menwith Hill facility of the NSA’s Echelon satellite surveillance operation in 1979, says she heard a real-time phone intercept of conversations involving senator Strom Thurmond (R-SC). She was shocked, she recalls, because she thought only foreign communications were being monitored. Newsham, who was fired from Lockheed after she filed a whistleblower lawsuit alleging fraud and waste, tells the chairman of the House Intelligence Committee, Louis Stokes (D-OH), of the overheard conversations. In July, Capital Hill staffers will leak the story to the Cleveland Plain Dealer. Thurmond says he doesn’t believe Newsham’s story, but his office admits that it has previously received reports that Thurmond had been a target of NSA surveillance. Thurmond will decline to press for an investigation, and the reason for the surveillance has never been revealed. [CBS News, 2/27/2000; Patrick S. Poole, 8/15/2000]

Entity Tags: Strom Thurmond, National Security Agency, House Intelligence Committee, Louis Stokes, Echelon, Cleveland Plain Dealer, Lockheed Martin Corporation, Margaret Newsham

Timeline Tags: Civil Liberties

Law professor John Yoo writes a lengthy essay for the California Law Review entitled “The Continuation of Politics by Other Means: The Original Understanding of War Powers,” in which he argues that the Founding Fathers intended to empower presidents to launch wars without Congressional permission. Yoo has clerked for conservative judge Laurence Silberman and equally conservative Supreme Court Justice Clarence Thomas, and served for a year as counsel to then-Senate Judiciary Committee Chairman Orrin Hatch (R-UT). He has become a regular speaker at Federalist Society events, the informal but influential group of conservative lawyers, judges, and legal scholars who will come to have so much influence in the Bush administration. You argues that for generations, Constitutional scholars have misread the Constitution: the Founders actually supported, not repudiated, the British model of executive power that gave the king the sole power of declaring war and committing forces to battle. The Constitution’s granting of the legislature—Congress—the power to “declare war” is merely, Yoo writes, a reference to the ceremonial role of deciding whether to proclaim the existence of a conflict as a diplomatic detail. The Founders always intended the executive branch to actually declare and commence war, he writes. Most other Constitutional scholars will dismiss Yoo’s arguments, citing notes from the Constitutional Convention that show the Founders clearly intended Congress, not the president, to decide whether to commit the country to war. One of those Founders, James Madison, wrote in 1795 that giving a president the unilateral ability to declare war “would have struck, not only at the fabric of the Constitution, but at the foundation of all well organized and well checked governments. The separation of the power of declaring war from that of conducting it, is wisely contrived to exclude the danger of its being declared for the sake of its being conducted.” [Savage, 2007, pp. 80-81] Yoo will go on to join the Bush administration’s Office of Legal Counsel, and write numerous torture memos (see October 4, 2001, November 6-10, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24-26, 2002, March 13, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and March 14, 2003) and opinions expanding the power of the president (see September 21, 2001, September 25, 2001, September 25, 2001, October 23, 2001, October 23, 2001, and June 27, 2002).

Entity Tags: Federalist Society, John C. Yoo

Timeline Tags: Civil Liberties

A lieutenant general meets with Qwest CEO Joe Nacchio and Dean Wandry, who heads Qwest’s government business unit. According to documents filed in 2006 by Nacchio concerning his trial on insider trading charges (see October 12, 2007), the general “told Mr. Wandry that he ran the largest telecom operation in the world, he had looked at Qwest’s network, and he wanted to use it for government purposes.” The general in question could be NSA Director Kenneth Minihan, who will be replaced in 1999 by another lieutenant general, Michael Hayden, but neither Minihan nor Hayden will comment on the allegation. Many former intelligence officials will say that it is likely Minihan who met with Nacchio and Wandry. Nacchio’s court documents indicate that he and Wandry agree to work with the general. Nacchio is not allowed to announce the contract publicly, but according to the court documents, he “understood at the time this was the beginning of a relationship which had enormous potential for future work. This proves increasingly true as time went on.” By 1999 Qwest is working extensively with the NSA. Minihan is particularly concerned about the potential of “cyberwarfare” by foreign governments, terrorist organizations, drug cartels, and organized crime, a prospect which he felt the NSA is unprepared. He particularly worries about Russia and China; in June 1998, he will testify are training personnel in potential cyber-attacks. “These opportunists, enabled by the explosion of technology and the availability of inexpensive, secure means of communication, pose a significant threat to the interests of the United States and its allies,” Minihan will state. In 2007, a former senior NSA official will say that the agency felt those groups knew US privacy laws all too well and were capable of using those laws against the NSA and other intelligence agencies. He will say, “There was such a nuanced understanding of how to tie us in knots and use American law against us, that there were certainly pockets of people saying, ‘We’ve got to be assertive; we’ve got to be more aggressive on this.’” Hayden, Minihan’s successor, will be particularly willing to push agency operations to the edge of legality. After 9/11, Hayden will say, “We’re pretty aggressive within the law. As a professional, I’m troubled if I’m not using the full authority allowed by law.” [National Journal, 11/2/2007] The NSA will approach Qwest will a similar offer in the months before 9/11 (see February 2001).

Entity Tags: Michael Hayden, Dean Wandry, Kenneth Minihan, National Security Agency, Joe Nacchio, Qwest

Timeline Tags: Civil Liberties

Princess Diana at a mine field in Angola in 1997.Princess Diana at a mine field in Angola in 1997. [Source: Tim Graham / Corbis]The NSA admits that US intelligence agencies possess 1,056 pages of classified information regarding Britain’s Princess Diana. British tabloids portray the documents as rife with salacious information on Diana’s “most intimate love secrets” about her relationship with Egyptian billionaire Dodi al-Fayed, but the actual documentation may not be so lurid. The NSA recently denied a Freedom of Information request from the Internet news service APB Online about information it has collected on Diana, who died in a tragic car accident in 1997. (It is unclear whether US intelligence has any unreleased information about the circumstances of Diana’s death. [APB Online, 11/30/1998; Washington Post, 12/12/1998] The NSA has denied monitoring Diana on the night of her death, an allegation raised by The Observer in 2006.) [MSNBC, 12/11/2006] In the two-page letter denying the request, the NSA admits to possessing a “Diana file,” but refuses to divulge what is in that file. A US intelligence official says the information is made up of conversations between other people who mentioned Diana; the references to Diana in those intercepted conversations are “incidental.” The official says Diana was never a particular target of the NSA’s Echelon surveillance program. However, the NSA has classified 124 pages of the “Diana documents” as top secret “because their disclosure could reasonably be expected to cause exceptionally grave damage to the national security.” According to a recent report by the European Parliament, the NSA routinely monitors virtually “all e-mail, telephone and fax communications… within Europe” (see July 11, 2001). Intelligence expert Steven Aftergood of the Federation of American Scientists says “the US and our allies promiscuously collect electronic communications around the world. Whether the descriptions of Echelon are accurate or not, that much is definitely true.” Some believe that lurid snippets of information leaked to the British press regarding Diana’s affair with Fayed, and her ambivalent relationship with Prince Charles, may have come from Echelon wiretaps and surveillance. Another FAS scientist, John Pike, says the NSA and other US intelligence agencies may have been monitoring Diana to protect her from terrorist attacks. Pike says it is also possible she may have been monitored because of her involvement in banning land mines, a position opposed by the Pentagon. [APB Online, 11/30/1998; Washington Post, 12/12/1998] Former NSA official Wayne Madsen will say in 2000, “[W]hen NSA extends the big drift net out there, it’s possible that they’re picking up more than just her conversations concerning land mines. What they do with that intelligence, who knows?” [CBS News, 2/27/2000] In August 1999, the NSA will deny another Freedom of Information request about its “Diana file” from the British newspaper The Guardian. [Guardian, 8/6/1999]

Entity Tags: Steven Aftergood, Prince Charles, The Guardian, John Pike, Dodi al-Fayed, Echelon, Federation of American Scientists (FAS), National Security Agency, Princess Diana

Timeline Tags: Civil Liberties

NSA servers used to collect and sift data.NSA servers used to collect and sift data. [Source: FrancesFarmersRevenge.com]The National Security Agency (see 1952) begins building a massive data-mining system, code-named “Trailblazer,” that is intended to sift through reams of digital communications intercepts and find nuggets of information relevant to national security. The program’s task is huge—to sort through the 2 million bits of data the NSA collects every hour—and one made even more complex by the relatively new types of wireless, Internet, cell phone, and instant messaging communications now becoming ever more commonplace. Trailblazer is strongly embraced by General Michael Hayden, who became the NSA’s director in March 1999. Hayden recognizes from the outset that the NSA is years behind the technological curve, and casts Trailblazer as the future of the agency’s intelligence gathering and sorting. In November 1999, Hayden makes Trailblazer the centerpiece of his “100 Days of Change,” his plan to transform the agency into a leaner, more efficient organization, fast-tracking the program to vault it ahead of other initiatives. “It was going to structure us to handle the digital revolution,” a former intelligence official will recall. But from the outset the program has problems: a meeting between NSA and other government officials in December 1999 is unpromising, and, according to one government oversight official, the program “kicked off with not a real great definition of what it was trying to achieve.” Program managers fail to define standard data formats to allow for the proper sorting of information. After six years, $1.2 billion in expenditures, and endless man-hours of work, the utterly failed program will be recognized as the “biggest boondoggle… in the intelligence community” (see January 2006). [Baltimore Sun, 1/29/2006]

Entity Tags: Trailblazer, National Security Agency, Michael Hayden

Timeline Tags: Civil Liberties

Mike Frost.Mike Frost. [Source: NineMSN]One of the few commercial media reports about Echelon, the NSA’s global surveillance network (see April 4, 2001), appears on CBS’s 60 Minutes. The report is disturbing in its portrayal of Echelon as a surveillance system capable of, in host Steve Kroft’s words, capturing “virtually every electronic conversation around the world.” Kroft continues, “[V]irtually every signal radiated across the electromagnetic spectrum is being collected and analyzed,” including land line and cell phone signals, ATM transactions, fax machines,public and private radio broadcasts, even baby monitors. Mike Frost, a former intelligence officer for the CSE, the Canadian equivalent of the National Security Agency which often works closely with the NSA, says, “The entire world, the whole planet” is being surveilled. “Echelon covers everything that’s radiated worldwide at any given instant.… Every square inch is covered.” Listening stations around the world transmit their data to the NSA’s headquarters at Fort Meade, Maryland, where, as Kroft says, “acres of supercomputers scan millions of transmissions word by word, looking for key phrases and, some say, specific voices that may be of major significance.” Frost adds, “Everything is looked at. The entire take is looked at. And the computer sorts out what it is told to sort out, be it, say, by key words such as ‘bomb’ or ‘terrorist’ or ‘blow up,’ to telephone numbers or—or a person’s name. And people are getting caught, and—and that’s great.” Echelon is so secret that even its successes are not publicly documented, though it is believed that, among other successes, it helped capture international terrorist “Carlos the Jackal,” and helped identify two Libyans accused of planting a bomb on PanAm Flight 103 [CBS News, 2/27/2000] which exploded over Lockerbie, Scotland in 1988, killing 270 people. [Washington Post, 12/22/1988] “I say, never over-exaggerate the capacity of a system such as Echelon,” Frost noted in a 1999 interview with the Australian press. “Never ever over-exaggerate the power that these organizations have to abuse a system such as Echelon. Don’t think it can’t happen in Australia. Don’t think it can’t happen in Canada, because it does.” [NineMSN, 5/23/1999]
Monitoring Legal Conversations - As successful as Echelon has been in capturing terrorists, international drug dealers, and various criminals, it has raised serious concerns for its capability of monitoring ordinary, innocent civilians. Frost says that such monitoring happens every day: “Not only possible, not only probable, but factual. While I was at CSE, a classic example: A lady had been to a school play the night before, and her son was in the school play and she thought he did a—a lousy job. Next morning, she was talking on the telephone to her friend, and she said to her friend something like this, ‘Oh, Danny really bombed last night,’ just like that. The computer spit that conversation out. The analyst that was looking at it was not too sure about what the conversation w—was referring to, so erring on the side of caution, he listed that lady and her phone number in the database as a possible terrorist.” Though the NSA has a long and checkered history of spying on American citizens, including extensive monitoring of antiwar and civil rights protesters during the 1970s, the agency refuses to provide any information about its activities—not to the public and not even to Congress. Congressman Bob Barr (R-GA) has for years pressed for more information about the program, which he recently said “engages in the interception of literally millions of communications involving United States citizens.” Even the chairman of the House Intelligence Committee, Porter Goss (R-FL) had trouble getting information when he requested it last year. At the time, Goss said, “[T]here was some information about procedures in how the NSA people would employ some safeguards, and I wanted to see all the correspondence on that to make sure that those safeguards were being completely honored. At that point, one of the counsels of the NSA said, ‘Well, we don’t think we need to share this information with the Oversight Committee.’ And we said, ‘Well, we’re sorry about that. We do have the oversight, and you will share the information with us,’ and they did.” Goss had to threaten to cut the NSA’s budget before the agency would share even limited information with him. When asked how he can be sure the NSA isn’t listening in on ordinary citizens’ communications, Goss merely says, “We do have methods for that, and I am relatively sure that those procedures are working very well.”
Princess Diana, Human Rights Organizations Monitored - Evidence presented in the broadcast also suggests the NSA was monitoring Princess Diana (see November 30, 1998), as well as Amnesty International, Greenpeace, and other groups (see February 27, 2000). [CBS News, 2/27/2000]
British Ministers Monitored - Frost cites an instance where then-Prime Minister Margaret Thatcher monitored two of her own ministers (see 1983).
Americans Monitored - Former NSA contractor Margaret Newsham recalls hearing a monitored conversation featuring then-Senator Strom Thurmond (see April, 1988). Frost is not surprised. “Oh, of course it goes on,” he says. “Been going on for years. Of course it goes on.” Kroft asks, “You mean the National Security Agency spying on politicians in… in the United States?” Frost replies, “Sounds ludicrous, doesn’t it? Sounds like the world of fiction. It’s not; not the world of fiction. That’s the way it works. I’ve been there. I was trained by you guys” (see 1980s). Goss seems less concerned. He says that it is “[c]ertainly possible that something like that could happen. The question is: What happened next?… It is certainly possible that somebody overheard me in a conversation. I have just been in Europe. I have been talking to people on a telephone and elsewhere. So it’s very possible somebody could have heard me. But the question is: What do they do about it? I mean, I cannot stop the dust in the ether; it’s there. But what I can make sure is that it’s not abused—the capability’s not abused, and that’s what we do.”
Used for Corporate Advantage - In 2001, the European Parliament released a report listing many of Echelon’s surveillance stations around the world and detailing their capabilities (see July 11, 2001). Kroft notes, “The report says Echelon is not just being used to track spies and terrorists. It claims the United States is using it for corporate and industrial espionage as well, gathering sensitive information on European corporations, then turning it over to American competitors so they can gain an economic advantage.”
Encryption Effective? - European governments and corporations are encrypting more and more of their phone, fax, and e-mail transmissions to keep Echelon from listening in. In response, the US government is pressuring the Europeans to give US law enforcement and intelligence agencies software keys so that they can unlock the code in matters of national security. Parliament member Glyn Ford is not opposed to the idea in principle: “[I]f we are not assured that that is n—not going to be abused, then I’m afraid we may well take the view, ‘Sorry, no.’ In [Britain], it’s traditional for people to leave a key under the doormat if they want the neighbors to come in and—and do something in their house. Well, we’re neighbors, and we’re not going to leave the electronic key under the doormat if you’re going to come in and steal the family silver.” The NSA, CSE, and even Echelon are necessary evils, Ford acknowledges, but, “My concern is no accountability and nothing—no safety net in place for the innocent people that fall through the cracks. That’s my concern.” [CBS News, 2/27/2000]

Entity Tags: Greenpeace, Wayne Madsen, Glyn Ford, Echelon, Communications Security Establishment, Central Intelligence Agency, Amnesty International, Strom Thurmond, Electronic Privacy Information Center, Steve Kroft, Princess Diana, Mike Frost, Margaret Thatcher, Margaret Newsham, National Security Agency, Robert “Bob” Barr, House Intelligence Committee, Porter J. Goss, Ilich Ramírez Sanchez

Timeline Tags: Civil Liberties

John Yoo, an associate law professor at the University of California at Berkeley, makes a presentation at a Cato Institute seminar on executive power. Yoo, who will go on to become one of the Bush administration’s primary advocates of unchecked executive power (see March 1996), accuses the Clinton administration of upending the Constitution to give the executive branch unwarranted authority (see March 24 - Mid-June, 1999). “[T]he Clinton administration has undermined the balance of powers that exist in foreign affairs, and [they] have undermined principles of democratic accountability that executive branches have agreed upon well to the Nixon administration,” he says. Regarding the Clinton administration’s stretched interpretation of the Anti-Ballistic Missile Treaty (see June 2000), Yoo says that the Clinton “legal arguments are so outrageous, they’re so incredible, that they actually show, I think, a disrespect for the idea of law, by showing how utterly manipulatible it is.” [Savage, 2007, pp. 67]

Entity Tags: Bush administration (43), John C. Yoo, Nixon administration, Clinton administration

Timeline Tags: Civil Liberties

The NSA completes a report for the incoming Bush administration entitled “Transition 2000” that tells how the NSA is planning to improve its intelligence gathering. More importantly, it tells incoming White House officials that in the process of improving its intelligence gathering, some US citizens will inevitably be targeted for surveillance, though, according to a former NSA official, analysts were supposed to “delete the name of the” citizen being surveilled. Such inadvertent surveillance of US citizens took place even during the Clinton administration, says that former official, but the citizens’ names were always deleted from the transcripts of the communications intercepts. The law expressly prohibits the NSA from spying on US citizens, US corporations, or even permanent US residents. (With the permission of the Foreign Intelligence Surveillance Court (FISC), the NSA can spy on diplomats and foreigners inside US borders.) An NSA official will tell the Boston Globe in October 2001, “If, in the course of surveillance, NSA analysts learn that it involves a US citizen or company, they are dumping that information right then and there.” However, once President Bush takes office in January 2001, that practice will undergo a radical change (see Spring 2001). [Truthout (.org), 1/17/2006] In the same transition report, agency officials say that the NSA must become a “powerful, permanent presence” on the commercial communications networks, a goal they admit will raise legal and privacy issues. [New York Times, 12/16/2007]

Entity Tags: Bush administration (43), National Security Agency

Timeline Tags: Civil Liberties

The Bush administration’s legal team meets for the first time. The head of the group, White House counsel Alberto Gonzales, is well known as a staunchly loyal aide to President Bush, and has long ensured that Bush receives the legal opinions he wants. While Bush was governor of Texas, Gonzales routinely prepared briefings for him on death row prisoners appealing for clemency, briefings that usually left out mitigating circumstances that might have led Bush to consider waiving the death penalty. Bush was pleased at Gonzales’s approach, and the White House legal team will quickly come to understand that that same approach will be used in its legal work. One young team member is Bradford Berenson, who made his reputation working with the Bush-Cheney campaign in its fight to win the disputed 2000 presidential election. Berenson is one of eight White House associate counsels. Gonzales tells the gathered counsels and legal staff that most of their work will be in handling the everyday legal tasks generated by the White House, reviewing speeches and letters, making judgments on ethical issues, and the like. But, according to Gonzales, Bush has personally instructed him to give his team two missions as their top priority.
Appoint Conservatives to Judiciary Positions - One is to find as many conservatives as they can to fill the numerous vacancies on the federal courts, vacancies left unfilled because of Senate Republicans’ refusal to schedule hearings for Clinton nominees. Now, Gonzales tells the legal team, they are to find as many conservative “judicial restraint”-minded lawyers as there are judgeships to be filled, and to get them confirmed as quickly as possible. This is an unsurprising mission, as most in the room expect the Republicans to lose control of Congress in 2002—as, historically, most parties who control the executive branch do in midterm elections—and therefore have only a limited time in which to get nominees named, vetted, and confirmed by friendly Congressional Republicans.
Find Ways to Expand Presidential Power - Gonzales’s second mission is more puzzling. The lawyers are to constantly look for ways to expand presidential power, he tells them. Bush has told his senior counsel that under previous administrations, the power of the presidency has eroded dramatically. (Ironically, some of the losses of executive power came due to the Republican-led investigation of former President Clinton’s involvement in Whitewater and his affair with a White House intern, when Secret Service bodyguards and White House attorneys were compelled to testify about their communications with the president, and Congressional Republicans issued subpoenas and demanded information from the White House.) It is time to turn back the tide, Gonzales tells his team, and not only regain lost ground, but expand presidential power whenever the opportunity presents itself. Berenson will later recall Gonzales telling them that they are “to make sure that [Bush] left the presidency in better shape than he found it.” Berenson will later remark: “Well before 9/11, it was a central part of the administration’s overall institutional agenda to strengthen the presidency as a whole. In January 2001, the Clinton scandals and the resulting impeachment were very much in the forefront of everyone’s mind. Nobody at that point was thinking about terrorism or the national security side of the house.” Berenson does not learn until much later that much of the direction they have received has come, not from President Bush, but from Vice President Cheney and his legal staff, particularly his chief counsel, David Addington. [Savage, 2007, pp. 70-75]

Entity Tags: David S. Addington, Alberto R. Gonzales, Bush administration (43), Richard (“Dick”) Cheney, Bradford Berenson, George W. Bush

Timeline Tags: Civil Liberties

The NSA asks Qwest, a major US telecommunications firm and a cutting-edge provider of high-tech wireless and Internet connectivity, to reveal information about its customers and their phone calls. Qwest’s CEO, Joe Nacchio, refuses after meeting with NSA officials and deciding that the program is illegal without court orders (see February 27, 2001). The NSA refuses to seek court authorization for its wiretaps and electronic surveillance. The NSA will renew its request from Qwest after the 9/11 attacks, and will also ask the firm to help it track suspected terrorists. Other telecommunications firms such as Verizon, AT&T, and BellSouth, will comply with the NSA’s requests (see February 2001 and Beyond).
Fears of a 'Digital Pearl Harbor' - According to a former White House official, the NSA’s primary purpose before 9/11 is to watch for computer hackers and foreign-government agents trying to hack into the government’s computer information systems, particularly those within the Defense Department. Government officials fear a “digital Pearl Harbor” if hackers were ever to seize control of those systems or other key US infrastructures. The former official will say in 2007 that the NSA’s proposal to Qwest is, “Can you build a private version of Echelon and tell us what you see?” Echelon is the NSA’s enormous signals intelligence (SIGINT) network used by the agency and its counterparts in Australia, Canada, New Zealand, and Britain. Qwest is constructing a high-speed network for phone and Internet traffic, and the NSA wants Qwest to keep records of its customers’ transactions for it. The NSA, another source will say, wants to analyze call, e-mail, and other transmissions’ traffic patters for signs of suspicious activity. The White House official will say that telecom firms such as Qwest “have an enormous amount of intelligence-gathering” capability. They don’t have to target individual customers to “look for wacky behavior,” or “groups communicating with each other in strange patterns.” Such information could augment intelligence that the NSA and other agencies were gathering from other sources, and enable the NSA to collect the information it wants without violating laws prohibiting it and other intelligence agencies from directly gathering data on US citizens.
Ill Will from NSA - Nacchio’s refusal to go along with the NSA’s request garners it some ill will among the US intelligence community, the former White House official will say. Nacchio will contend that because of his refusal, the NSA denied Qwest a lucrative government contract. A former high-level intelligence official will add that other telecom companies had little problem agreeing to the NSA’s requests. Nacchio believes that the NSA’s request is illegal under the Telecommunications Act without court orders; the former White House official will acknowledge that it might violate the 1986 Electronic Communications Privacy Act. After 9/11, that law will be amended by the USA Patriot Act to give the government more room to monitor US citizens.
Qwest, Other Telecom Firms Cooperative with Other Agencies - Qwest is apparently less reluctant to share other information with the Pentagon. Qwest began sharing its technology and information as far back as 1997 (see 1997). In May 2001, Commerce Secretary Don Evans will tell the Senate Appropriations Committee that his department helped persuade Qwest to “share proprietory information with the Defense Department to evaluate the vulnerability of its network.” Qwest, which serves the Rocky Mountain and West Coast regions of the country, covers the areas that house some of the military’s most important command-and-control facilities, including the US Strategic Command. In the 1990s, Qwest began actively pursuing contracts with the Defense Department to build more modern, private, secure networks for defense and intelligence agencies. [National Journal, 11/2/2007]
Meetings with Bush Officials - In court documents filed in 2006 to challenge his prosecution for insider trading and, in heavily redacted form, released to the public in 2007, Nacchio will indicate that telecom executives met frequently with Bush administration officials before 9/11, including Deputy Defense Secretary Paul Wolfowitz, National Security Adviser Condoleezza Rice, NSA Director Michael Hayden, and counterterrorism “tsar” Richard Clarke. Many telecom firms are working closely with the government to develop highly classified operations, including joint networks to which the government will have unfettered access. The future director of national intelligence, Mike McConnell, works with telecom firms to expand the cooperation between the telecom industry and the federal government. [Salon, 10/15/2007]

Entity Tags: Condoleezza Rice, US Department of Defense, Bush administration (43), Verizon Communications, AT&T, US Department of Commerce, Senate Appropriations Committee, US Strategic Command, BellSouth, Donald L. Evans, Echelon, Richard A. Clarke, Qwest, Mike McConnell, National Security Agency, Joe Nacchio, Paul Wolfowitz

Timeline Tags: Civil Liberties

Joseph Nacchio.Joseph Nacchio. [Source: publicity photo via Business Week]Qwest CEO Joe Nacchio meets with NSA officials in Fort Meade, Maryland, to discuss two topics of mutual interest: a $100 million infrastructure upgrade that Qwest, one of the US’s largest telecommunications firms, can perform for the agency, and another topic that remains classified. (The meeting will be revealed in heavily redacted court documents released six years later—see October 12, 2007). Observers believe the discussion is about the NSA’s warrantless wiretapping program of US citizens, which the government will conceal for years (see December 15, 2005), and which the Bush administration will insist did not come about until after the 9/11 attacks (see December 17, 2005). Nacchio meets with NSA officials to discuss the agency’s “Groundbreaker” project (see February 2001), which the NSA will later claim is merely a modernization and upgrade of its technological infrastructure. A June 2006 lawsuit against AT&T over that firm’s cooperation with the NSA alleges that “Groundbreaker” is part of a secret domestic surveillance operation. According to the court documents, Nacchio and the NSA are unable to agree on an unrevealed topic of discussion; after that disagreement, the NSA will withdraw its “Groundbreaker” contract from consideration for Qwest. Nacchio, according to the documents, believes that the unrevealed topic of discussion involves illegal and inappropriate actions. He asks the agency officials whether “a warrant or other legal process had been secured.” The NSA officials, according to the documents, have a “disinclination on the part of the authorities to use any legal process,” leading Nacchio to conclude that “the requests violated the privacy requirements of the Telecommunications Act.” When Nacchio refuses to cooperate with the NSA, the agency withdraws its offer of the “Groundbreaker” contract. [Raw Story, 10/12/2007; Marketwatch, 10/13/2007] James F.X. Payne, the former chief of Qwest’s government business unit, will later tell investigators, “There was a feeling also that the NSA acted as agents for other government agencies.” [National Journal, 11/2/2007] In 2007, the New York Times will reveal that Qwest refuses to give the NSA access to its most localized communications switches, carrying largely domestic phone calls. The arrangement would have permitted neighborhood-by-neighborhood surveillance of phone traffic without a court order. [New York Times, 12/16/2007] The NSA has more success with other companies—and has enjoyed a long and fruitful relationship with Qwest as well (see February 2001).

Entity Tags: Qwest, New York Times, James F.X. Payne, Bush administration (43), AT&T, Joe Nacchio, National Security Agency

Timeline Tags: Civil Liberties

The National Security Agency (NSA) engages in apparently illegal surveillance of US citizens beginning shortly after the inauguration of George W. Bush as president. This will not be revealed to the public until media reports in January 2006, a month after the press revealed that the NSA had engaged in similar illegal wiretaps and surveillance of American citizens after the 9/11 attacks, using those attacks as justification for the surveillance (see December 15, 2005). The former NSA and counterterrorism officials who reveal the pre-9/11 spying will claim that the wiretaps, e-mail monitoring, and Internet surveillance were all “inadvertent,” as NSA computers “unintentionally” intercepted US citizens’ international phone calls and e-mails when the computers flagged keywords. NSA protocol demands that such “inadvertent” surveillance end as soon as NSA analysts realize they are spying on those citizens, and the names of the monitored citizens are supposed to be deleted from the NSA databases. Instead, the NSA is instructed to continue monitoring some citizens that are characterized as “of interest” to White House officials. Those officials include President Bush, Vice President Cheney, and Defense Secretary Donald Rumsfeld, say the former NSA and counterterrorism officials. In December 2000, the NSA told the incoming Bush administration that some US citizens are being inadvertently targeted for surveillance, but the names of the citizens are deleted because the law expressly prohibits the NSA from spying on US citizens, US corporations, or even permanent US residents (see December 2000). However, once Bush takes office in January 2001, that practice undergoes a radical change. In the first few months of the administration, President Bush assigns Vice President Cheney to make himself more of a presence at the various US intelligence agencies, particularly the CIA, NSA, and DIA. Cheney, along with other officials at the State and Defense Departments, begins making repeated requests to the NSA to reveal the identities of those Americans which had previously been deleted, so that administration officials can more fully understand the context and scope of the intelligence. Such requests are technically legal. But Cheney goes well beyond the law when he requests, as he frequently does, that the NSA continue monitoring specific Americans already caught up in the NSA’s wiretaps and electronic surveillance. A former White House counterterrorism official will later claim that Cheney advised Bush of what he was learning from the NSA. “What’s really disturbing is that some of those people the vice president was curious about were people who worked at the White House or the State Department,” says another former counterterrorism official. “There was a real feeling of paranoia that permeated from the vice president’s office and I don’t think it had anything to do with the threat of terrorism. I can’t say what was contained in those taps that piqued his interest. I just don’t know.” [Truthout (.org), 1/17/2006]

Entity Tags: Richard (“Dick”) Cheney, Central Intelligence Agency, Defense Intelligence Agency, George W. Bush, Donald Rumsfeld, US Department of Defense, National Security Agency, US Department of State

Timeline Tags: Civil Liberties

One of the approximately 30 radomes at the Echelon station in Menwith Hill, England. A radome covers an antenna to protect it from the weather and disguise the direction it is pointing.One of the approximately 30 radomes at the Echelon station in Menwith Hill, England. A radome covers an antenna to protect it from the weather and disguise the direction it is pointing. [Source: Matt Crypto / Public domain]The BBC reports on advances in electronic surveillance. The US’s global surveillance program, Echelon, has become particularly effective in monitoring mobile phones, recording millions of calls simultaneously and checking them against a powerful search engine designed to pick out key words that might represent a security threat. Laser microphones can pick up conversations from up to a kilometer away by monitoring window vibrations. If a bug is attached to a computer keyboard, it is possible to monitor exactly what is being keyed in, because every key on a computer has a unique sound when depressed. [BBC, 4/4/2001] Furthermore, a BBC report on a European Union committee investigation into Echelon one month later notes that the surveillance network can sift through up to 90 percent of all Internet traffic, as well as monitor phone conversations, mobile phone calls, fax transmissions, net browsing history, satellite transmissions and so on. Even encryption may not help much. The BBC suggests that “it is likely that the intelligence agencies can crack open most commercially available encryption software.” [BBC, 5/29/2001]

Entity Tags: Echelon, British Broadcasting Corporation

Timeline Tags: Complete 911 Timeline, 9/11 Timeline, Civil Liberties

In July 2001, NSA director Michael Hayden tells a reporter that the NSA does not monitor any US citizens without court warrants from the Foreign Intelligence Surveillance Court (FISC). “We don’t do anything willy-nilly,” Hayden says. “We’re a foreign intelligence agency. We try to collect information that is of value to American decision-makers, to protect American values, America—and American lives. To suggest that we’re out there, on our own, renegade, pulling in random communications, is—is simply wrong. So everything we do is for a targeted foreign intelligence purpose. With regard to the—the question of industrial espionage, no. Period. Dot. We don’t do that.” When asked how Americans could verify that, Hayden says that they should simply trust the NSA to police and monitor itself, along with oversight from the White House and from Congress. However, it will later come to light that the NSA began illegally monitoring US citizens from the start of the Bush administration (see Spring 2001). A former NSA official will later dispute Hayden’s account. “What do you expect him to say?” the official says. “He’s got to deny it. I agree. We weren’t targeting specific people, which is what the President’s executive order does. However, we did keep tabs on some Americans we caught if there was an interest [by the White House.] That’s not legal. And I am very upset that I played a part in it.” [Truthout (.org), 1/17/2006] Hayden also denies persistent allegations from European government officials that the agency has engaged in economic espionage to help American companies against European competitors (see April 4, 2001). In March 2001, the American Civil Liberties Union’s Barry Steinhardt says that “since there is no real check on [the NSA], there is no way to know” if they are following the law. Steinhardt says that Congress is the only real check on possible NSA abuses, but it has consistently failed to exercise any sort of aggressive oversight on the agency. [CNN, 3/31/2001]

Entity Tags: National Security Agency, Barry Steinhardt, Michael Hayden, American Civil Liberties Union

Timeline Tags: Civil Liberties

Glyn Ford.Glyn Ford. [Source: British Labour Party]The European Parliament releases its final report on its findings about the secretive US surveillance program known as Echelon. The report, two years in the making, exhaustively details many of Echelon’s surveillance capabilities, and lists many of Echelon’s surveillance stations around the world. One of the more interesting sections of the report concerns its apparent use on behalf of US corporations. According to the report, Echelon—operated by the NSA as a highly classified surveillance program ostensibly for tracking terrorist threats and activities by nations hostile to the West—is also being used for corporate and industrial espionage, with information from the program being turned over to US corporations for their financial advantage. The report gives several instances of Echelon’s use by corporations. One is the use of Echelon to “lift… all the faxes and phone calls” between the European aircraft manufacturer Airbus and Saudi Arabian Airlines; that information was used by two American companies, Boeing and McDonnell Douglas, to outflank Airbus and win a $6 billion contract. The report also alleges that the French company Thomson-CSF lost a $1.3 billion satellite deal to Raytheon the same way. Glyn Ford, the MP who commissioned the report, says he doesn’t have a problem with Echelon itself, but in the way it is being used. “Now, you know, if we’re catching the bad guys, we’re completely in favor of that… What we’re concerned about is that some of the good guys in my constituency don’t have jobs because US corporations got an inside track on—on some global deal.” [Washington Post, 11/14/1999; CBS News, 2/27/2000; BBC, 7/6/2000; European Parliament, 7/11/2001] In 1977, the US government began providing Echelon-based intelligence to US corporations (see 1977). In April 2001, New Zealand journalist Nicky Hager testified about Echelon’s use by US allies for corporate and economic purposes (see April 2001), and former CIA director James Woolsey confirmed that US surveillance programs were used to benefit US corporations (see March 2000).

Entity Tags: US Department of Commerce, Thomson-CSF, Saudi Arabian Airlines, Glyn Ford, McDonnell Douglas, Central Intelligence Agency, Boeing Company, Echelon, Airbus, European Parliament, National Security Agency

Timeline Tags: Civil Liberties

David Addington.David Addington. [Source: David Bohrer / White House]According to an in-depth examination by the Washington Post, within hours of the 9/11 attacks, Vice President Dick Cheney begins working to secure additional powers for the White House. Cheney had plans in place to begin acquiring these powers for the executive branch before the attacks, but had not begun to execute them.
Gathering the Team - David Addington, Cheney’s general counsel and legal adviser, had been walking home after having to leave the now-evacuated Eisenhower Executive Office Building. He receives a message from the White House telling him to turn around, because the vice president needs him. After Addington joins Cheney in the Presidential Emergency Operations Center (PEOC) below the East Wing of the White House, the pair reportedly begin “contemplating the founding question of the legal revolution to come: What extraordinary powers will the president need for his response?” Later in the day, Addington connects by secure video with Timothy Flanigan, the deputy White House counsel, who is in the White House Situation Room. John Yoo, the deputy chief of the Office of Legal Counsel, is also patched in from the Justice Department’s command center. White House counsel Alberto Gonzales joins them later. This forms the core legal team that Cheney will oversee after the terrorist attacks. Associate White House counsel Bradford Berenson will later recall: “Addington, Flanigan and Gonzales were really a triumvirate. [Yoo] was a supporting player.” Addington dominates the group. Gonzales is there primarily because of his relationship with President Bush. He is not, Yoo will later recall, “a law-of-war expert and [doesn’t] have very developed views.” Along with these allies, Cheney will provide what the Washington Post calls “the rationale and political muscle to drive far-reaching legal changes through the White House, the Justice Department, and the Pentagon,” which will free the president to fight the war on terror, “as he saw fit.”
Drafting the AUMF - The team begins drafting the document that will become the Authorization to Use Military Force (AUMF—see October 10, 2002) passed by Congress for the assault on Afghanistan. In the words of the group, the president is authorized “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States.”
Extraordinarily Broad Language - The language is extraordinarily broad; Yoo will later explain that they chose such sweeping language because “this war was so different, you can’t predict what might come up.” The AUMF draft is the first of numerous attempts to secure broad powers for the presidency, most justified by the 9/11 attacks. The Washington Post will later report, “In fact, the triumvirate knew very well what would come next: the interception—without a warrant—of communications to and from the United States” (see September 25, 2001). [CNN, 9/11/2001; CNN, 9/12/2001; Unger, 2007, pp. 220-221; Washington Post, 6/24/2007]

Entity Tags: Richard (“Dick”) Cheney, John C. Yoo, Timothy E. Flanigan, Craig Unger, Bradford Berenson, David S. Addington, Alberto R. Gonzales

Timeline Tags: Complete 911 Timeline, 9/11 Timeline, Civil Liberties

After the 9/11 attacks, the Bush administration seizes the new opportunities to expand the power of the presidency that present themselves as part of the government’s response to the attacks (see (After 10:00 a.m.) September 11, 2001). The Bush-Cheney legal team, largely driven by Vice President Dick Cheney and his staff (see January 21, 2001), aggressively pushes for new opportunities to expand executive branch authorities.
'Bravado,' 'Close-Minded Group of Like-Minded People' - A senior White House official later tells author and reporter Charlie Savage of the “pervasive post-9/11 sense of masculine bravado and one-upmanship when it came to executive power.” In Savage’s words, and quoting the official, “a ‘closed group of like-minded people’ were almost in competition with one another, he said, to see who could offer the farthest-reaching claims of what a president could do. In contrast, those government lawyers who were perceived as less passionate about presidential power were derided as ‘soft’ and were often simply cut out of the process” (see also September 25, 2001).
Suspicion of Oversight - “The lawyers for the administration felt a tremendous amount of time pressure, and there was a lot of secrecy,” the official will say. “These things were being done in small groups. There was a great deal of suspicion of the people who normally act as a check inside the executive branch, such as the State Department, which had the reputation of being less aggressive on executive power. This process of faster, smaller groups fed on itself and built a dynamic of trying to show who was tougher on executive power.”
Addington and Yoo: Outsized Influence - While nominally the leaders of the White House legal team are Attorney General John Ashcroft and White House counsel Alberto Gonzales, neither has as much influence as lawyers and staffers ostensibly of lower rank than themselves. Ashcroft is a vociferous supporter of the administration’s anti-terrorism policies, but is not a member of Bush’s inner circle and sometimes disagrees with the White House’s legal moves. Neither Ashcroft nor Gonzales have prior experience dealing with the legal issues surrounding executive power and national security. Two of the driving forces behind the White House’s push for more presidential power are Cheney’s chief counsel, David Addington, and an obscure deputy in the Office of Legal Counsel (OLC), John Yoo. Because of a dispute between Ashcroft and the Bush inner circle over who should lead the OLC, there is no official chief of the OLC until November 2002, leaving Yoo and his fellows free to be as aggressive as they like on expanding presidential power and handling the war on terrorism. When the OLC chief, law professor Jay Bybee, finally arrives, he, like Ashcroft and Gonzales, finds himself hampered by his lack of knowledge of the law as it pertains to national security. Savage will later write, “When he finally started work, Bybee let deputies continue to spearhead the review of matters related to the war on terrorism.” Yoo is only a deputy assistant attorney general, but he has “signing power”—the ability to make his opinion legally binding—and is rarely reviewed by his peers because much of his work is classified. [Savage, 2007, pp. 76-78] As for Addington, Lawrence Wilkerson, the chief of staff for Secretary of State Colin Powell, will later say that he was the leader of the small but highly influential group of lawyers “who had these incredible theories and would stand behind their principles [Cheney, Bush, and others], whispering in their ears about these theories, telling them they have these powers, that the Constitution backs these powers, that these powers are ‘inherent’ and blessed by God and if they are not exercised, the nation will fall. He’d never crack a smile. His intensity and emotions and passion for these theories are extraordinary.” [Savage, 2007, pp. 84]

Entity Tags: US Department of State, Lawrence Wilkerson, Alberto R. Gonzales, Bush administration (43), Charlie Savage, David S. Addington, Jay S. Bybee, Richard (“Dick”) Cheney, John C. Yoo, John Ashcroft

Timeline Tags: Civil Liberties

NSA director Michael Hayden addresses the NSA in a global videoconference, saying that the NSA, like other government agencies, will have to do more to protect the country from further terrorist attacks. The challenge, he says, is to balance Americans’ security with civil liberties, “to keep America free by making Americans feel safe again.” Hayden will say in a 2006 speech reflecting on that videoconference (see January 23, 2006) that US citizens operate under misconceptions about the NSA’s capabilities—that while citizens believe the NSA has a global electronic surveillance network that can, and does, spy on citizens willy-nilly, in reality the NSA is understaffed and unprepared to handle the technological advances of the last decade. Hayden will say that with more extensive domestic surveillance of US citizens and foreign visitors, the NSA could have caught some of the 9/11 hijackers before they were able to put their plan into motion. The standards by which US citizens and foreign visitors are monitored must change, Hayden believes.
Expansion of NSA Surveillance Powers - Using Ronald Reagan’s 1981 executive order 12333 (see December 4, 1981), Hayden expands the NSA’s domestic surveillance practices to eavesdrop, sometimes without court approval, on selected international calls made by US citizens. Though Hayden’s expansion of NSA surveillance is not directly authorized by President Bush, and is not the same program as authorized by Bush’s secret executive order of 2002 (see Early 2002), Hayden will later say that this expansion is based on the intelligence community’s assessment “of a serious and continuing threat to the homeland.” Hayden’s program is reviewed and approved by lawyers at the NSA, the Justice Department, and the White House, as well as Attorney General John Ashcroft. [Michael Hayden, 1/23/2006]
Domestic Surveillance Began Before 9/11? - Though Bush officials admit to beginning surveillance of US citizens only after the 9/11 attacks, some evidence indicates that the domestic surveillance program began some time before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001).

Entity Tags: Terrorist Surveillance Program, US Department of Justice, National Security Agency, John Ashcroft, George W. Bush, Bush administration (43), Ronald Reagan, Michael Hayden

Timeline Tags: Civil Liberties

In a memo, responding to a request from Deputy White House Counsel Timothy E. Flanigan, Justice Department lawyer John C. Yoo provides legal advice on “the legality of the use of military force to prevent or deter terrorist activity inside the United States.” He addresses the question of how the Fourth Amendment to the US Constitution applies to the use of “deadly force” by the military “in a manner that endangered the lives of United States citizens.” The Fourth Amendment requires the government to have some objective suspicion of criminal activity before it can infringe on an individual’s liberties, such as the right to privacy or the freedom of movement. Yoo writes that in light of highly destructive terrorist attacks, “the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties.” If the president determines the threat of terrorism high enough to deploy the military inside US territory, then, Yoo writes, “we think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection.” [New York Times, 10/24/2004] A month later, the Justice Department will issue a similar memo (see October 23, 2001).

Entity Tags: John C. Yoo, Timothy E. Flanigan, US Department of Justice

Timeline Tags: Torture of US Captives, Civil Liberties

John Yoo, a deputy assistant attorney general in the Department of Justice (DOJ) Office of Legal Counsel (OLC), issues a legal opinion that says the US can conduct electronic surveillance against its citizens without probable cause or warrants. According to the memo, the opinion was drafted in response to questions about whether it would be constitutional to amend the Foreign Intelligence Surveillance Act (FISA) to state that searches may be approved when foreign intelligence collection is “a purpose” of the search, rather than “the purpose.” Yoo finds this would be constitutional, but goes further. He asserts that FISA is potentially in conflict with the Constitution, stating, “FISA itself is not required by the Constitution, nor is it necessarily the case that its current standards match exactly to Fourth Amendment standards.” Citing Vernonia School Dist. 47J v. Acton, in which the Supreme Court found that warrantless searches of students were permissible, Yoo argues that “reasonableness” and “special needs” are also the standards according to which warrantless monitoring of the private communications of US persons is permissible. According to Yoo, the Fourth Amendment requirement for probable cause and warrants prior to conducting a search pertain primarily to criminal investigations, and in any case cannot be construed to restrict presidential responsibility and authority concerning national security. Yoo further argues that in the context of the post-9/11 world, with the threat posed by terrorism and the military nature of the fight against terrorism, warrantless monitoring of communications is reasonable. Some information indicates the NSA began a broad program involving domestic surveillance prior to the 9/11 attacks, which contradicts the claim that the program began after, and in response to, the attacks (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001). [US Department of Justice, 9/25/2001 pdf file; American Civil Liberties Union [PDF], 1/28/2009 pdf file; New York Times, 3/2/2009; Inspectors General, 7/10/2009]
Yoo Memo Used to Support Legality of Warrantless Surveillance - Yoo’s memo will be cited to justify the legality of the warrantless domestic surveillance program authorized by President Bush in October 2001 (see October 4, 2001). NSA Director General Michael Hayden, in public remarks on January 23, 2006, will refer to a presidential authorization for monitoring domestic calls having been given prior to “early October 2001.” Hayden will also say, “The lawfulness of the actual authorization was reviewed by lawyers at the Department of Justice and the White House and was approved by the attorney general.” The various post-9/11 NSA surveillance activities authorized by Bush will come to be referred to as the President’s Surveillance Program (PSP), and the first memo directly supporting the program’s legality will be issued by Yoo on November 2, 2001, after the program has been initiated (see November 2, 2001). Many constitutional authorities will reject Yoo’s legal rationale. [Michael Hayden, 1/23/2006]
Yoo Memo Kept Secret from Bush Officials Who Might Object - According to a report by Barton Gellman and Jo Becker in the Washington Post, the memo’s “authors kept it secret from officials who were likely to object,” including ranking White House national security counsel John Bellinger, who reports to National Security Adviser Condoleezza Rice. Bellinger’s deputy, Bryan Cunningham, will tell the Post that Bellinger would have recommended having the program vetted by the Foreign Intelligence Surveillance Court, which oversees surveillance under FISA. Gellman and Becker quote a “senior government lawyer” as saying that Vice President Dick Cheney’s attorney, David Addington, had “open contempt” for Bellinger, and write that “more than once he accused Bellinger, to his face, of selling out presidential authority for good ‘public relations’ or bureaucratic consensus.” [Washington Post, 6/24/2007]

Entity Tags: US Department of Justice, John Bellinger, National Security Agency, Bryan Cunningham, Condoleezza Rice, David S. Addington, Foreign Intelligence Surveillance Act, Foreign Intelligence Surveillance Court, Office of Legal Counsel (DOJ), John C. Yoo, George W. Bush, Richard (“Dick”) Cheney

Timeline Tags: Civil Liberties

According to author Ronald Kessler’s November 2007 book The Terrorist Watch, the NSA’s domestic surveillance program begins around two weeks after the 9/11 attacks, when President Bush meets with NSA director Michael Hayden and other NSA officials in the Oval Office. According to chief of staff Andrew Card, in attendance, Bush asks, “What tools do we need to fight the war on terror?” Hayden suggests revamping NSA guidelines to allow the agency to wiretap domestic phone calls and intercept e-mails to and from terror suspects if one end of the communication is overseas. Kessler gives the following rather lurid example: “Thus, if [Osama] bin Laden were calling the US to order the detonation of a nuclear device, and the person he called began making overseas calls, NSA could listen in to those calls as well as to bin Laden’s original call.” Kessler is a chief correspondent for the extremist conservative Web site NewsMax; his assertion is disputed by evidence suggesting that the domestic surveillance program began well before the 9/11 attacks (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001). [Kessler, 2007, pp. 130]

Entity Tags: National Security Agency, Andrew Card, Michael Hayden, Ronald Kessler, George W. Bush

Timeline Tags: Civil Liberties

NSA Director Michael Hayden briefs the House Intelligence Committee on the NSA’s efforts to combat terrorism. Though the NSA is already working on a domestic wiretapping program to spy, without warrants, on US citizens (see Early 2002), Hayden does not mention the program to the committee members, but merely discusses the ramifications of President Reagan’s Executive Order 12333 (see December 4, 1981 and September 13, 2001) on NSA functions. He does not mention that Reagan’s executive order forbids warrantless surveillance of US citizens “unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power.” On October 11, committee member Nancy Pelosi (D-CA) will write to Hayden expressing her concerns about the warrantless nature of the NSA wiretaps (see October 11, 2001). [Washington Post, 1/4/2006]

Entity Tags: National Security Agency, House Intelligence Committee, Michael Hayden, Nancy Pelosi, Terrorist Surveillance Program, Ronald Reagan

Timeline Tags: Civil Liberties

President Bush issues a directive authorizing the National Security Agency (NSA) to operate a warrantless domestic surveillance program. Author/journalist Jane Mayer will report in 2011, “[O]n October 4, 2001, Bush authorized the policy, and it became operational by October 6th,” and, “[t]he new policy, which lawyers in the Justice Department justified by citing President Bush’s executive authority as commander in chief, contravened a century of constitutional case law.” Mayer will interview NSA whistleblower Thomas Drake for her article and quote him as saying that, following the October 4 directive, “strange things were happening. Equipment was being moved. People were coming to me and saying, ‘We’re now targeting our own country!’” Bush’s directive is based on a legal opinion drafted by Department of Justice Office of Legal Counsel Deputy Attorney General John Yoo (see September 25, 2001). [New Yorker, 5/23/2011]
Conflicting Information regarding Date of First Authorization - The existence of the NSA’s domestic surveillance program will first be made public in December 2005, following reporting by the New York Times that will cite “[n]early a dozen current and former officials” (see December 15, 2005). The Times article will state that in 2002, “[m]onths after the Sept. 11 attacks,” Bush signed an executive order authorizing the NSA to monitor domestic phone calls, including those of US citizens and permanent residents, if one end of the call was outside the country. The Times article also mentions an NSA “‘special collection program’ [that] began soon after the Sept. 11 attacks, as it looked for new tools to attack terrorism.” The difference between the October 4, 2001 directive and the 2002 executive order referred to by the Times is unclear. [New York Times, 12/16/2005]
Other Sources for October Directive - Other sources, including Bush, NSA Director General Michael Hayden, and the inspectors general of five separate agencies, will later refer to a presidential order having been given in “October,” or “weeks” after the 9/11 attacks, and say that, subsequent to this order, international calls of US persons are targeted for content-monitoring. Following the publication of the Times article, Bush will say in a December 17, 2005 radio address: “In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with US law and the Constitution, to intercept the international communications of people with known links to al-Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks” (see December 17, 2005). This presidential authorization was based on a legal opinion drafted by Department of Justice Office of Legal Counsel attorney John Yoo (see October 18, 2001). [WhiteHouse(.gov), 12/17/2005] Hayden, in public remarks on January 23, 2006, will refer to a presidential authorization for monitoring domestic calls having been given prior to “early October 2001,” which is when he “gathered key members of the NSA workforce… [and] introduced [the NSA’s] new operational authority to them.” Hayden will also say, “The lawfulness of the actual authorization was reviewed by lawyers at the Department of Justice and the White House and was approved by the attorney general,” and that “the three most senior and experienced lawyers in NSA… supported the lawfulness of this program.” [Michael Hayden, 1/23/2006] In a July 10, 2009 jointly-issued report, the inspectors general of the Department of Defense, Department of Justice, CIA, NSA, and Office of the Director of National Intelligence will refer to the “President’s Surveillance Program” (PSP) and “the program’s inception in October 2001.” The report will say: “One of the activities authorized as part of the PSP was the interception of the content of communications into and out of the United States where there was a reasonable basis to conclude that one party to the communication was a member of al-Qaeda or related terrorist organizations.… The attorney general subsequently publicly acknowledged the fact that other intelligence activities were also authorized under the same presidential authorization, but the details of those activities remain classified.” [Inspectors General, 7/10/2009] Citing “a senior administration official,” the Washington Post will report on January 4, 2006: “The secret NSA program… was authorized in October 2001.… The president and senior aides have publicly discussed various aspects of the program, but neither the White House, the NSA, nor the office of the director of national intelligence would say what day the president authorized it.” [Washington Post, 1/4/2006]

Entity Tags: US Department of Justice, Thomas Drake, US Department of Defense, Office of Legal Counsel (DOJ), Office of the Director of National Intelligence, Michael Hayden, National Security Agency, George W. Bush, Central Intelligence Agency, John C. Yoo, Jane Mayer

Timeline Tags: Civil Liberties

Nancy Pelosi.Nancy Pelosi. [Source: US Congress]House Minority Leader Nancy Pelosi (D-CA) writes to NSA Director Michael Hayden questioning the nature and extent of the apparently illegal warrantless wiretapping of US citizens by the agency. Pelosi and other members of the House Intelligence Committee were briefed on October 1, 2001, by Hayden, whose agency began conducting surveillance against US citizens after the 9/11 attacks (see After September 11, 2001). Pelosi will release the letter on January 6, 2006, three weeks after the New York Times revealed that the NSA had been conducting electronic surveillance of US citizens without warrants since at least 2002 (see December 15, 2005.) Pelosi’s office will also release Hayden’s response, but almost the entire letter from Hayden is redacted.
Letter to Hayden - Pelosi writes in part, “[Y]ou indicated [in the briefing] that you had been operating since the September 11 attacks with an expansive view of your authorities with respect to the conduct of electronic surveillance under the Foreign Intelligence Surveillance Act and related statutes, orders, regulations, and guidelines.… For several reasons, including what I consider to be an overly broad interpretation of President Bush’s directive of October 5 on sharing with Congress ‘classified or sensitive law enforcement information’ it has not been possible to get answers to my questions. Without those answers, the concerns I have about what you said on the First can not be resolved, and I wanted to bring them to your attention directly. You indicated that you were treating as a matter of first impression, [redacted ] being of foreign intelligence interest. As a result, you were forwarding the intercepts, and any information [redacted ] without first receiving a request for that identifying information to the Federal Bureau of Investigation. Although I may be persuaded by the strength of your analysis [redacted ] I believe you have a much more difficult case to make [redacted ] Therefore, I am concerned whether, and to what extent, the National Security Agency has received specific presidential authorization for the operations you are conducting. Until I understand better the legal analysis regarding the sufficiency of the authority which underlies your decision on the appropriate way to proceed on this matter, I will continue to be concerned.” The only portion of Hayden’s October 18 reply regarding Pelosi’s concerns that has not been redacted reads, “In my briefing, I was attempting to emphasize that I used my authorities to adjust NSA’s collection and reporting.” In January 2006, an NSA official will say that Pelosi’s concerns were adequately addressed in Hayden’s reply, and in a private briefing shortly thereafter. [Washington Post, 1/4/2006; Nancy Pelosi, 1/6/2006]
Pelosi Unaware of Pre-9/11 Surveillance - Though Bush officials eventually admit to beginning surveillance of US citizens only after the 9/11 attacks, that assertion is disputed by evidence suggesting that the domestic surveillance program began well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001). Pelosi is apparently unaware of any of this.

Entity Tags: Michael Hayden, House Intelligence Committee, Nancy Pelosi

Timeline Tags: Civil Liberties

NSA Director Michael Hayden responds to an October 11 letter from Representative Nancy Pelosi (see October 11, 2001), expressing concerns about the NSA’s post-9/11 surveillance expansion (see After September 11, 2001) that Hayden outlined for the House Intelligence Committee on October 1 (see October 1, 2001), and asking whether the president authorized it. The substance of Hayden’s October 18 reply will be redacted, except for this statement: “In my briefing, I was attempting to emphasize that I used my authorities to adjust NSA’s collection and reporting.” [Nancy Pelosi, 1/6/2006] A January 4, 2006 report in the Washington Post will cite “intelligence official close to Hayden” as saying that “[Hayden’s] appearance on Oct. 1, 2001, before the House committee had been to discuss Executive Order 12333, and not the new NSA program,” and that “Pelosi’s concerns had been answered in writing and again several weeks later during a private briefing.” [Washington Post, 1/4/2006] In a January 23, 2006 public briefing, Hayden will say, “September 2001, I asked to update the Congress on what NSA had been doing, and I briefed the entire House Intelligence Committee on the 1st of October on what we had done under our previously existing authorities,” and, “These decisions were easily within my authorities as the director of NSA under and [sic] executive order; known as Executive Order 12333.” [Michael Hayden, 1/23/2006]
Nature of Hayden's EO 12333 Surveillance Program - The full scope of Hayden’s surveillance program is unclear, but some sources indicate it includes the wholesale collection and data-mining of phone records provided by telecom companies and placement of pen registers (call trackers) on domestic phone numbers (see After September 11, 2001, October 11, 2001, After September 11, 2001, Late September, 2001, October 2001), and October 31, 2001). Some sources indicate the NSA began large-scale domestic surveillance activities prior to the 9/11 attacks (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001).

Entity Tags: Michael Hayden, House Intelligence Committee, Nancy Pelosi, National Security Agency

Timeline Tags: Civil Liberties

The Justice Department’s John Yoo and Robert Delahunty issue a memo to White House counsel Alberto Gonzales claiming President Bush has sweeping powers in wartime that essentially void large portions of the Constitution. The memo, which says that Bush can order military operations inside the US (see October 23, 2001), also says that Bush can suspend First Amendment freedoms: “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” It adds that “the current campaign against terrorism may require even broader exercises of federal power domestically.” [American Civil Liberties Union [PDF], 1/28/2009 pdf file; New York Times, 3/2/2009]

Entity Tags: John C. Yoo, George W. Bush, Robert J. Delahunty, US Department of Justice, Alberto R. Gonzales

Timeline Tags: Civil Liberties

Vice President Dick Cheney summons the chairmen and ranking members of the Senate and House Intelligence Committees to the White House for a classified briefing on the secret NSA warrantless wiretapping program (see Early 2002). Cheney makes it clear to the lawmakers that he is merely informing them about the program, and not seeking their approval. [Washington Post, 12/18/2005] Officials later say that under any of the previous presidents, such a meeting of this import would involve the president. But the four lawmakers are hustled away from the Oval Office. Instead, “[w]e met in the vice president’s office,” Bob Graham (D-FL), the chairman of the Senate Intelligence Committee, later recalls. President Bush has already told Graham that “the vice president should be your point of contact in the White House.” Cheney, according to the president, “has the portfolio for intelligence activities.” [Washington Post, 6/24/2007] The leaders are briefed by Cheney, CIA Director George Tenet, and NSA Director Michael Hayden. The Congressional leaders will later mostly refuse to comment publicly about what they do and do not learn about the program, even after it is revealed to the public (see December 15, 2005). In 2003, when Senator John D. Rockefeller ascends to the Democratic leadership of the Senate committee, and is himself briefed on the program, he will write to Cheney expressing his concerns over it (see July 17, 2003). [New York Times, 12/15/2005]
'No Discussion about Expanding' NSA Wiretapping - In December 2005, after the program is revealed to the public, one of the Congressmen present at the briefings, Graham, the then-chairman of the Senate Intelligence Committee, will discuss his knowledge of the program. In contradiction to the characterizations of Bush and other White House officials, Graham will say that he recalls “no discussion about expanding [NSA eavesdropping] to include conversations of US citizens or conversations that originated or ended in the United States,” and knew nothing of Bush’s intention to ignore the Foreign Intelligence Surveillance Court (also known as the FISA court). “I came out of the room with the full sense that we were dealing with a change in technology but not policy,” Graham will recall, using new methodologies to intercept overseas calls that passed through US switches. He thought that NSA eavesdropping would continue to be limited to “calls that initiated outside the United States, had a destination outside the United States but that transferred through a US-based communications system.” Instead, Graham will say, it now seems that Bush decided to go “beyond foreign communications to using this as a pretext for listening to US citizens’ communications. There was no discussion of anything like that in the meeting with Cheney.” A senior intelligence official, who refuses to reveal his identity but says he is speaking with the permission of the White House, will accuse Graham of “misremembering the briefings,” which he will call “very, very comprehensive.” The official will refuse to discuss the briefings in any but the most general terms, but will say they were intended “to make sure the Hill knows this program in its entirety, in order to never, ever be faced with the circumstance that someone says, ‘I was briefed on this but I had no idea that—’ and you can fill in the rest.” Graham will characterize the official’s description as saying: “[W]e held a briefing to say that nothing is different.… Why would we have a meeting in the vice president’s office to talk about a change and then tell the members of Congress there is no change?” House Minority Leader Nancy Pelosi (D-CA), who was also present at the meeting as the ranking Democrat on the House Intelligence Committee, will say the briefing described “President Bush’s decision to provide authority to the National Security Agency to conduct unspecified activities.” She will note that she “expressed my strong concerns” but did not go into detail. [Washington Post, 12/18/2005]
Lawmakers Unaware of Pre-9/11 Surveillance - Though Bush officials eventually admit to beginning surveillance of US citizens only after the 9/11 attacks, that assertion is disputed by evidence suggesting that the domestic surveillance program began well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001). In the briefing, Cheney informs the lawmakers of none of this.

Entity Tags: Richard (“Dick”) Cheney, Senate Intelligence Committee, Nancy Pelosi, John D. Rockefeller, House Intelligence Committee, Daniel Robert (“Bob”) Graham, George J. Tenet, George W. Bush, Michael Hayden, National Security Agency

Timeline Tags: Civil Liberties

A senior NSA official, having learned of the NSA’s post-9/11 domestic surveillance program and believing it to be illegal, takes his concerns to a staff member of the House Intelligence Committee. In a 2012 interview for Democracy Now!, William Binney, a former NSA technical director who served in the NSA for 36 years, will say that some of his staff had been recruited to work on the new program and told him of some of the things that were being done, which he believed were illegal. Binney will tell co-host Juan Gonzalez: “I immediately went to the Intelligence Committee, because… the intelligence committees were formed to have oversight over the intelligence community to make sure they didn’t monitor US citizens.… And the member of the staff that I went to went to Porter Goss, who was chairman of that committee at the time, and he referred her to General Hayden for any further. When it was the job of that committee to do the oversight on all this domestic spying, they weren’t doing it.” Soon after this, Binney retires from the NSA, due to his belief the NSA is violating the Constitution (see October 31, 2001). [Democracy Now!, 4/20/2012]

Entity Tags: Jane Mayer, House Intelligence Committee, William Binney, Michael Hayden, National Security Agency

Timeline Tags: Civil Liberties

Concerned that NSA post-9/11 surveillance operations violated the US Constitution, a senior NSA official reports on the program to House Intelligence Committee staff (see Before October 31, 2001), then retires. William Binney, a crypto-mathematician, had served in the NSA for 36 years. In 1997 he was made technical director of the World Geopolitical and Military Analysis Reporting Group, a 6000-employee unit that focused on signals intelligence (SIGINT) reporting and analysis. In the last part of his NSA career, Binney focused on dealing with the NSA’s problem of information overload, co-founding the Signals Intelligence Automation Research Center (SARC) and leading a 20-member team to develop a data-mining and analysis program called ThinThread. This program made it possible to “correlate data from financial transactions, travel records, Web searches, GPS equipment, and any other ‘attributes’ that an analyst might find useful,” and “could chart relationships among people in real time.” Unlike the NSA’s existing centralized data processing systems, ThinThread was able to identify useful or useless data as it was collected, reducing the overload problem. However, though it targeted foreign communications, ThinThread also intercepted those of Americans, and “continued documenting signals when a trail crossed into the US.” Binney incorporated measures to protect privacy, but NSA lawyers still considered the program too invasive, according to a 2011 article by Jane Mayer based on interviews with Binney and another NSA whistleblower, Thomas Drake. In 1999, NSA Director General Michael Hayden decided to fund a rival program, Trailblazer, which would be developed by defense contractors (see Late 1999). Trailblazer will be abandoned in 2006 as unworkable, after costing $1.2 billion (see January 2006). [New Yorker, 5/23/2011; Wired News, 2/15/2012; Democracy Now!, 4/20/2012] In 2002, three NSA whistleblowers—Edward Loomis, J. Kirk Wiebe, and Binney—will ask the Pentagon to investigate the NSA for wasting “millions and millions of dollars” on Trailblazer. [Nation, 3/26/2013]
Post-9/11 NSA Surveillance Expansion - Binney will tell Mayer that, after the 9/11 attacks, his people began coming to him, saying things like: “They’re getting billing records on US citizens! They’re putting pen registers [call logs] on everyone in the country!” James Bamford will interview Binney in 2012 and write, “At the outset the program recorded 320 million calls a day, [Binney] says, which represented about 73 to 80 percent of the total volume of the agency’s worldwide intercepts.” Binney has not been personally “read in” to this domestic surveillance program, but some members of his SARC team have, as their knowledge of ThinThread code was needed to set it up. Binney became convinced elements of ThinThread were being used, but without privacy protections, meaning US persons could be targeted. Soon after learning these things, Binney takes his concerns to the House Intelligence Committee (see Before October 31, 2001), and retires on October 31. He will tell Mayer, “I couldn’t be an accessory to subverting the Constitution.” Other sources support Binney’s account of this NSA data-mining and monitoring program (see After September 11, 2001, October 11, 2001, After September 11, 2001, Late September, 2001, and October 2001). However, the claim that NSA domestic surveillance was initiated only after, and in response to, 9/11 is contradicted by information indicating that domestic monitoring programs and activities were established and conducted prior to 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001). [New Yorker, 5/23/2011; Wired News, 2/15/2012; Democracy Now!, 4/20/2012]
ThinThread 'Would Likely Have Prevented 9/11' - Despite ThinThread’s capacity to collect actionable intelligence, Hayden vetoed the idea of deploying the system three weeks before 9/11, in August 2001. According to the Loomis, Wiebe, and Binney, this decision “left the NSA without a system to analyze the trillions of bits of foreign SIGINT flowing over the Internet at warp speed, as ThinThread could do.” During the summer of 2001, when “the system was blinking red,” according to CIA Director George Tenet, the NSA “failed to detect critical phone and e-mail communications that could have tipped US intelligence to al-Qaeda’s plans to attack.” [Nation, 3/26/2013]

Entity Tags: Edward Loomis, World Geopolitical and Military Analysis Reporting Group, J. Kirk Wiebe, William Binney, Thomas Drake, House Intelligence Committee, James Bamford, Trailblazer, Jane Mayer, National Security Agency, Signals Intelligence Automation Research Center, Michael Hayden, Thinthread

Timeline Tags: Civil Liberties

John Yoo, the Justice Department’s (DOJ) Office of Legal Counsel (OLC) deputy assistant attorney general, sends a classified memo to Attorney General John Ashcroft justifying warrantless surveillance of US persons. The National Security Agency (NSA)‘s domestic surveillance authorized by President Bush (see October 4, 2001, Early 2002, and December 15, 2005) will come to be publicly referred to as the President’s Surveillance Program (PSP). This is not the first Yoo memo supporting warrantless surveillance (see September 25, 2001), but a 2009 report on the PSP jointly issued by the inspectors general (IGs) of the Department of Defense (DOD), DOJ, CIA, National Security Agency (NSA), and Office of the Director of National Intelligence (ODNI) will refer to it as “[t]he first OLC opinion directly supporting the legality of the PSP.” The IGs’ report will quote from and comment on the memo, noting that “deficiencies in Yoo’s memorandum identified by his successors in the Office of Legal Counsel and the Office of the Deputy Attorney General later became critical to DOJ’s decision to reassess the legality of the program in 2003.” According to the IGs’ report, Yoo asserts that warrantless surveillance is constitutional as long as it is “reasonable” under the Fourth Amendment, which only protects against “unreasonable searches and siezures.” On this point, the IGs’ report will note that Yoo’s successors were troubled by his failure to discuss the Supreme Court’s decision in Youngstown Sheet & Tube Co. v. Sawyer (1952), which found the president’s wartime authority to be limited. His memo does acknowledge that the Foreign Intelligence Surveillance Act (FISA) “purports to be the exclusive statutory means for conducting electronic surveillance for foreign intelligence,” but asserts that it is only a “safe harbor for electronic surveillance” because it cannot “restrict the president’s ability to engage in warrantless searches that protect the national security.” Yoo also writes that Congress has not “made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area.” The IGs’ report will state that Yoo’s successors considered this problematic because Yoo has omitted discussion of the fact that FISA explicitly authorizes the president to conduct warrantless surveillance during the first 15 days following a declaration of war by Congress, which they considered an expression of Congress’s intent to restrict warrantless surveillance to a limited period of time and specific circumstances. The IGs’ report will also state that Yoo’s memo discusses “the legal rationale for Other Intelligence Activities authorized as part of the PSP,” and that Yoo concludes, “[W]e do not believe that Congress may restrict the president’s inherent constitutional powers, which allow him to gather intelligence necessary to defend the nation from direct attack.” The IGs’ report will say that “Yoo’s discussion of some of the Other Intelligence Activities did not accurately describe the scope of these activities,” and that Yoo’s successors considered his discussion of these other activities to be “insufficient and presenting a serious impediment to recertification of the program as to form and legality.” [Inspectors General, 7/10/2009, pp. pp. 11-13]
Memo's Existence Revealed by ACLU Lawsuit - On December 15, 2005, the New York Times will report that Bush authorized an NSA warrantless domestic surveillance program after the 9/11 attacks (see December 15, 2005). The American Civil Liberties Union (ACLU) will request records pertaining to the program under the Freedom of Information Act (FOIA) and then sue the Justice Department for the release of records. The existence of Yoo’s November 2 memo will first be revealed in an October 19, 2007 deposition filed by then head of the OLC Steven Bradbury in response to the ACLU lawsuit, which says that it “[concerns] the legality of certain communications intelligence activities.” After the 2009 release of the IGs’ report the ACLU will notify the court and the government will agree to reprocess four OLC memos, including Yoo’s November 2 memo. This memo and a May 6, 2004 memo by Yoo’s OLC successor Jack Goldsmith that disputes many of Yoo’s conclusions will be released in heavily redacted form on March 18, 2011. [ACLU.org, 2/7/2006; United States District Court of DC, 10/19/2007; American Civil Liberties Union, 3/19/2011]
Constitutional Experts Dispute Yoo's Legal Rationale - Numerous authorities on the law will question or reject the legal bases for warrantless domestic surveillance. In 2003, Yoo will leave the OLC. Goldsmith will begin a review of the PSP, after which he will conclude it is probably illegal in some respects and protest, within the executive branch, its continuation (see Late 2003-Early 2004 and December 2003-June 2004). Following the public disclosure of its existence, a January 5, 2006 report by the Congressional Research Service will find it to be of dubious legality (see January 5, 2006). On January 19, 2006, the DOJ will issue a 42-page white paper laying out the legal bases for the program (see January 19, 2006). These bases will be reviewed and rejected by 14 constitutional scholars and former government officials in a joint letter to Congress on February 2, 2006. [al [PDF], 2/2/2006 pdf file] The American Bar Association will adopt a resolution on February 13, 2006 that rejects DOJ’s arguments and calls on Congress to investigate the program. [Delegates, 2/13/2006 pdf file] On August 17, 2006, in the case ACLU v. NSA, US district judge Anna Diggs Taylor will reject the government’s invocation of the “state secrets privilege” and its argument that plaintiffs’ lack standing due to their being unable to prove they were surveilled, and will rule that warrantless surveillance is in violation of “the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution, the FISA, and Title III” (see August 17, 2006). Taylor’s ruling will be overturned on appeal, on the grounds that the plaintiffs lack standing as they cannot prove that surveillance has occurred. In another case, Al Haramain v. Barack Obama, the government will make the same arguments, but US district judge Vaughn Walker will reject these and conclude in 2010 that illegal surveillance occurred (see March 31, 2010). [Al-Haramain v. Obama, 3/31/2010]

Entity Tags: Steven Bradbury, Vaughn Walker, Ronald Dworkin, George W. Bush, John C. Yoo, American Bar Association, Office of Legal Counsel (DOJ), American Civil Liberties Union, John Ashcroft, Anna Diggs Taylor, US Department of Justice

Timeline Tags: Civil Liberties

John Yoo, a lawyer with the Justice Department’s Office of Legal Counsel (OLC), writes a legal opinion that claims the attorney general, under Executive Order 12333 (see December 4, 1981), can grant the deputy attorney general the legal authority to approve the use of surveillance techniques for which a warrant would be required for law enforcement purposes. [US Department of Justice, 11/5/2001; American Civil Liberties Union [PDF], 1/28/2009 pdf file]

Entity Tags: Office of Legal Counsel (DOJ), US Department of Justice, John C. Yoo

Timeline Tags: Civil Liberties

John Yoo, a lawyer for the Justice Department’s Office of Legal Counsel and a member of Vice President Cheney’s ad hoc legal team tasked to radically expand the power of the presidency, writes a legal brief declaring that President Bush does not need approval from Congress or the federal courts for denying suspected terrorists access to US courts, and instead can be tried in military commissions (see (After 10:00 a.m.) September 11, 2001). Two other team members, Cheney’s chief of staff David Addington and White House deputy counsel Timothy Flanigan, have decided that the government bureaucrats need to see that Bush can and will act, in the words of author Craig Unger, “without their blessing—and without the interminable process that goes along with getting that blessing.” Yoo’s opinion is a powerful object lesson. Yoo later says that he saw no need to seek the opinion of the State Department’s lawyers; that department hosts the archives of the Geneva Conventions and its lawyers are among the government’s top experts on the laws of war. “The issue we dealt with was: Can the president do it constitutionally?” Yoo will say. “State—they wouldn’t have views on that.” Neither does Yoo see a need to consult with his own superiors at the Justice Department. Attorney General John Ashcroft is livid upon learning that the draft gives the Justice Department no say in which alleged terrorists will be tried in military commissions. According to witnesses, Ashcroft confronts Cheney and David Addington over the brief, reminding Cheney that he is the president’s senior law enforcement officer; he supervises the FBI and oversees terrorism prosecutions throughout the nation. The Justice Department must have a voice in the tribunal process. He is enraged, participants in the meeting recall, that Yoo had recommended otherwise as part of the White House’s strategy to deny jurisdiction to the courts. Ashcroft talks over Addington and brushes aside interjections from Cheney: “The thing I remember about it is how rude, there’s no other word for it, the attorney general was to the vice president,” one participant recalls. But Cheney refuses to acquiesce to Ashcroft’s objections. Worse for Ashcroft, Bush refuses to discuss the matter with him, leaving Cheney as the final arbiter of the matter. In the following days, Cheney, a master of bureaucratic manipulation, will steer the new policy towards Bush’s desk for approval while avoiding the usual, and legal, oversight from the State Department, the Justice Department, Congress, and potentially troublesome White House lawyers and presidential advisers. Cheney will bring the order to Bush for his signature, brushing aside any involvement by Ashcroft, Secretary of State Colin Powell, or National Security Adviser Condoleezza Rice (see November 11-13, 2001). [Unger, 2007, pp. 222-223; Washington Post, 6/24/2007]

Entity Tags: John C. Yoo, Craig Unger, Condoleezza Rice, Colin Powell, David S. Addington, George W. Bush, John Ashcroft, US Department of State, Timothy E. Flanigan, US Department of Justice, Richard (“Dick”) Cheney, Office of Legal Counsel (DOJ)

John Yoo and Robert Delahunty of the Justice Department’s Office of Legal Counsel (OLC) write a classified memo to John Bellinger, the senior legal counsel to the National Security Council. Yoo and Delahunty claim that President Bush has the unilateral authority to “suspend certain articles” of the Anti-Ballistic Missile Treaty between the US and Russia (see May 26, 1972). Six months later, President Bush will withdraw the US from the treaty (see December 13, 2001). [US Department of Justice, 11/15/2001 pdf file; American Civil Liberties Union [PDF], 1/28/2009 pdf file] The memo will not be released until two months after the Bush administration leaves the White House (see March 2, 2009).

Entity Tags: National Security Council, John Bellinger, John C. Yoo, US Department of Justice, Robert J. Delahunty, Office of Legal Counsel (DOJ)

Timeline Tags: US International Relations

Justice Department lawyer John Yoo, an official with the Office of Legal Counsel (OLC), issues a classified memo to White House counsel Alberto Gonzales. The contents of the memo will remain secret, but its existence will be revealed in a June 2007 deposition filed in the course of an American Civil Liberties Union (ACLU) lawsuit. The memo is known to cover the War Crimes Act, the Hague Convention, the Geneva Conventions, the federal criminal code, and detainee treatment. [American Civil Liberties Union [PDF], 1/28/2009 pdf file] It is co-authored by OLC special counsel Robert Delahunty. [ProPublica, 4/16/2009]

Entity Tags: Robert J. Delahunty, American Civil Liberties Union, Office of Legal Counsel (DOJ), John C. Yoo, US Department of Justice

Timeline Tags: Civil Liberties

The Justice Department’s John Yoo sends a classified memo to the Defense Department’s general counsel, William Haynes. The contents will not be made public, but the American Civil Liberties Union (ACLU) will eventually learn that the memo concerns possible criminal charges to be brought against an American citizen who is suspected of being a member of either al-Qaeda or the Taliban. The ACLU believes the memo discusses the laws mandating that US military personnel must adhere to the Uniform Code of Military Justice, and how those laws may not apply to military personnel during a so-called “undeclared war.” [American Civil Liberties Union [PDF], 1/28/2009 pdf file]

Entity Tags: US Department of Justice, American Civil Liberties Union, Office of Legal Counsel (DOJ), John C. Yoo

Timeline Tags: Civil Liberties

Deputy Assistant Attorney Generals Patrick Philbin and John Yoo send a memorandum to Pentagon General Counsel William J. Haynes offering the legal opinion that US courts do not have jurisdiction to review the detention of foreign prisoners at Guantanamo Bay. Therefore detentions of persons there cannot be challenged in a US court of law. The memo is endorsed by the Department of Defense and White House legal counsel Alberto Gonzales. [Newsweek, 5/24/2004] The memo addresses “the question whether a federal district court would properly have jurisdiction to entertain a petition for a writ of habeas corpus filed on behalf of an alien detained at the US naval base at Guantanamo Bay, Cuba.” The conclusion of Philbin and Yoo is that it cannot, based primarily on their interpretation of a decision by the US Supreme Court in the 1950 Eisentrager case, in which the Supreme Court determined that no habeas petition should be honored if the prisoners concerned are seized, tried, and held in territory that is outside of the sovereignty of the US and outside the territorial jurisdiction of any court of the US. Both conditions apply to Guantanamo according to Philbin and Yoo. Approvingly, they quote the US Attorney General in 1929, who stated that Guantanamo is “a mere governmental outpost beyond our borders.” A number of cases, quoted by the authors, “demonstrate that the United States has consistently taken the position that [Guantanamo Bay] remains foreign territory, not subject to US sovereignty.” Guantanamo is indeed land leased from the state of Cuba, and therefore in terms of legal possession and formal sovereignty still part of Cuba. But Philbin and Yoo acknowledge a problem with the other condition: namely that the territory is outside the US’s jurisdiction. They claim with certainty that Guantanamo “is also outside the ‘territorial jurisdiction of any court of the United States.’” However, the Supreme Court should not have made a distinction between jurisdiction and sovereignty here; the wording of the decision is really, Philbin and Yoo believe, an inaccurate reflection of its intent: “an arguable imprecision in the Supreme Court’s language.” For that reason, they call for caution. “A non-frivolous argument might be constructed, however, that [Guantanamo Bay], while not be part of sovereign territory of the United States, is within the territorial jurisdiction of a federal court.” [US Department of Justice, 12/28/2001 pdf file]

Entity Tags: John C. Yoo, Alberto R. Gonzales, Patrick F. Philbin, William J. Haynes

Timeline Tags: Torture of US Captives, Civil Liberties

Sometime in early 2002, President Bush signs a secret executive order authorizing the National Security Agency (NSA) to wiretap phone conversations and read e-mails to and from US citizens. The order extends an operation set into motion at least as early as October 2001 to begin wiretapping US citizens’ phones in a response to the 9/11 attacks. When the program is revealed by the US media in late 2005 (see December 15, 2005), Bush and his officials will say the program is completely legal, though it ignores the requirements of the Foreign Intelligence Surveillance Act (FISA) that requires the government to obtain court-issued warrants to mount surveillance against US citizens. They will insist that only those suspected of having ties to al-Qaeda are monitored, and only when those individuals make or receive international communications. [New York Times, 12/15/2005; Washington Post, 12/22/2005; Newsweek, 12/22/2008] Bush’s order authorizes the NSA to monitor international telephone conversations and international e-mails of hundreds, and perhaps thousands, of US citizens without court warrants, in an effort to track what officials call “dirty numbers” linked to al-Qaeda. When the program is finally revealed by the New York Times over three years later (see December 15, 2005), officials will say that the NSA still seeks warrants to monitor domestic communications. But there is little evidence of this (see, for example, Spring 2001). The presidential order is a radical shift in US surveillance and intelligence-gathering policies, and a major realignment for the NSA, which is mandated to only conduct surveillance abroad. Some officials believe that the NSA’s domestic eavesdropping crosses constitutional limits on legal searches. “This is really a sea change,” a former senior official who specializes in national security law will say in December 2005. “It’s almost a mainstay of this country that the NSA only does foreign searches.” [New York Times, 12/15/2005] Some sources indicate that NSA domestic surveillance activities, such as data-mining, the use of information concerning US persons intercepted in foreign call monitoring, and possibly direct surveillance of US persons, took place prior to 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001).

Entity Tags: George W. Bush, Al-Qaeda, Foreign Intelligence Surveillance Court, National Security Agency

Timeline Tags: Civil Liberties

John Yoo, a neoconservative lawyer in the Justice Department’s Office of Legal Counsel serving as deputy assistant attorney general, writes a classified memo to senior Pentagon counsel William J. Haynes, titled “Application of Treaties and Law to al-Qaeda and Taliban Detainees.” [New York Times, 5/21/2004]
Yoo: Geneva Conventions Do Not Apply in War on Terror - Yoo’s memo, written in conjunction with fellow Justice Department lawyer Robert Delahunty, echoes arguments by another Justice Department lawyer, Patrick Philbin, two months earlier (see November 6, 2001). Yoo states that, in his view, the laws of war, including the Geneva Conventions, do not apply to captured Taliban or al-Qaeda prisoners, nor do they apply to the military commissions set up to try such prisoners.
Geneva Superseded by Presidential Authority - Yoo’s memo goes even farther, arguing that no international laws apply to the US whatsoever, because they do not have any status under US federal law. “As a result,” Yoo and Delahunty write, “any customary international law of armed conflict in no way binds, as a legal matter, the president or the US armed forces concerning the detention or trial of members of al-Qaeda and the Taliban.” In essence, Yoo and Delahunty argue that President Bush and the US military have carte blanche to conduct the global war on terrorism in any manner they see fit, without the restrictions of law or treaty. However, the memo says that while the US need not follow the rules of war, it can and should prosecute al-Qaeda and Taliban detainees for violating those same laws—a legal double standard that provokes sharp criticism when the memo comes to light in May 2004 (see May 21, 2004). Yoo and Delahunty write that while this double standard may seem “at first glance, counter-intuitive,” such expansive legal powers are a product of the president’s constitutional authority “to prosecute the war effectively.” The memo continues, “Restricting the president’s plenary power over military operations (including the treatment of prisoners)” would be “constitutionally dubious.” [Mother Jones, 1/9/2002; US Department of Justice, 6/9/2002 pdf file; Newsweek, 5/21/2004; New York Times, 5/21/2004]
Overriding International Legal Concerns - Yoo warns in the memo that international law experts may not accept his reasoning, as there is no legal precedent giving any country the right to unilaterally ignore its commitment to Geneva or any other such treaty, but Yoo writes that Bush, by invoking “the president’s commander in chief and chief executive powers to prosecute the war effectively,” can simply override any objections. “Importing customary international law notions concerning armed conflict would represent a direct infringement on the president’s discretion as commander in chief and chief executive to determine how best to conduct the nation’s military affairs.” [Savage, 2007, pp. 146] The essence of Yoo’s argument, a Bush official later says, is that the law “applies to them, but it doesn’t apply to us.” [Newsweek, 5/21/2004] Navy general counsel Alberto Mora later says of the memo that it “espoused an extreme and virtually unlimited theory of the extent of the president’s commander-in-chief authority.” [Savage, 2007, pp. 181]
White House Approval - White House counsel and future Attorney General Alberto Gonzales agrees (see January 25, 2002), saying, “In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.” [Mother Jones, 1/9/2002]
Spark for Prisoner Abuses - Many observers believe that Yoo’s memo is the spark for the torture and prisoner abuses later reported from Iraq’s Abu Ghraib prison (see Evening November 7, 2003), Guantanamo Bay (see December 28, 2001), and other clandestine prisoner detention centers (see March 2, 2007). The rationale is that since Afghanistan is what Yoo considers a “failed state,” with no recognizable sovereignity, its militias do not have any status under any international treaties. [Newsweek, 5/21/2004; Newsweek, 5/24/2004]
Resistance from Inside, Outside Government - Within days, the State Department will vehemently protest the memo, but to no practical effect (see January 25, 2002).

Entity Tags: Patrick F. Philbin, Robert J. Delahunty, US Department of Justice, Office of Legal Counsel (DOJ), Taliban, John C. Yoo, Colin Powell, Geneva Conventions, Al-Qaeda, George W. Bush, Alberto Mora, US Department of State, Alberto R. Gonzales, William J. Haynes

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

Justice Department lawyer John Yoo sends a classified memo to White House counsel Alberto Gonzales. The contents of the memo will remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo is about the Geneva Conventions. [American Civil Liberties Union [PDF], 1/28/2009 pdf file]

Entity Tags: US Department of Justice, Alberto R. Gonzales, American Civil Liberties Union, John C. Yoo, Office of Legal Counsel (DOJ)

Timeline Tags: Civil Liberties

Justice Department lawyers John Yoo and Robert Delahunty send a classified memo to the chief legal adviser for the State Department, William Howard Taft IV. The contents of the memo will remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo concerns the Justice Department’s interpretation of the War Crimes Act. According to Yoo and Delahunty, the War Crimes Act does not allow the prosecution of accused al-Qaeda and Taliban suspects. Yoo will cite this memo in a 2003 memo concerning the military interrogation of so-called enemy combatants (see March 14, 2003). [American Civil Liberties Union [PDF], 1/28/2009 pdf file]

Entity Tags: Office of Legal Counsel (DOJ), American Civil Liberties Union, John C. Yoo, William Howard Taft IV, US Department of Justice, War Crimes Act, US Department of State

Timeline Tags: Civil Liberties

John Bellinger, the White House’s chief national security counsel, sends his supervisor, National Security Adviser Condoleezza Rice, what he thinks is a private memo with a blunt warning about the legality of the proposal to ignore the Geneva Conventions in interrogating terror suspects (see January 18-25, 2002). The proposal, Bellinger writes, will place Bush in direct breach of international law and threaten the most fundamental cooperation from allied governments. Faxes from other governments, even Britain, have been pouring into the State Department warning that they cannot turn over suspects to the US if the Bush administration withdraws from accepted legal norms. The Bellinger memo quickly finds its way into Vice President Cheney’s office, to Bellinger’s chagrin; Cheney is reportedly “concerned” about Belliger’s advice. Bellinger does not know until now that any documents prepared for Rice are always “routed outside the formal process” to Cheney. The reverse does not apply. Bellinger is unaware of just how systematically he is being cut out of the decision-making process. [Ledger (Lakeland FL), 10/24/2004; Washington Post, 6/24/2007]

Entity Tags: Condoleezza Rice, Bush administration (43), John Bellinger, US Department of State, Geneva Conventions, Richard (“Dick”) Cheney

Timeline Tags: Torture of US Captives, Civil Liberties

Jay Bybee, the head of the Justice Department’s Office of Legal Counsel (OLC), and OLC lawyer John Yoo send a memo to White House counsel Alberto Gonzales and Defense Department chief counsel William Haynes. Known as the “Treaties and Laws Memorandum,” the document addresses the treatment of detainees captured in Afghanistan, and their eventual incarceration at Guantanamo and possible trial by military commissions. The memo asserts that the Geneva Conventions do not apply to al-Qaeda detainees, and the president has the authority to deny Taliban members POW status. The document goes on to assert that the president is not bound by international laws such as the Geneva Conventions because they are neither treaties nor federal laws. [US Department of Justice, 1/22/2002 pdf file; American Civil Liberties Union [PDF], 1/28/2009 pdf file]

Entity Tags: Office of Legal Counsel (DOJ), John C. Yoo, Jay S. Bybee, US Department of Justice

Timeline Tags: Torture of US Captives, Civil Liberties, War in Afghanistan

John Yoo, a lawyer in the Justice Department’s Office of Legal Counsel (OLC), sends a classified memo to White House counsel Alberto Gonzales. The contents of the memo will remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo is about the Geneva Conventions and is applicable to prisoners of war. Yoo’s boss, OLC head Jay Bybee, sends another secret memo about the Geneva Conventions to Deputy Attorney General Larry Thompson. [American Civil Liberties Union [PDF], 1/28/2009 pdf file]

Entity Tags: Jay S. Bybee, American Civil Liberties Union, Geneva Conventions, US Department of Justice, John C. Yoo, Office of Legal Counsel (DOJ), Larry D. Thompson

Timeline Tags: Civil Liberties

Jay Bybee, the chief of the Justice Department’s Office of Legal Counsel (OLC), issues a classified memo to William Howard Taft IV, the chief counsel of the State Department, titled “The President’s Power as Commander in Chief to Transfer Captive Terrorists to the Control and Custody of Foreign Nations.” The memo, actually written by Bybee’s deputy John Yoo, says Congress has no authority to block the president’s power to unilaterally transfer detainees in US custody to other countries. In essence, the memo grants President Bush the power to “rendition” terror suspects to countries without regard to the law or to Congressional legislation, as long as there is no explicit agreement between the US and the other nations to torture the detainees. [US Department of Justice, 3/12/2002 pdf file; Savage, 2007, pp. 148; American Civil Liberties Union [PDF], 1/28/2009 pdf file; New York Times, 3/2/2009] The memo directly contradicts the 1988 Convention Against Torture (see October 21, 1994), which specifically forbids the transfer of prisoners in the custody of a signatory country to a nation which practices torture. Once the treaty was ratified by Congress in 1994, it became binding law. But Yoo and Bybee argue that the president has the authority as commander in chief to ignore treaties and laws that supposedly interfere with his power to conduct wartime activities. [Savage, 2007, pp. 148-149] In 2009, when the memos are made public (see March 2, 2009), Jennifer Daskal of Human Rights Watch says she is shocked at the memo: “That is [the Office of Legal Counsel] telling people how to get away with sending someone to a nation to be tortured. The idea that the legal counsel’s office would be essentially telling the president how to violate the law is completely contrary to the purpose and the role of what a legal adviser is supposed to do.” [Washington Post, 3/3/2009]

Entity Tags: John C. Yoo, Jay S. Bybee, Office of Legal Counsel (DOJ), US Department of Justice

Timeline Tags: Civil Liberties

Justice Department lawyer Patrick Philbin sends a classified memo to Daniel Bryant, a lawyer with the Justice Department’s Office of Legal Counsel, concerning the “Swift Justice Authorization Act.” The memo states that Congress has no power to interfere with President Bush’s authority to act as commander in chief to control US actions during wartime, including Bush’s authority to promulgate military commissions to try and sentence suspected terrorists and other detainees taken by the US as part of its “war on terror.” Philbin’s colleague, OLC lawyer John Yoo, will cite this memo in his 2003 memo concerning the military interrogation of so-called enemy combatants (see March 14, 2003). [US Department of Justice, 4/8/2002 pdf file; American Civil Liberties Union [PDF], 1/28/2009 pdf file] The memo will be made public in early 2009 (see March 2, 2009).

Entity Tags: Office of Legal Counsel (DOJ), Patrick F. Philbin, US Department of Justice, Daniel Bryant, John C. Yoo

Timeline Tags: Civil Liberties

In a memo to Attorney General John Ashcroft, Jay Bybee, the head of the Justice Department’s Office of Legal Counsel (OLC), says that the US has the absolute right to detain US citizen Jose Padilla without charge and without legal representation (see May 8, 2002). Bybee also claims that the Posse Comitatus Act, which prevents the US military from operating inside the US itself, “poses no bar to the military’s operations in detaining Padilla.” [US Department of Justice, 6/8/2002 pdf file; American Civil Liberties Union [PDF], 1/28/2009 pdf file] The day after this memo is issued, Padilla is classified as an “enemy combatant” and transferred to the US Naval Brig in Charleston, South Carolina (see June 9, 2002).

Entity Tags: Jose Padilla, Jay S. Bybee, John Ashcroft, US Department of Justice, Posse Comitatus Act, Office of Legal Counsel (DOJ)

Timeline Tags: Civil Liberties

John Yoo, a lawyer with the Office of Legal Counsel (OLC), sends a classified memo to Daniel J. Bryant, another OLC lawyer. Yoo concludes that the Constitution “vests full control of the military operations of the United States to the president,” and denies Congress any role in overseeing or influencing such operations. The memo is consisent with an earlier Justice Department memo (see April 8, 2002). Yoo will cite this memo in his 2003 memo concerning the military interrogation of so-called enemy combatants (see March 14, 2003). [US Department of Justice`, 6/27/2002 pdf file; American Civil Liberties Union [PDF], 1/28/2009 pdf file] The memo ignores the Non-Detention Act, which states, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress.” [ProPublica, 4/16/2009] It will be made public in early 2009 (see March 2, 2009).

Entity Tags: John C. Yoo, Daniel Bryant, Office of Legal Counsel (DOJ), US Department of Justice

Timeline Tags: Civil Liberties

John Yoo, a lawyer with the Office of Legal Counsel (OLC), sends a classified memo to White House counsel Alberto Gonzales. The memo’s contents will remain secret, but the American Civil Liberties Union (ACLU) will learn that the memo regards the 1984 Convention Against Torture. According to the memo, the first fifteen articles of the Convention, ratified by the United States almost a decade before, “are non-self executing and place no affirmative obligations on the executive branch.” Furthermore, international law in general “lacks domestic legal effect, and in any event can be overridden by the president,” the memo states. In essence, Yoo concludes that the Convention can be ignored by the president. Yoo will cite this memo in his 2003 memo concerning the military interrogation of so-called enemy combatants (see March 14, 2003). [United Nations High Commissioner for Human Rights, 12/10/1984; American Civil Liberties Union [PDF], 1/28/2009 pdf file; ProPublica, 4/16/2009]

Entity Tags: John C. Yoo, Alberto R. Gonzales, American Civil Liberties Union, Convention Against Torture, Bush administration (43), US Department of Justice, Office of Legal Counsel (DOJ)

Timeline Tags: Civil Liberties

Justice Department lawyer John Yoo, of the Office of Legal Counsel (OLC), signs off on a secret opinion that approves a long, disturbing list of harsh interrogation techniques proposed by the CIA. The list includes waterboarding, a form of near-drowning that some consider mock execution, and which has been prosecuted as a war crime in the US since at least 1901. The list only forbids one proposed technique: burying a prisoner alive (see February 4-5, 2004). Yoo concludes that such harsh tactics do not fall under the 1984 Convention Against Torture (see October 21, 1994 and July 22, 2002) because they will not be employed with “specific intent” to torture. Also, the methods do not fall under the jurisdiction of the International Criminal Court because “a state cannot be bound by treaties to which it has not consented”; also, since the interrogations do not constitute a “widespread and systematic” attack on civilian populations, and since neither Taliban nor al-Qaeda detainees are considered prisoners of war (see February 7, 2002), the ICC has no purview. The same day that Yoo sends his memo, Yoo’s boss, OLC chief Jay Bybee, sends a classified memo to the CIA regarding the interrogation of al-Qaeda members and including information detailing “potential interrogation methods and the context in which their use was contemplated” (see August 1, 2002). [US Department of Justice, 8/1/2002; Washington Post, 6/25/2007; American Civil Liberties Union [PDF], 1/28/2009 pdf file] Yoo will later claim that he warns White House lawyers, as well as Vice President Cheney and Defense Secretary Donald Rumsfeld, that it would be dangerous to allow military interrogators to use the harshest interrogation techniques, because the military might overuse the techniques or exceed the limitations. “I always thought that only the CIA should do this, but people at the White House and at [the Defense Department] felt differently,” Yoo will later say. Yoo’s words are prophetic: such excessively harsh techniques will be used by military interrogators at Guantanamo, Abu Ghraib, and elsewhere. [Washington Post, 6/25/2007]

Entity Tags: US Department of Defense, Richard (“Dick”) Cheney, Bush administration (43), Central Intelligence Agency, Convention Against Torture, Donald Rumsfeld, Office of Legal Counsel (DOJ), US Department of Justice, John C. Yoo

Timeline Tags: Torture of US Captives, Civil Liberties

The Office of Legal Counsel (OLC)‘s John Yoo sends a classified memo to Attorney General John Ashcroft. The contents of the memo remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo’s subject is the legality of certain communications intelligence activities. [American Civil Liberties Union [PDF], 1/28/2009 pdf file]

Entity Tags: US Department of Justice, American Civil Liberties Union, John Ashcroft, John C. Yoo, Office of Legal Counsel (DOJ)

Timeline Tags: Civil Liberties

Assistant Attorney General William Moschella informs the ranking members of the House and Senate Intelligence committees of the administration’s use of potentially unconstitutional data mining and electronic surveillance programs after the 9/11 attacks. Moschella tells the lawmakers, “The president determined that it was necessary following September 11 to create an early-warning detection system” to prevent more attacks. One such program is the Novel Intelligence from Massive Data (NIMD) initiative (see After September 11, 2001). Moschella echoes the claims of National Security Agency director Michael Hayden and other administration officials, saying that the Foreign Intelligence Surveillance Act (FISA), which allows the government to obtain warrants to conduct domestic eavesdropping or wiretapping, “could not have provided the speed and agility required for the early-warning detection system.” [National Journal, 1/20/2006]
Domestic Surveillance Began Before 9/11? - Though Bush officials eventually admit to beginning surveillance of US citizens only after the 9/11 attacks, that assertion is disputed by evidence suggesting that the domestic surveillance program began well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002). Moschella informs the lawmakers of none of this.

Entity Tags: Senate Intelligence Committee, William E. Moschella, Michael Hayden, Bush administration (43), Foreign Intelligence Surveillance Act, Novel Intelligence from Massive Data, House Intelligence Committee

Timeline Tags: Civil Liberties

The Justice Department sends a legal memorandum to the Pentagon that claims federal laws prohibiting torture, assault, maiming, and other crimes do not apply to military interrogators questioning al-Qaeda captives because the president’s authority as commander in chief overrides the law. The 81-page memo, written by the Office of Legal Counsel’s John Yoo, is not publicly revealed for over five years (see April 1, 2008).
President Can Order Maiming, Disfigurement of Prisoners - Yoo writes that infractions such as slapping, shoving, and poking detainees do not warrant criminal liability. Yoo goes even farther, saying that the use of mind-altering drugs can be used on detainees as long as they do not produce “an extreme effect” calculated to “cause a profound disruption of the senses or personality.” [John C. Yoo, 3/14/2003 pdf file; Washington Post, 4/2/2008] Yoo asks if the president can order a prisoner’s eyes poked out, or if the president could order “scalding water, corrosive acid or caustic substance” thrown on a prisoner. Can the president have a prisoner disfigured by slitting an ear or nose? Can the president order a prisoner’s tongue torn out or a limb permanently disabled? All of these assaults are noted in a US law prohibiting maiming. Yoo decides that no such restrictions exist for the president in a time of war; that law does not apply if the president deems it inapplicable. The memo contains numerous other discussions of various harsh and tortuous techniques, all parsed in dry legal terms. Those tactics are all permissible, Yoo writes, unless they result in “death, organ failure, or serious impairment of bodily functions.” Some of the techniques are proscribed by the Geneva Conventions, but Yoo writes that Geneva does not apply to detainees captured and accused of terrorism. [Washington Post, 4/6/2008]
'National Self-Defense' - Yoo asserts that the president’s powers as commander in chief supersede almost all other laws, even Constitutional provisions. “If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al-Qaeda terrorist network,” Yoo writes. “In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.… Even if an interrogation method arguably were to violate a criminal statute, the Justice Department could not bring a prosecution because the statute would be unconstitutional as applied in this context.” Interrogators who harmed a prisoner are protected by a “national and international version of the right to self-defense.” He notes that for conduct during interrogations to be illegal, that conduct must “shock the conscience,” an ill-defined rationale that will be used by Bush officials for years to justify the use of waterboarding and other extreme interrogation methods. Yoo writes, “Whether conduct is conscience-shocking turns in part on whether it is without any justification,” explaining that that it would have to be inspired by malice or sadism before it could be prosecuted.
Memo Buttresses Administration's Justifications of Torture - The Justice Department will tell the Defense Department not to use the memo nine months later (see December 2003-June 2004), but Yoo’s reasoning will be used to provide a legal foundation for the Defense Department’s use of aggressive and potentially illegal interrogation tactics. The Yoo memo is a follow-up and expansion to a similar, though more narrow, August 2002 memo also written by Yoo (see August 1, 2002). Defense Secretary Donald Rumsfeld will suspend a list of aggressive interrogation techniques he had approved, in part because of Yoo’s memo, after an internal revolt by Justice Department and military lawyers (see February 6, 2003, Late 2003-2005 and December 2003-June 2004). However, in April 2003, a Pentagon working group will use Yoo’s memo to endorse the continued use of extreme tactics. [John C. Yoo, 3/14/2003 pdf file; Washington Post, 4/2/2008; New York Times, 4/2/2008]
Justice Department Claims Attorney General Knows Nothing of Memo - Yoo sends the memo to the Pentagon without the knowledge of Attorney General John Ashcroft or Ashcroft’s deputy, Larry Thompson, senior department officials will say in 2008. [Washington Post, 4/4/2008]

Entity Tags: US Department of Justice, John C. Yoo, Larry D. Thompson, Al-Qaeda, Office of Legal Counsel (DOJ), Donald Rumsfeld, John Ashcroft, Geneva Conventions, US Department of Defense

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

Senator John D. Rockefeller.Senator John D. Rockefeller. [Source: ViewImages.com]John D. Rockefeller (D-WV), the ranking member of the Senate Intelligence Committee, learns of the secret NSA warrantless wiretapping program against US citizens (see Early 2002) in a secret briefing for himself, the chairman of the committee, and the chairman and ranking member of the House Intelligence Committee. Hours later, Rockefeller sends a handwritten letter to Vice President Cheney expressing his concerns about the potential illegality of the program, concerns he apparently expressed in the briefing as well. Rockefeller will not release the letter publicly until December 19, 2005, four days after the New York Times publishes an article revealing the program’s existence (see December 15, 2005). Disturbed both by the information he was given and the information that was obviously being withheld, Rockefeller writes in part: “Clearly the activities we discussed raise profound oversight issues.… Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own [Cheney had prohibited Rockefeller and the three other lawmakers in the briefing from consulting with their staff experts], I feel unable to fully evaluate, much less endorse these activities. As I reflected on the meeting today, and the future we face, John Poindexter’s TIA [Total Information Awareness (see March 2002)] project sprung to mind, exacerbating my concern regarding the direction the administration is moving with regard to security, technology, and surveillance. Without more information and the ability to draw on any independent legal or technical expertise, I simply cannot satisfy lingering concerns raised by the briefing we received.” [Democratic Party, 12/19/2005; Savage, 2007, pp. 115] Rockefeller also notes that he is not at liberty to do anything about his concerns, since he is legally bound to obey the secrecy rules the White House has invoked, but he wants his concerns noted. [Savage, 2007, pp. 116] It is unclear whether Rockefeller ever receives a reply. Rockefeller is apparently unaware of evidence showing that domestic surveillance may have begun well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002).

Entity Tags: New York Times, Richard (“Dick”) Cheney, John D. Rockefeller, John Poindexter, Total Information Awareness, National Security Agency

Timeline Tags: Civil Liberties

The new head of the Justice Department’s Office of Legal Counsel (OLC), Jack Goldsmith, begins an internal review of the legality of the NSA’s warrantless wiretapping program (see December 15, 2005). The program is kept so secret that only four Justice officials even have access to information about its inner workings, a pattern of poor consultation he will call “the biggest legal mess I have ever encountered” when he testifies to the Senate about the program four years later (see October 2, 2007). Neither Attorney General John Ashcroft nor Justice’s top legal counsel know much about the program. When Goldsmith begins his legal review, the White House initially refuses to brief Deputy Attorney General James Comey about it. Goldsmith later testifies that he cannot find “a legal basis for some aspects of the program.” Upon completing the review, Goldsmith declares the program illegal, with the support of Ashcroft and Comey. However, White House officials are irate at Goldsmith’s findings. [Washington Post, 10/20/2007]

Entity Tags: Alberto R. Gonzales, Bush administration (43), Office of Legal Counsel (DOJ), US Department of Justice, John Ashcroft, James B. Comey Jr., Jack Goldsmith, National Security Agency

Timeline Tags: Civil Liberties

The White House and the Justice Department are at odds over the legality of the National Security Agency’s “data mining” program, which involves the NSA combing through enormous electronic databases containing personal information about millions of US citizens, ostensibly for anti-terrorism purposes and often without court warrants (see February 2001, Spring 2001, After September 11, 2001, After September 11, 2001, October 2001, and Early 2002). Such data mining by the NSA potentially threatens citizens’ constitutional right to privacy. This clash between the White House and the Justice Department is one of the reasons that White House counsel Alberto Gonzales and chief of staff Andrew Card will try to pressure Attorney General John Ashcroft, while Ashcroft is recuperating from surgery, to reauthorize the NSA program over the objections of Deputy Attorney General James Comey. That attempt to force reauthorization over Justice Department complaints will result in the protest resignations of Ashcroft, Comey, and other Justice officials (see March 10-12, 2004). In 2007, Gonzales will deny that any such attempt to pressure Ashcroft to overrule Comey ever happened (see July 24, 2007), and will deny that there was any such dispute between the White House and Justice Department over the NSA program. Those denials will lead to calls to investigate Gonzales for perjury (see May 16, 2007). In late 2005, President Bush will admit, after the New York Times reveals the existence of the NSA warrantless wiretapping program (see Early 2002), that the program indeed exists, but will not acknowledge the data mining. Several current and former administration officials, interviewed by reporters in 2007, refuse to go into detail about the dispute between the White House and Justice Department, but say that it involves other issues along with the data mining. They will also refuse to explain what modifications to the surveillance program Bush will authorize to mollify Justice Department officials. Bush and his officials, including Gonzales, who will ascend to the position of attorney general in 2005, will repeatedly insist that he has the authority, both under the Constitution and under Congress’s authorization to use military force against terrorists passed after the 9/11 attacks (see September 14-18, 2001), to bypass the requirements for court warrants to monitor US citizens. Critics will say that such surveillance is illegal under the Foreign Intelligence Surveillance Act. [New York Times, 7/29/2007]
Domestic Surveillance Began Before 9/11? - Though Bush officials eventually admit to beginning surveillance of US citizens only after the 9/11 attacks, that assertion is disputed by evidence suggesting that the domestic surveillance program began well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002).

Entity Tags: US Department of Justice, National Security Agency, New York Times, James B. Comey Jr., Alberto R. Gonzales, Andrew Card, Bush administration (43), George W. Bush, John Ashcroft

Timeline Tags: Civil Liberties

Thomas Tamm.Thomas Tamm. [Source: Newsweek]Thomas Tamm, a veteran Justice Department prosecutor with a high-level security clearance, is finishing up a yearlong post with the Office of Intelligence Policy and Review (OIPR), a Justice Department unit handling wiretaps of suspected terrorists and spies. As his stint is coming to a close, Tamm learns of the existence of a highly classified National Security Agency (NSA) program that is electronically eavesdropping on American citizens—domestic wiretapping. He later learns that “the program,” as it is referred to by those few who know of it at all, is called “Stellar Wind.”
Concealment from FISA Judges - Tamm learns that the NSA program is being hidden from the Foreign Intelligence Surveillance Act (FISA) Court, a panel of federal judges who by law must approve and supervise such surveillance for intelligence purposes. OIPR lawyers ask the FISA Court for permission to implement national-security wiretaps. But, Tamm learns, some wiretaps—signed only by Attorney General John Ashcroft—are going to the chief FISA Court judge and not the other ten judges on the FISA panel. The “AG-only” requests are extraordinarily secretive, and involve information gleaned from what is only referred to as “the program”—Stellar Wind. Only a very few White House and US intelligence officials know the name and the nature of “the program.” Stellar Wind involves domestic wiretaps on telephones and computer e-mail accounts derived from, but not necessarily linked to, information secured from captured al-Qaeda computers and cell phones overseas. With the voluntary cooperation of American telecommunications companies (see 1997-August 2007 and After, February 2001, February 2001, and February 2001 and Beyond), the NSA program also collects vast amounts of personal data about US citizens’ phone and e-mail communications. The program also collects an enormous amount of financial information from the Treasury Department (see February 28, 2006), all collected as part of the NSA’s “data mining” efforts (see Late 1999 and After September 11, 2001).
Program Is 'Probably Illegal,' Says DOJ Official - Tamm, suspicious about the unusual requests, asks his supervisors about the program, and is told to drop the subject. “[N]o one wanted to talk about it,” he will recall. Tamm asks one of his supervisors, Lisa Farabee, “Do you know what the program is?” Farabee replies: “Don’t even go there.… I assume what they are doing is illegal.” Tamm is horrified. His first thought, he will later recall, is, “I’m a law enforcement officer and I’m participating in something that is illegal?” Tamm soon finds out from deputy OIPR counsel Mark Bradley that the chief FISA judge, Colleen Kollar-Kotelly, is raising unwanted questions about the warrant requests (see 2004 and 2005), and “the AG-only cases are being shut down.” Bradley adds, “This may be [a time] the attorney general gets indicted.”
Request for Guidance Turned Down - For weeks, Tamm agonizes over what to do. He seeks guidance from a former colleague, Sandra Wilkinson, who now works on the Senate Judiciary Committee. The two have coffee in the Senate cafeteria, and Tamm asks Wilkinson to ask if anyone on the committee knows anything about “the program.” Weeks go by without a response, and Tamm sends Wilkinson an e-mail from his OIPR computer—an e-mail that will later alert the FBI to Tamm’s interest in Stellar Wind. During a second conversation, Wilkinson refuses to give Tamm any information. “Well, you know, then,” he replies, “I think my only option is to go to the press.”
Contacting the New York Times - Tamm finally decides to contact the New York Times’s Eric Lichtblau, who has written several stories on the Justice Department that impressed Tamm. By this point he has transferred out of OIPR and back into a Justice Department office that would allow him to return to the courtroom. Tamm calls Lichtblau from a pay phone near the US District Courthouse in Washington. “My whole body was shaking,” he will recall. He identifies himself only as “Mark” (his middle name), and arranges to meet Lichtblau at a bookstore near the Justice Department. (In his 2008 book Bush’s Law: The Remaking of American Justice, Lichtblau describes Tamm as “a walk-in” source who was “agitated about something going on in the intelligence community.” Lichtblau will describe Tamm as wary and “maddeningly vague,” but as they continue to meet—usually in bookstores and coffee shops in the Capitol District—Tamm’s “credibility and his bona fides became clear and his angst appears sincere. Eighteen months later, after finally overriding a request and warning from President Bush not to print the story (see December 6, 2005), the Times reports on the existence of the NSA program (see December 15, 2005). [Ars Technica, 12/16/2008; Newsweek, 12/22/2008]

Entity Tags: Mark Bradley, Federal Bureau of Investigation, Eric Lichtblau, Colleen Kollar-Kotelly, Bush administration (43), ’Stellar Wind’, Foreign Intelligence Surveillance Court, Lisa Farabee, Senate Judiciary Committee, Thomas Tamm, Sandra Wilkinson, Office of Intelligence Policy and Review, New York Times, US Department of the Treasury, National Security Agency, US Department of Justice, John Ashcroft

Timeline Tags: Civil Liberties

Vice President Dick Cheney gives the Congressional leaders known as the “Gang of Eight”—the House speaker and House minority leader, the Senate majority and minority leaders, and the ranking members of the House and Senate intelligence committees—their first briefing on the NSA’s warrantless wiretapping program (see Early 2002). The Democratic leaders at the meeting are House Minority Leader Nancy Pelosi (D-CA), Senate Minority Leader Tom Daschle (D-SD), House Intelligence Committee ranking member Jane Harman (D-CA), and Senate Intelligence Committee ranking member John D. Rockefeller (D-WV). Daschle (D-SD) later recalls the meeting as superficial. Cheney “talked like it was something routine,” Daschle will say. “We really had no idea what it was about.” Unbeknownst to many of the Congressional leaders, White House and Justice Department leaders are locked in a sharp dispute over whether or not the program is legal and should be continued; Cheney is preparing to send White House counsel Alberto Gonzales and chief of staff Andrew Card to Attorney General John Ashcroft’s hospital room to persuade the gravely ill, heavily sedated Ashcroft to overrule acting Attorney General James Comey and reauthorize the program (see March 10-12, 2004). The briefing is designed to give the appearance of Congressional approval for the program. While most Republicans in the briefing give at least tacit approval of the program, some Democrats, as Daschle will recall, expressed “a lot of concerns” over the program’s apparent violation of fundamental Congressional rights. Pelosi later recalls that she “made clear my disagreement with what the White House was asking.” But administration officials such as Gonzales will later say (see July 24, 2007) that the eight Congressional leaders are in “consensus” in supporting the program, a characterization that is patently false (see July 25, 2007). Gonzales will also later testify that today’s briefing does not cover the NSA wiretapping program, later dubbed the “Terrorist Surveillance Program” (TSP), another apparent falsehood contradicted by Democratic senators such as Rockefeller and Russ Feingold, as well as testimony and notes on the hospital room visit made by FBI Director Robert Mueller and a memo from John Negroponte, the director of national intelligence. Many feel that Gonzales is using the moniker “Terrorist Surveillance Program,” not in use until December 2005, to play what reporter Michael Isikoff calls “verbal parsing” and “a semantic game”—since the NSA wiretapping program is not known by this name at the time of the Congressional briefing, Gonzales will imply that the briefing wasn’t about that program. [Newsweek, 8/6/2007; Klein, 2009, pp. 88]
Cheney, Gonzales: Democrats on Board with Illegal Program - In Angler: The Cheney Vice Presidency, a 2008 book by Washington Post reporter Barton Gellman, Gonzales will claim there is a “consensus in the room” among Democrats and Republicans alike, and according to Gellman’s reporting on Gonzales, “four Democrats and four Republicans, duly informed that the Justice Department had ruled something unlawful, said the White House should do it anyway.” Cheney will confirm this allegation during a December 2008 appearance on Fox News. [Klein, 2009, pp. 88]
Domestic Surveillance Began before 9/11? - Cheney fails to inform the lawmakers that the wiretapping program may have begun well before the 9/11 attacks (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002).

Entity Tags: Richard (“Dick”) Cheney, National Security Agency, Robert S. Mueller III, Terrorist Surveillance Program, Tom Daschle, US Department of Justice, Russell D. Feingold, Nancy Pelosi, John Negroponte, John D. Rockefeller, Alberto R. Gonzales, Andrew Card, Michael Isikoff, Bush administration (43), Jane Harman, James B. Comey Jr., “Gang of Eight”, John Ashcroft

Timeline Tags: Civil Liberties

President Bush meets privately with acting Attorney General James Comey to discuss the Justice Department’s refusal to reauthorize the administration’s warrantless wiretapping program (see Late September, 2001). (Comey will later refuse to discuss the conversation during testimony before Congress.) After the meeting, Bush meets privately with FBI Director Robert Mueller, Comey’s partner in opposing the program (see March 10-12, 2004). After his meeting, Mueller tells Comey, “[W]e have the president’s direction to do what we believed, what the Justice Department believed was necessary to put this matter on a footing where we could certify its legality.” Author and reporter Charlie Savage will later write, “Comey, [Office of Legal Counsel chief Jack] Goldsmith, and their colleagues spent the next several weeks making a series of undisclosed changes to the warrantless surveillance program—during which time the original program continued to operate, even though the president had been told it was illegal.” Outside experts will later speculate that Comey and Goldsmith had constrained the program’s scope by imposing stricter controls on who can be monitored without a warrant. Some will decide that the program now monitors only communications specifically suspected to have a connection to al-Qaeda, not the more general “suspected terrorism” communications. They will also speculate that the authorization for the program now relies on Congress’s Authorization to Use Military Force (AUMF—see September 14-18, 2001), not the president’s inherent authority as commander in chief. But, Savage will write, the program still allows wiretapping without a judge’s approval, and therefore is still illegal. [Savage, 2007, pp. 188]

Entity Tags: George W. Bush, Charlie Savage, US Department of Justice, Robert S. Mueller III, James B. Comey Jr., Jack Goldsmith

Timeline Tags: Civil Liberties

Attorney general nominee Alberto R. Gonzales, currently serving as chief White House counsel, tells the Senate Judiciary Committee during his confirmation hearings that there had been some discussion within the administration about trying to rewrite the Geneva Conventions. While he is committed to “ensuring that the United States government complies with all of its legal obligations as it fights the war on terror, whether those obligations arise from domestic or international law,” he says, “these obligations include, of course, honoring the Geneva Conventions wherever they apply.” However, he adds: “We are fighting a new type of enemy and a new type of war. Geneva was ratified in 1949… and I think it is appropriate to revisit whether or not Geneva should be revisited. Now I’m not suggesting that the principles of Geneva regarding basic treatment—basic decent treatment of human beings—should be revisited.… That should always be the basis on which we look at this. But I am aware there’s been some very preliminary discussion as to whether or not—is this something that we ought to look at.” [Los Angeles Times, 1/7/2005; Savage, 2007, pp. 209]
Questioned about Involvement in Torture - During the hearing, Gonzales is grilled on his involvement in the administration’s decision to allow aggressive interrogations of terrorism detainees. Critics believe the interrogation policy developed by Gonzales and his colleagues created the conditions that allowed abuses, such as those at Abu Ghraib, to occur. Senator Edward Kennedy tells Gonzales, “It appears that legal positions that you have supported have been used by the administration, the military, and the CIA to justify torture and Geneva Convention violations by military and civilian personnel.” [Associated Press, 1/6/2006] Retired Admiral John Hutson, a former Navy judge advocate general (JAG) who testifies as a witness at the hearing, says, “I believe that the prisoners’ abuses that we’ve seen… found their genesis in the decision to get cute with the Geneva convention.” [Reuters, 1/7/2005]
Lack of Understanding of International Law - At certain points during the hearing, Gonzales demonstrates an apparent lack of understanding about US and international law. When he is asked if he thinks other world leaders can legitimately torture US citizens, he answers, “I don’t know what laws other world leaders would be bound by.” On another occasion he is asked whether “US personnel [can] legally engage in torture under any circumstances,” to which he answers, “I don’t believe so, but I’d want to get back to you on that.” He is also asked whether he agrees with John Ashcroft’s judgment that torture should not be used because it produces nothing of value. Gonzales responds, “I don’t have a way of reaching a conclusion on that.” [Washington Post, 1/7/2005]

Entity Tags: John D. Hutson, John Ashcroft, Alberto R. Gonzales, Edward M. (“Ted”) Kennedy

Timeline Tags: Torture of US Captives, Civil Liberties

The Senate Judiciary Committee brings in several experts to expand upon the testimony of attorney general nominee Alberto Gonzales (see January 6, 2005 and January 6, 2005). One of the most outspoken critics is Yale Law School dean Harold Koh. Koh had worked in the Justice Department’s Office of Legal Counsel (OLC) under Ronald Reagan, and later served as assistant secretary of state for democracy, human rights, and labor in the Clinton administration. He is a vocal critic of the Bush administration’s detention policies at Guantanamo and elsewhere. Koh had once worked closely with OLC lawyer John Yoo, the author of numerous torture memos (see October 4, 2001, November 6-10, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24-26, 2002, March 13, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and March 14, 2003) and opinions expanding the power of the president (see September 21, 2001, September 25, 2001, September 25, 2001, October 23, 2001, October 23, 2001, and June 27, 2002), but now, without explicitly mentioning Yoo by name, he repudiates his former student’s legal positions. Gonzales worked closely with Yoo to craft the administration’s positions on wiretapping, torture, the inherent power of the president, and other issues. “Having worked in both Democratic and Republican administrations, and for more than two years as an attorney in the Office of Legal Counsel, I am familiar with how legal opinions like this are sought and drafted,” Koh states. “I further sympathize with the tremendous pressures of time and crisis that government lawyers face while drafting such opinions. Nevertheless, in my professional opinion, the August 1, 2002 OLC memorandum [drafted by Yoo at Gonzales’s behest—see August 1, 2002] is perhaps the most clearly erroneous legal opinion I have ever read.” The August 1 memo, as well as other opinions by Yoo and Gonzales, “grossly overreads the inherent power of the president” as commander in chief, Koh testifies. The memos raise profound questions about the legal ethics of everyone involved—Gonzales, Yoo, and others in the Justice Department and White House. “If a client asks a lawyer how to break the law and escape liability, the lawyer’s ethical duty is to say no,” Koh testifies. “A lawyer has no obligation to aid, support, or justify the commission of an illegal act.” [Senate Judiciary Committee, 1/7/2005 pdf file; Savage, 2007, pp. 211-212]

Entity Tags: Senate Judiciary Committee, US Department of Justice, Harold Koh, Alberto R. Gonzales, Bush administration (43), John C. Yoo, Office of Legal Counsel (DOJ)

Timeline Tags: Civil Liberties

New York Times headline from article revealing NSA surveillance.New York Times headline from article revealing NSA surveillance. [Source: CBS News]The New York Times reveals that after the 9/11 attacks, President Bush granted the National Security Agency (NSA) secret authorization to eavesdrop on Americans and others inside the US without going through the Foreign Intelligence Surveillance Act (FISA) court to obtain legal warrants (see Early 2002. The administration justifies its actions by claiming such eavesdropping, which includes wiretapping phones and reading e-mails, is necessary to find evidence of terrorist activities, and says the nation needs the program after the 9/11 attacks exposed deficiencies in the US intelligence community’s information gathering process, and because of what they characterize as the “handcuffing” of US intelligence agencies by restrictive laws. The Times has had the article for over a year; the White House prevailed on the Times not to publish its findings for that time, arguing that publication would jeopardize continuing investigations and warn potential terrorists that they were under scrutiny. Many believe that the White House wanted to delay the publication of the article until well after the 2004 presidential elections. The Times delayed publication for over a year, and agreed to suppress some information that administration officials say could be useful to terrorists. (Less than two weeks before the article is published, Bush tries to convince the Times not to print the article at all: see December 6, 2005.) Two days after the Times publishes its article, Bush will acknowledge the order, and accuse the Times of jeopardizing national security (see December 17, 2005). The NSA program eavesdrops without warrants on up to 500 people in the US at any given time, officials say; the overall numbers have likely reached into the thousands. Overseas, up to 7,000 people suspected of terrorist ties are being monitored. Officials point to the discovery of a plot by Ohio trucker and naturalized US citizen and alleged al-Qaeda supporter Iyman Faris to bring down the Brooklyn Bridge with blowtorches as evidence of the program’s efficacy. They also cite the disruption of an al-Qaeda plot to detonate fertilizer bombs outside of British pubs and train stations by the program. But, officials say, most people targeted by the NSA for warrantless wiretapping have never been charged with a crime, and many are targeted because of questionable evidence and groundless suspicion. Many raise an outcry against the program, including members of Congress, civil liberties groups, immigrant rights groups, and others who insist that the program undermines fundamental Constitutional protections of US citizens’ civil liberties and rights to privacy. Several other government programs to spy on Americans have been challenged, including the Federal Bureau of Investigation (FBI)‘s surveillance of US citizens’ library and Internet usage, the monitoring of peaceful antiwar protests, and the proposed use of public and private databases to hunt for terrorist links. In 2004, the Supreme Court overturned the administration’s claim that so-called “enemy detainees” were not entitled to judicial review of their indefinite detentions. Several senior officials say that when the warrantless wiretapping program began, it operated with few controls and almost no oversight outside of the NSA itself. The agency is not required to seek the approval of the Justice Department or anyone else outside the FISA court for its surveillance operations. Some NSA officials wanted nothing to do with a program they felt was patently illegal, according to a former senior Bush administration official. Internal concerns about the program prompted the Bush administration to briefly suspend the program while Justice Department officials audited it and eventually provided some guidelines for its operations. A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees the FISA Court, helped spur the suspension, according to officials. Kollar-Kotelly questioned whether information obtained under the program was being improperly used as the basis for FISA wiretap warrant requests from the Justice Department. Some government lawyers say that the Justice Department may have deliberately misled Kollar-Kotelly and the FISA court about the program in order to keep the program under wraps. The judge insisted to Justice Department officials that any material gathered under the program not be used in seeking wiretap warrants from her court. The question also arose in the Faris case, when senior Justice Department officials worried that evidence obtained by warrantless wiretapping by the NSA of Faris could be used in court without having to lie to the court about its origins. [New York Times, 12/15/2005]

Entity Tags: US Supreme Court, George W. Bush, US Department of Justice, Iyman Faris, National Security Agency, New York Times, Al-Qaeda, Foreign Intelligence Surveillance Court, Colleen Kollar-Kotelly

Timeline Tags: Civil Liberties

President Bush acknowledges that he issued a 2002 executive order authorizing the National Security Agency (NSA) to wiretap US citizens’ phones and e-mails without proper warrants, and accuses the New York Times of jeopardizing national security by publishing its December 15 article (see Early 2002 and December 15, 2005). Bush says he was within the law to issue such an order, which many feel shatters fundamental Constitutional guarantees of liberty and privacy, but accuses the Times of breaking the law by publishing the article. Bush tells listeners during his weekly radio address that the executive order is “fully consistent” with his “constitutional responsibilities and authorities.” But, he continues, “Yesterday the existence of this secret program was revealed in media reports, after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk.” He admits allowing the NSA to “to intercept the international communications of people with known links to al-Qaeda and related terrorist organizations” in a program designed to “detect and prevent terrorist attacks.” Under the law, the NSA must obtain warrants from the Foreign Intelligence Surveillance Act (FISA) Court, but after Bush’s executive order, it was no longer required to do so. Bush justifies the order by citing the example of two 9/11 hijackers, Khalid Almihdhar and Nawaf Alhazmi, who, he says, “communicated while they were in the United States to other members of al-Qaeda who were overseas, but we didn’t know they were here until it was too late.” Because of the unconstitutional wiretapping program, it is “more likely that killers like these 9/11 hijackers will be identified and located in time, and the activities conducted under this authorization have helped detect and prevent possible terrorist attacks in the United States and abroad.” Bush also admits to reauthorizing the program “more than thirty times,” and adds, “I intend to do so for as long as our nation faces a continuing threat from al-Qaeda and related groups.” [CNN, 12/16/2005] Bush fails to address the likelihood that the domestic surveillance program began well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002).

Entity Tags: National Security Agency, George W. Bush, Khalid Almihdhar, Foreign Intelligence Surveillance Act, Nawaf Alhazmi, Al-Qaeda

Timeline Tags: Civil Liberties

Former Senate Majority Leader Tom Daschle (D-SD) writes that Congress explicitly rejected several attempts by the Bush administration to provide him with war-making authority and the authority to wiretap and monitor US citizens “in the United States” when it approved the September 18, 2001 authorization to use military force (AUMF) against terrorists (see September 14-18, 2001). Instead, the Bush administration merely usurped that authority and launched—or expanded (see Spring 2001)—its warrantless wiretapping program, conducted by the NSA. Since then, the Bush administration and the Justice Department have both repeatedly asserted that the AUMF gave them the right to conduct the wiretapping program, an assertion that Daschle says is flatly wrong. On December 21, the Justice Department admitted in a letter that the October 2001 presidential order authorizing warrantless eavesdropping on US citizens did not comply with “the ‘procedures’ of” the law that has regulated domestic espionage since 1978, known as the Foreign Intelligence Surveillance Act (FISA). FISA established a secret intelligence court and made it a criminal offense to conduct electronic surveillance without a warrant from that court, “except as authorized by statute.” However, the letter, signed by Assistant Attorney General William Moschella, argues that the AUMF gave the administration the authority to conduct the program. [Washington Post, 12/22/2005] The letter continues the argument that Congress gave President Bush the implict authority to create an exception to FISA’s warrant requirements, though the AUMF resolution did not mention surveillance and made no reference to the president’s intelligence-gathering authority. The Bush administration kept the program secret until it was revealed by the New York Times on December 15, 2005. Moschella argues that secret intelligence-gathering, even against US citizens, is “a fundamental incident to the use of military force” and that its absence from the resolution “cannot be read to exclude this long-recognized and essential authority to conduct communications intelligence targeted at the enemy.” Such eavesdropping, he argued, must by necessity include conversations in which one party is in the United States. [William Moschella, 12/22/2005 pdf file] Daschle, one of the primary authors of the resolution, says that Moschella and the Bush administration are wrong in their assertions: “I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al-Qaeda did not believe that they were also voting for warrantless domestic surveillance” (see September 12-18, 2001). [Washington Post, 12/23/2005]

Entity Tags: National Security Agency, Bush administration (43), Authorization to Use Military Force (AUMF), Al-Qaeda, Foreign Intelligence Surveillance Act, George W. Bush, Osama bin Laden, US Department of Justice, Foreign Intelligence Surveillance Court, New York Times, William E. Moschella, Richard (“Dick”) Cheney, Tom Daschle

Timeline Tags: Civil Liberties

Chart showing NSA surveillance network.Chart showing NSA surveillance network. [Source: NSA Watch] (click image to enlarge)The National Security Agency has built a far larger database of information collected from warrantless surveillance of telephone and Internet communications to and from US citizens than the NSA or the Bush administration has acknowledged (see October 2001). On December 15, the New York Times exposed the NSA’s program (see December 15, 2005), which was authorized by President Bush in early 2002 (see Early 2002), but which actually began far earlier (see Spring 2001). The NSA built its database with the cooperation of several major American telecommunications firms (see June 26, 2006), and much of the information was mined directly into the US telecommunications system’s major connections. Many law enforcement and judicial officials question the legality of the program (see May 12, 2006 and December 18, 2005), and many say the program goes beyond the bounds of the Foreign Intelligence Surveillance Act (see 1978). One question is whether the FISA Court, or FISC, can authorize monitoring of international communications that pass through US-based telephonic “switches,” which handle much of the US’s electronic communications traffic. “There was a lot of discussion about the switches” in conversations with FISC, says a Justice Department official. “You’re talking about access to such a vast amount of communications, and the question was, How do you minimize something that’s on a switch that’s carrying such large volumes of traffic? The court was very, very concerned about that.” While Bush and his officials have insisted that the warrantless wiretaps only target people with known links to al-Qaeda, they have not acknowledged that NSA technicials have not only eavesdropped on specific conversations between people with no known links to terrorism, but have combed through huge numbers of electronic communications in search of “patterns” that might point to terrorism suspects. Such “pattern analysis” usually requires court warrants before surveillance can begin, but in many cases, no such warrants have been obtained or even requested. Other, similar data-mining operations, such as the Total Information Awareness program, developed by the Defense Department to track terror suspects (see March 2002), and the Department of Homeland Security’s CAPPS program, which screened airline passengers (see (6:20 a.m.-7:48 a.m.) September 11, 2001), were subjected to intense public scrutiny and outrage, and were publicly scrapped. The Bush administration has insisted that it has no intention of scrapping the NSA’s warrantless wiretapping program, because, as its officials have said, it is necessary to identify and track terrorism suspects and foil terrorist plots before they can be hatched. Administration officials say that FISC is not quick enough to respond to its need to respond to potential terrorist acts. A former technology manager at a major telecommunications company says that after 9/11, the leading telecom firms have been storing information on calling patterns and giving it to the federal government to aid in tracking possible terrorists. “All that data is mined with the cooperation of the government and shared with them, and since 9/11, there’s been much more active involvement in that area,” says the former manager. “If they get content, that’s useful to them too, but the real plum is going to be the transaction data and the traffic analysis. Massive amounts of traffic analysis information—who is calling whom, who is in Osama Bin Laden’s circle of family and friends—is used to identify lines of communication that are then given closer scrutiny.” And, according to a government expert on communications privacy who used to work at the NSA, says that in the last few years, the government has quietly encouraged the telecom firms to rout more international traffic through its US-based switches so it can be monitored. Such traffic is not fully addressed by 1970s-era laws that were written before the onset of modern communications technology; neither does FISA adequately address the issues surrounding that technology. Computer engineer Phil Karn, who works for a major West Coast telecom firm, says access to those switches is critical: “If the government is gaining access to the switches like this, what you’re really talking about is the capability of an enormous vacuum operation to sweep up data.” [New York Times, 12/24/2005]

Entity Tags: US Department of Defense, US Department of Justice, Total Information Awareness, New York Times, US Department of Homeland Security, Computer Assisted Passenger Prescreening System, Bush administration (43), Foreign Intelligence Surveillance Act, Foreign Intelligence Surveillance Court, George W. Bush, National Security Agency, Phil Karn

Timeline Tags: Civil Liberties

The National Security Agency’s ‘Trailblazer’ program (see Late 1999), envisioned in 1999 as an overarching state-of-the-art data-mining system capable of sorting through millions of telephone and Internet communications and pluck out items relevant to national security and counterterrorism, is an abject failure, according to multiple sources and reports. The program has soaked up six years of effort and $1.2 billion in taxpayer dollars, with nothing to show except some schematic drawings and a few isolated technological and analytical gadgets, and little hope of much future progress. Matthew Aid, who has advised three federal commissions and panels investigating the 9/11 attacks, says that Trailblazer is “the biggest boondoggle going on now in the intelligence community.” Part of the problem is that over its six years of development, Trailblazer has passed through three separate NSA divisions, each with its own priorities and design goals. Its overseers have failed to exert the proper authority to clearly define the program’s goals and keep the project on track. In 2003, the NSA’s inspector general found that the program suffered from “inadequate management and oversight” of private contractors and overpayment for the work that was done. The lead private contractor for the project, Science Applications International Corporation (SAIC), has not provided the technical and managerial expertise necessary to create the system. While the Bush administration has touted the NSA wiretapping program (see December 15, 2005) as vital to protecting the nation from terrorism, it allows the agency to mismanage Trailblazer, in essence allowing the agency to go increasingly “deaf” as millions of items of unimportant information overwhelm the agency’s ability to sort out key bits of information, according to a government official. A Congressional investigation of intelligence failures surrounding the 9/11 attacks found that the NSA did not sift out “potentially vital” information that could have predicted or even prevented the attacks—a lapse that Trailblazer was intended to correct. Aid says that the problem is akin to searching for a needle in a haystack that doubles in size every few months. Intelligence experts say that the problem with Trailblazer is like deciding whether to keep a piece of mail or throw it out based only on what is on the outside of the envelope. Approximately 95% of the information gathered by the NSA is discarded without ever being translated from its original binary form; the remaining 5% is turned into plain text for human analysts to survey. Trailblazer was designed to sort through this information to identify patterns, keywords, and links to other data. The program would, in theory, translate all of the information into plain text or voice data, analyze the results to identify items of interest, store the results in an easily searchable database, and forward selected items to the appropriate analysts for follow-up. But after six years of work, there will still be no consensus among agency managers and experts as how to create a system to do this. Interestingly, another, less grandiose program, code-named Thinthread, appeared promising—a 2004 Pentagon report found that Thinthread could work better and be put to use more quickly than Trailblazer—but NSA managers disagreed with the Pentagon report and canceled Thinthread. Instead, Hayden pushed the agency to get Trailblazer up and running after the 9/11 attacks, cutting into time needed for review and corrections. Internal and external warnings that the program was going off-course were ignored; because of its secrecy and technological sophistication, neither Congress nor the NSA was able to effectively monitor the progress of the program’s development. And the agency lost track of much of the $1.2 billion that was allocated by Congress for the program. NSA Inspector General Joel Brenner blames the waste and inefficiency on “inadequate management and oversight.” As of 2006, the Government Accountability Office, the investigative arm of Congress, has not investigated Trailblazer simply because no one in Congress had asked it to. Because of the impact of the 9/11 attacks, and the war in Iraq, Congress has never seriously considered cutting back or reviewing any programs such as Trailblazer that might provide information on further terrorist attacks. [Baltimore Sun, 1/29/2006]

Entity Tags: Matthew Aid, Bush administration (43), Joel Brenner, Trailblazer, US Department of Defense, Government Accountability Office, Michael Hayden, Thinthread, National Security Agency, Science Applications International Corporation (SAIC)

Timeline Tags: Civil Liberties

President Bush’s rationale for authorizing warrantless surveillance against US citizens is of questionable legality and “may represent an exercise of presidential power at its lowest ebb,” according to a Congressional analysis. The Congressional Research Service (CRS), the independent and nonpartisan research bureau of the legislature, answers the question raised around the nation since the revelation of the secret program by the New York Times (see Early 2002): did Bush break the law when he ordered the National Security Agency to eavesdrop on US citizens without court orders or judicial oversight? The CRS report does not give a definitive yes or no answer to that question, but finds Bush’s legal rationale dubious at best. That rationale “does not seem to be as well-grounded” as administration lawyers have claimed, and the report finds that, despite assertions to the contrary by Bush and administration officials, Congress did not authorize warrantless wiretaps when it gave the executive branch the authority to wage war against al-Qaeda in the days after the 9/11 attacks. Unsurprisingly, Bush administration officials criticize the report. But some Republicans and Democrats find the report’s conclusions persuasive, and hold up the report as further evidence that Bush overextended his authority by authorizing the wiretaps. For instance, Republican Thomas Kean, the former chairman of the 9/11 commission (see January 27, 2003, says he doubts the program’s legality. Kean, who has not spoken publicly about the program until now, says the 9/11 commission was never told about the program, and he strongly doubts its legality. “We live by a system of checks and balances, and I think we ought to continue to live by a system of checks and balances,” Kean says. [Congressional Research Service, 1/5/2006 pdf file; New York Times, 1/6/2006]

Entity Tags: George W. Bush, 9/11 Commission, Congressional Research Service, New York Times, National Security Agency, Thomas Kean

Timeline Tags: Civil Liberties

John Yoo’s ‘The Powers of War and Peace.’John Yoo’s ‘The Powers of War and Peace.’ [Source: University of Maryland]Libertarian law professor Cass Sunstein reviews a recent book by former Bush legal adviser John Yoo, who authored several of the Bush administration’s most controversial legal opinions concerning terrorism and executive power (see September 21, 2001, September 25, 2001, September 25, 2001, October 4, 2001, October 23, 2001, October 23, 2001, November 2, 2001, November 6-10, 2001, November 15, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24, 2002, January 24-26, 2002, March 13, 2002, April 8, 2002, June 27, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and October 11, 2002). Yoo’s book, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11, is a compendium of his pre-9/11 academic writings that landed him his job at the Justice Department’s Office of Legal Counsel. Sunstein notes that Yoo, perhaps more than any other single legal scholar, has reshaped the government’s legal stance on any number of issues. He argued for the president’s unilateral ability to declare war without the approval of Congress, the use of “enhanced interrogation techniques” on suspected terrorists, the withdrawal of essential civil liberties and legal rights from suspected terrorists and enemy collaborators, the right of the administration to electronically eavesdrop on the American citizenry without judicial consent or oversight, the ability to ignore or withdraw from international treaties without congressional approval, and more besides. Sunstein writes: “[T]aken as a whole, the claims of the Bush administration may be properly regarded as an effort to create a distinctive set of constitutional understandings for the post-September 11 era. The White House is attempting to create a kind of 9/11 Constitution. A defining feature of these understandings is a strong commitment to inherent presidential authority over national security, including a belief that in crucial domains the president can act without congressional permission, and indeed cannot be checked by congressional prohibitions.” Yoo is a key figure in that effort. Sunstein calls his work interesting but completely one-sided, simply ignoring “the mountainous counter-evidence” against most of his constitutional claims. “Yoo’s reading would require us to ignore far too many statements by prominent figures in the founding generation,” Sunstein writes. “There are not many issues on which James Madison, Thomas Jefferson, John Marshall, Alexander Hamilton, George Washington, James Wilson, John Adams, and Pierce Butler can be said to agree. Were all of them wrong?” Sunstein concludes: “[W]ith respect to war, there is no reason for a 9/11 Constitution. The old one, read in the light of our traditions, will do just fine.” [New Republic, 1/9/2006; Savage, 2007, pp. 81-82]

Entity Tags: Bush administration (43), Office of Legal Counsel (DOJ), John C. Yoo, Cass Sunstein

Timeline Tags: Civil Liberties

The Justice Department (DOJ) issues a 42-page “white paper” detailing its arguments that the National Security Agency’s warrantless wiretapping program (see February 2001, Spring 2001, After September 11, 2001, After September 11, 2001, October 2001, Early 2002, September 2002, Late 2003-Early 2004, April 19-20, 2004, June 9, 2005, June 9, 2005, December 15, 2005, December 17, 2005, December 19, 2005, December 24, 2005, January 5, 2006, January 18, 2006, January 18, 2006, January 23, 2006, and January 30, 2006) is legal. The DOJ reiterates two previous arguments (see December 19, 2005 and December 21-22, 2005)—that Congress implicitly authorized the program in 2001 when it authorized the Bush administration to begin military actions against al-Qaeda (see September 14-18, 2001), and that the president has the authority as commander in chief to conduct such a program—even though these arguments have been thoroughly refuted (see January 9, 2006) and overridden by the Supreme Court’s recent Hamdan v. Rumsfeld ruling (see December 15, 2005 and July 8, 2006). In its paper, the DOJ declares that if necessary, it will attack the legality of the Foreign Intelligence Surveillance Act (FISA) in order to stop that law from “imped[ing]” the president’s power to order domestic surveillance. In essence, according to columnist and civil liberties lawyer Glenn Greenwald, the DOJ is asserting that the president’s powers are limitless as long as he or she declares a given action necessary to battle terrorism. “Because the president has determined that the NSA activities are necessary to the defense of the United States from a subsequent terrorist attack in the armed conflict with al-Qaeda, FISA would impermissibly interfere with the president’s most solemn constitutional obligation—to defend the United States against foreign attack,” the DOJ claims. Neither Congress nor the court system has the right to limit or even review the president’s powers, according to the DOJ. Greenwald calls the DOJ’s argument “a naked theory of limitless presidential power.” In fact, Greenwald argues, the DOJ is asserting that FISA itself is unconstitutional, because no law can in any way limit the president’s power to conduct foreign policy or protect the nation’s security. The document is part of a larger Bush administration defense of the USA Patriot Act, and part of the administration’s push to convince Congress to reauthorize that legislation. Attorney General Alberto Gonzales sends the document to Congress. Justice Department official Steven Bradbury says, “When it comes to responding to external threats to the country… the government would like to have a single executive who could act nimbly and agilely.” [US Department of Justice, 1/19/2006 pdf file; Glenn Greenwald, 1/20/2006; Washington Post, 1/20/2006]
Dubious Legality - The program has already been found to be of questionable legality by two reports recently released by the nonpartisan Congressional Research Service (see January 5, 2006 and January 18, 2006). And author James Bamford, a US intelligence expert who has written extensively about the NSA, says that the Justice Department’s arguments are specious in light of Congress’s clear intent in its 1978 passage of FISA to block warrantless wiretapping, and its demonstrated lack of intent to allow any such operations within US borders in the October 2001 legislation. “You could review the entire legislative history in the authorization to use military force and I guarantee you won’t find one word about electronic surveillance,” he says. “If you review the legislative history of FISA, you will find Attorney General Griffin Bell testifying before the intelligence committee saying this was specifically passed to prevent a president from claiming inherent presidential powers to do this again.” [Washington Post, 1/20/2006]
Self-Contradictory Justifications - In 2007, author and reporter Charlie Savage will write of the “shaky foundation” supporting the administration’s “two-pronged attacks on critics of the wiretapping program and the Patriot Act,” which some officials have claimed authorizes the program. “Beneath the simplistic rhetoric, the administration’s position was self-contradicting,” Savage will write. If Bush has the inherent presidential authority to order warrantless wiretapping, then he needs no authorization from the Patriot Act or any other legislation. But if Congress is endangering the nation by delaying in reauthorizing the Patriot Act and thusly not rendering the program legal, then the wiretapping program is illegal after all. The memo attempts to “paper… over” this problem by claiming that, while Bush has the inherent authority to do whatever he feels is necessary to protect the country, the Patriot Act’s extra police powers are still necessary in “contexts unrelated to terrorism.” Savage will write, “In other words, the administration’s own position, hidden in the fine print, was that the Patriot Act was superfluous and irrelevant to the war on terrorism—a somewhat absurd stance made necessary by their desire to say the wiretapping program was legal.” [Savage, 2007, pp. 315]
Failure to Address Probable Beginning of Program Before Attacks - The Justice Department says nothing about the program apparently beginning well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002).

Entity Tags: National Security Agency, James Bamford, Steven Bradbury, US Department of Justice, Griffin Bell, Senate Judiciary Committee, Glenn Greenwald, Foreign Intelligence Surveillance Act, Alberto R. Gonzales, Arlen Specter, George W. Bush, Congressional Research Service, Charlie Savage

Timeline Tags: Civil Liberties

In an interview with PBS’s Gwen Ifill, Representative Jane Harman (D-CA), the ranking Democrat on the House Intelligence Committee, says she supports the administration’s warrantless wiretapping program (see Spring 2001), a position that places her at odds with most Congressional Democrats. “Well, I said then and I say now that I support the program,” she tells Ifill. Harman is critical of the insider leaks that led to the public divulgance of the program (see December 15, 2005), saying, “Well, I think the leaks have done a lot of damage, and I deplore the leaks of this critical program.” She goes on to complain that the administration “says it adequately oversees this program,” but “the system of checks and balances that we have… requires that Congress as an independent branch of government pass the laws, fund the programs, and oversee how all that works.” In addition to requesting greater cooperation on oversight with Congress, she adds that “the courts need to be cut back in,” and thinks the “entire program” should be brought under the Foreign Intelligence Surveillance Act. [PBS, 2/8/2006] Four days later, Harman reiterates her position on NBC’s Meet the Press. She tells moderator Tim Russert, “If the press was part of the process of delivering classified information, there have to be some limits on press immunity.” Russert asks, “But if [the NSA leak] came from a whistleblower, should the New York Times reporter be prosecuted?” Harman answers: “Well, it’s not clear it was a whistleblower. You have to prove that first. If it’s protected by the whistleblower statute, then it’s protected.… By the way, I deplore that leak. This is a very valuable foreign [intelligence] collection program. I think it is tragic that a lot of our capabilities are now [spread] across the pages of the newspapers.” [MSNBC, 2/12/2006; NewsMax, 2/12/2006]

Entity Tags: Jane Harman, Gwen Ifill, New York Times, House Intelligence Committee, Foreign Intelligence Surveillance Act, Tim Russert

Timeline Tags: Civil Liberties

Senator Russell Feingold (D-WI) tells reporters that he intends to push through legislation that would censure President Bush because of his domestic surveillance program (see February 2001, Spring 2001, After September 11, 2001, After September 11, 2001, October 2001, Early 2002, September 2002, Late 2003-Early 2004, April 19-20, 2004, June 9, 2005, June 9, 2005, December 15, 2005, December 17, 2005, December 19, 2005, December 24, 2005, January 5, 2006, January 18, 2006, January 18, 2006, January 23, 2006, and January 30, 2006). “What the president did by consciously and intentionally violating the Constitution and laws of this country with this illegal wiretapping has to be answered,” Feingold tells an interviewer. “Proper accountability is a censuring of the president, saying, ‘Mr. President, acknowledge that you broke the law, return to the law, return to our system of government.‘… The president has broken the law and, in some way, he must be held accountable.… Congress has to reassert our system of government, and the cleanest and the most efficient way to do that is to censure the president. And, hopefully, he will acknowledge that he did something wrong.” Senate Majority Leader Bill Frist (R-TN) calls Feingold’s proposal “a crazy political move.” The Senate Intelligence Committee, following the Bush administration’s lead, has rejected some Democrats’ call for a full investigation of the surveillance program (see February 1-6, 2006). Instead, the committee has adopted a Republican plan for a seven-member subcommittee to conduct oversight. Feingold says his censure motion is not “a harsh approach, and it’s one that I think should lead to bipartisan support.” Frist, however, says: “I think it, in part, is a political move because here we are, the Republican Party, the leadership in the Congress, supporting the president of the United States as commander in chief who is out there fighting al-Qaeda and the Taliban and Osama bin Laden and the people who have sworn—have sworn—to destroy Western civilization and all the families listening to us.… The signal that it sends that there is in any way a lack of support for our commander in chief who is leading us with a bold vision in a way that we know is making our homeland safer is wrong. And it sends a perception around the world.” Only once in history has a president been censured by Congress: Andrew Jackson in 1834. In the House, Representative John Conyers (D-MI) is exploring the idea of introducing impeachment legislation against Bush. [New York Times, 3/12/2006; Associated Press, 3/12/2006] Feingold says on the Senate floor: “The president has violated the law and Congress must respond. A formal censure by Congress is an appropriate and responsible first step to assure the public that when the president thinks he can violate the law without consequences, Congress has the will to hold him accountable.” Most Congressional Democrats want nothing to do with either Feingold’s or Conyers’s legislative ideas, and some Republicans seem to be daring Democrats to vote for the proposal. Vice President Dick Cheney tells a Republican audience in Feingold’s home state of Wisconsin, “Some Democrats in Congress have decided the president is the enemy.” Democratic leaders in the Senate thwart an immediate vote as requested by Frist, and Senator Richard Durbin (D-IL) says he is not sure the proposal will ever come to a vote. Senate Minority Leader Harry Reid (D-NV) says he does not support it and has not read it. Senator Joseph Lieberman (D-CT) makes a similar assertion. In the House, Minority Leader Nancy Pelosi (D-CA) refuses to support such a proposal, saying in a statement that she “understands Senator Feingold’s frustration that the facts about the NSA domestic surveillance program have not been disclosed appropriately to Congress. Both the House and the Senate must fully investigate the program and assign responsibility for any laws that may have been broken.” [Associated Press, 3/14/2006] Former Nixon aide John Dean testifies in support of Feingold’s censure motion (see March 31, 2006). However, the censure motion, lacking support from Democratic leaders and being used by Republicans as a means to attack Democrats’ patriotism, never comes to a vote. [Klein, 2009, pp. 84]

Entity Tags: Joseph Lieberman, George W. Bush, Bush administration (43), Bill Frist, Harry Reid, John Dean, Russell D. Feingold, Senate Intelligence Committee, Richard (“Dick”) Durbin, Richard (“Dick”) Cheney, Nancy Pelosi, John Conyers

Timeline Tags: Civil Liberties

Steven Calabresi, one of the architects of the ‘unitary executive’ theory, says Bush’s use of signing statements has gone too far.Steven Calabresi, one of the architects of the ‘unitary executive’ theory, says Bush’s use of signing statements has gone too far. [Source: MeFeedia]Legal scholars and constitutional experts decry President Bush’s claim that he can ignore or disobey laws with impunity. An examination by Boston Globe reporter Charlie Savage finds that to date, Bush has claimed the authority to disobey over 750 laws enacted since he took office (see January 20, 2001 and After, After September 11, 2001, January 27, 2002, November 5, 2002, March 12, 2004 and After, November 6, 2003, December 2004, December 17, 2004, Dec. 23, 2004, January 17, 2005, August 8, 2005, October 18, 2005, December 30, 2005, and January 23, 2006). He claims that as president, he has the power to override any statute passed by Congress when it conflicts with his interpretation of the Constitution. While the Constitution assigns Congress the power to write the laws and the president the duty “to take care that the laws be faithfully executed,” Bush asserts that he has no mandate to “execute” a law he believes is unconstitutional. Administration spokespersons have repeatedly said that Bush “will faithfully execute the law in a manner that is consistent with the Constitution,” but it is Bush who decides what is and is not constitutional. Many legal scholars disagree with Bush’s position, and accuse him of attempting to usurp Congressional power for himself.
Philip Cooper - Law professor Phillip Cooper says over the Bush administration’s tenure, it has relentlessly worked to concentrate ever more governmental power into the White House. “There is no question that this administration has been involved in a very carefully thought-out, systematic process of expanding presidential power at the expense of the other branches of government,” Cooper says. “This is really big, very expansive, and very significant.”
Christopher Kelley - Political science professor Christopher Kelley notes that Bush uses signing statements to abrogate Congressional powers in a manner inconsistent with Constitutional mandates. “He agrees to a compromise with members of Congress, and all of them are there for a public bill-signing ceremony, but then he takes back those compromises—and more often than not, without the Congress or the press or the public knowing what has happened,” Kelley says.
David Golove - Law professor David Golove says Bush has besmirched “the whole idea that there is a rule of law” because no one can be certain of which laws Bush thinks are valid and which he thinks he can ignore. “Where you have a president who is willing to declare vast quantities of the legislation that is passed during his term unconstitutional, it implies that he also thinks a very significant amount of the other laws that were already on the books before he became president are also unconstitutional,” Golove says. To the extent that Bush is interpreting the Constitution in defiance of Supreme Court rulings, Golove notes, he threatens to “overturn the existing structures of constitutional law.” When a president ignores the Court and is not restrained by a Congress that enables his usurpations, Golove says, the Constitution can be made to simply “disappear.” Golove adds, “Bush has essentially said that ‘We’re the executive branch and we’re going to carry this law out as we please, and if Congress wants to impeach us, go ahead and try it.’”
Jack Beerman - Law professor Jack Beermann says: “The president is daring Congress to act against his positions, and they’re not taking action because they don’t want to appear to be too critical of the president, given that their own fortunes are tied to his because they are all Republicans. Oversight gets much reduced in a situation where the president and Congress are controlled by the same party.”
Steven Calabresi - Former Justice Department official Steven Calabresi, who came up with the idea of using signing statements to counter Congressional powers during the Reagan administration (see August 23, 1985 - December 1985), now says, “I think what the administration has done in issuing no vetoes and scores of signing statements (see September 2007) is not the right way to approach this.”
Bruce Fein - Former Reagan Justice Department official Bruce Fein says: “This is an attempt by the president to have the final word on his own constitutional powers, which eliminates the checks and balances that keep the country a democracy. There is no way for an independent judiciary to check his assertions of power, and Congress isn’t doing it, either. So this is moving us toward an unlimited executive power.” [Boston Globe, 4/30/2006; Savage, 2007, pp. 243]

Entity Tags: Bush administration (43), Charlie Savage, Christopher Kelley, Jack Beermann, Bruce Fein, David Golove, George W. Bush, Phillip Cooper, Steven Calabresi

Timeline Tags: Civil Liberties

USA Today headline.USA Today headline. [Source: CBS News]USA Today reports that “[t]he National Security Agency (NSA) has been secretly collecting the phone call records of tens of millions of Americans, using data provided by the nation’s three biggest telecommunications providers, AT&T, Verizon, and BellSouth,” according to “people with direct knowledge of the arrangement.” None of the sources would allow USA Today to identify them by name, job, or affiliation. The USA Today story claims that the NSA program “does not involve the NSA listening to or recording conversations,” but does use “the data to analyze calling patterns in an effort to detect terrorist activity,” according to their sources. One source says that the NSA program is compiling “the largest database ever assembled in the world,” with the goal of creating “a database of every call ever made” within US borders. President Bush has said that the NSA program is focused exclusively on international calls, and for the calls to be recorded, “one end of the communication must be outside the United States.” However, this is now shown not to be the case (see January 16, 2004). A US intelligence official says that the NSA program is not recording the actual phone calls themselves, but is collecting what he calls “external” data about the communications to allow the agency to emply “social network analysis” for insight into how terrorist networks are connected with one another. Another large telecommunications company, Qwest, has refused to help the NSA eavesdrop on customer calls (see February 2001, February 2001 and Beyond, and February 27, 2001). USA Today’s sources say that the NSA eavesdropping program began after the 9/11 attacks, a claim that is not bolstered by the facts (see 1997, February 27, 2000, February 27, 2000, December 2000, February 2001, February 2001, February 2001 and Beyond, February 2001, Spring 2001, April 2001, April 4, 2001, July 2001, Before September 11, 2001, and Early 2002). The sources say that the three companies agreed to provide “call-detail records,” lists of their customers’ calling histories, and updates, which would allow the agency to track citizens’ calling habits. In return, the sources say, the NSA offered to pay the firms for their cooperation. After the three firms agreed to help the agency, USA Today writes, “the NSA’s domestic program began in earnest” (see After September 11, 2001, After September 11, 2001, October 2001, September 2002, and Spring 2004). NSA spokesman Don Weber says the agency is operating strictly “within the law,” but otherwise refuses to comment. Former US prosecutor Paul Butler says that the Foreign Intelligence Surveillance Act (FISA), which governs surveillance operations by US intelligence agencies, “does not prohibit the government from doing data mining” (see 1978). White House press spokesman Dana Perino says, “There is no domestic surveillance without court approval,” and all surveillance activities undertaken by government agencies “are lawful, necessary, and required for the pursuit of al-Qaeda and affiliated terrorists.” All government-sponsored intelligence activities “are carefully reviewed and monitored,” she adds, and says that “all appropriate members of Congress have been briefed on the intelligence efforts of the United States” (see October 11, 2001 and October 25, 2001 and November 14, 2001). Don Weber, a senior spokesman for the NSA, refuses to discuss the agency’s operations, saying: “Given the nature of the work we do, it would be irresponsible to comment on actual or alleged operational issues; therefore, we have no information to provide. However, it is important to note that NSA takes its legal responsibilities seriously and operates within the law.” All three firms released similar comments saying that they would not discuss “matters of national security,” but were complying with the law in their alleged cooperation with the NSA. The Electronic Frontier Foundation (EFF) is suing AT&T for what it calls its complicity in the NSA’s “illegal” domestic surveillance program (see January 31, 2006). [USA Today, 5/11/2006]

Entity Tags: Verizon Communications, USA Today, Qwest, Paul Butler, Foreign Intelligence Surveillance Act, Jane Harman, AT&T, BellSouth, National Security Agency, Dana Perino, Don Weber

Timeline Tags: Civil Liberties

Ira Winkler.Ira Winkler. [Source: Canadian Broadcasting Corporation]Former NSA analyst Ira Winkler, author of the 2005 book Spies Among Us, writes of his disgust with the NSA’s domestic surveillance program, saying that because it is warrantless, it is illegal. He argues the program violates both the NSA’s rules of engagement and its long-term missions.
Warrantless Surveillance is Illegal - Securing warrants under the Foreign Intelligence Surveillance Act is easily done, Winkler says: “FISA blocks no legitimate acquisition of knowledge. It doesn’t even slow the process down.” The problem, Winkler says, is that the program is so large that securing FISA warrants for every communication the NSA monitors “would [take] an army of lawyers to get all the warrants they’d need to be in compliance with FISA.” However: “[T]he law is the law. No president has the right to pick and choose which laws they find convenient to follow.” President Bush could have asked Congress to amend the FISA laws: “After all, after 9/11 Congress passed a wide variety of laws (without, for the most part, reading them) that were supposed to prevent another attack. They could have easily slipped something modifying FISA into all of that legislation. They did not, though recent revelations about this administration’s use of signing statements may indicate that they simply didn’t want to raise the possibility of questions.” Merely ignoring FISA “is illegal,” Winkler writes.
Weakens National Security - Another issue is national security. Not obtaining warrants actually weakens natural security, he argues, “since the process of obtaining the warrants has an effect on quality control.” For example: “To date, FBI agents have been sent out to do thousands of investigations based on this warrantless wiretapping. None of those investigations turned up a legitimate lead. I have spoken to about a dozen agents, and they all roll their eyes and indicate disgust with the man-years of wasted effort being put into physically examining NSA ‘leads.’ This scattershot attempt at data mining drags FBI agents away from real investigations, while destroying the NSA’s credibility in the eyes of law enforcement and the public in general. That loss of credibility makes the NSA the agency that cried wolf—and after so many false leads, should they provide something useful, the data will be looked at skeptically and perhaps given lower priority by law enforcement than it would otherwise have been given.” Winkler says the NSA’s claim that it does not retain any personal information is ludicrous. “Frankly, you have to be a complete moron to believe that,” he writes. “It is trivial to narrow down access to a phone number to just a few members of a household, if not in fact to exactly one person.”
Extortion - And the warrantless surveillance is not the only illegal action taken by the government. If the government did threaten one telecom firm, Qwest, for not cooperating (see February 2001), “[t]hat’s extortion—another crime.” Winkler writes that both Congress and the American people must demand answers, or the White House and the NSA will continue to usurp our freedom under the cloak of protecting freedoms.
Arguments For Program are Specious - Winkler says the arguments for the program that he hears are groundless. He hears three main threads:
bullet “I have nothing to worry about so I don’t care if they investigate me.” Winkler points out that plenty of people have been investigated and incarcerated in the US and abroad without doing anything wrong: “I believe that Saddam Hussein would cheerfully agree with the tired allegation that if you did nothing wrong, you shouldn’t mind the government looking at your calls. I think Lenin, Stalin, Hitler and the Chinese government would also agree with that line of thought. Is this the company we consent to keep in the name of safety?”
bullet “[W]e need to do everything we can to protect ourselves.” Protecting ourselves, Winkler argues, means letting law enforcement work to protect US citizens against real, ongoing crimes. The government is “watching for dragons while very real snakes multiply freely in our midst.”
bullet “[T]he NSA isn’t listening to the content of the calls, so there’s no harm.” Aside from the fact that Winkler believes the NSA is lying about not listening to the calls themselves, he says: “[The NSA] doesn’t need to hear your chatter to invade your privacy. By simply tying numbers together—an intelligence discipline of traffic analysis—I assure you I can put together a portrait of your life. I’ll know your friends, your hobbies, where your children go to school, if you’re having an affair, whether you plan to take a trip and even when you’re awake or asleep. Give me a list of whom you’re calling and I can tell most of the critical things I need to know about you.” The NSA is made up of mostly “good and honest people,” but it has “more than its share of bitter, vindictive mid- and senior-level bureaucrats. I would not trust my personal information with these people, since I have personally seen them use internal information against their enemies.” Winkler reminds his readers that the Bush administration deliberately outed CIA agent Valerie Plame Wilson because her husband dared debunk an administration claim about Iraq (see November 20, 2007), and tried to undermine the credibility of former counterterrorism chief Richard Clarke when he spoke out against the administration (see March 24, 2004). The NSA could easily provide the administration with damaging information about other administration enemies.
'Against Everything I Was Taught' - “NSA domestic spying is against everything I was ever taught working at the NSA,” Winkler writes. “I might be more for it if there was any credible evidence that this somehow provides useful information that couldn’t otherwise be had. However, the domestic spying program has gotten so massive that the well-established process of getting a warrant cannot be followed—and quantity most certainly doesn’t translate to quality. Quite the opposite.” The terrorists number in the hundreds, Winkler writes, but “the NSA is collecting data on hundreds of millions of people who are clearly not the enemy. These numbers speak for themselves.” [Computerworld, 5/16/2006]

Entity Tags: Qwest, George W. Bush, Foreign Intelligence Surveillance Act, Federal Bureau of Investigation, Ira Winkler, National Security Agency, Valerie Plame Wilson, Saddam Hussein, Richard A. Clarke, Vladimir Lenin, Josef Stalin

Timeline Tags: Civil Liberties

George Terwilliger, a former deputy attorney general under George H. W. Bush, argues that the current Bush administration’s controversial data mining program (see Late 1999 and After September 11, 2001) is not illegal. Terwilliger tells the conservative National Review, “I think it’s fair to say that the statutes contemplate the transfer of this generic type of data much more on a case-by-case rather than a wholesale basis,” meaning that the law calls for a court order only in cases when the government is making a targeted request for information. But, he adds, “I don’t see anything in the statute that forbids such a wholesale turnover.” Terwilliger’s argument echoes the arguments of the Bush Justice Department, which argues that the data mining program—part of the NSA’s “Stellar Wind” surveillance program (see Spring 2004 and December 15, 2005)—does not technically constitute “electronic surveillance” under the law. Both the Fourth Amendment and the Foreign Intelligence Surveillance Act, as interpreted by the courts, define such actions as “electronic surveillance,” according to a number of legal experts, including law professor Orin Kerr. And, Ars Technica reporter Julian Sanchez notes in 2009, “the Stored Communications Act explicitly makes it a crime to ‘knowingly divulge a record or other information pertaining to a subscriber to or customer of such service… to any governmental entity.’” Sanchez will call Terwilliger’s argument “very strange,” but will note that Terwilliger is the attorney for then-Attorney General Alberto Gonzales and “a prominent defender of the administration’s surveillance policies.” Sanchez will conclude that while the argument “might pass for clever in a high school debate round… [i]t would be deeply unsettling if it [passes] for anything more in the halls of power.” [National Review, 6/5/2006; Ars Technica, 12/16/2008]

Entity Tags: US Department of Justice, Alberto R. Gonzales, ’Stellar Wind’, Bush administration (43), National Security Agency, Foreign Intelligence Surveillance Act, Julian Sanchez, George Terwilliger, Orin S. Kerr

Timeline Tags: Civil Liberties

Lawyers file court documents alleging that the National Security Agency (NSA) worked with AT&T to set up a domestic wiretapping site seven months before the 9/11 attacks. The papers are filed as part of a lawsuit, McMurray v. Verizon Communications, which cites as plaintiffs AT&T, Verizon, and BellSouth customers whose privacy was allegedly violated by the NSA warrantless wiretapping program (see May 12, 2006); it also alleges that the firms, along with the NSA and President Bush, violated the Telecommunications Act of 1934 and the US Constitution. AT&T, Verizon, and BellSouth have been accused of working with the NSA to set up domestic call monitoring sites (see October 2001). Evidence that the NSA set up domestic surveillance operations at least seven months before the 9/11 attacks is at the core of the lawsuit (see Spring 2001). The suit is similar to one filed against AT&T by the Electronic Frontier Foundation (EFF—see January 31, 2006) and other such lawsuits. A lawyer for the plaintiffs in McMurray, Carl Mayer, says: “The Bush administration asserted this [the warrantless wiretapping program] became necessary after 9/11. This undermines that assertion.” AT&T spokesman Dave Pacholczyk responds, “The US Department of Justice has stated that AT&T may neither confirm nor deny AT&T’s participation in the alleged NSA program because doing so would cause ‘exceptionally grave harm to national security’ and would violate both civil and criminal statutes.” Verizon has denied being asked by the NSA for its customer phone records, and has refused to confirm or deny “whether it has any relationship to the classified NSA program.” BellSouth spokesman Jeff Battcher says: “We never turned over any records to the NSA. We’ve been clear all along that they’ve never contacted us. Nobody in our company has ever had any contact with the NSA.” The NSA domestic wiretapping program is known as “Pioneer Groundbreaker,” a part of the larger “Project Groundbreaker” (see February 2001). According to Mayer and his fellow lawyer Bruce Afran, an unnamed former employee of AT&T provided them with information about NSA’s approach to AT&T. (That former employee will later be revealed as retired technician Mark Klein—see Late 2002, July 7, 2009, December 15-31, 2005, and April 6, 2006). The lawsuit is on a temporary hiatus while a judicial panel rules on a government request to assign all of the telecommunications lawsuits to a single judge. [Bloomberg, 6/30/2006]

Entity Tags: Verizon Wireless, US Department of Justice, National Security Agency, George W. Bush, Jeff Battcher, Bruce Afran, BellSouth, AT&T, Mark Klein, Carl Mayer, Electronic Frontier Foundation, Dave Pacholczyk

Timeline Tags: Civil Liberties

Salim Ahmed Hamdan in 1999.Salim Ahmed Hamdan in 1999. [Source: Pubic domain via the New York Times]In the Hamdan v. Rumsfeld case, the Supreme Court rules 5-3 to strike down the Bush administration’s plans to try Guantanamo detainees before military commissions. Ruling in favor of detainee Salim Ahmed Hamdan (see November 8, 2004), the Court rules that the commissions are unauthorized by federal statutes and violate international law. Writing for the majority, Justice John Paul Stevens says, “The executive is bound to comply with the rule of law that prevails in this jurisdiction.” The opinion throws out each of the administration’s arguments in favor of the commissions, including its assertion that Congress had stripped the Supreme Court of the jurisdiction to decide the case. One of the major flaws in the commissions, the Court rules, is that President Bush unilaterally established them without the authorization of Congress. [New York Times, 6/30/2006] During the oral arguments three months before, Hamdan’s lawyer, Neal Katyal, told the Court: “The whole point of this [proceeding] is to say we’re challenging the lawfulness of the tribunal [the military commissions] itself. This isn’t a challenge to some decision that a court makes. This is a challenge to the court itself, and that’s why it’s different than the ordinary criminal context that you’re positing.” [Savage, 2007, pp. 274-275]
Major Defeat for Bush Administration - Civil libertarian and human rights organizations consider the ruling a shattering defeat for the administration, particularly in its assertions of expansive, unfettered presidential authority. Bush says in light of the decision, he will work with Congress to “find a way forward” to implement the commissions. “The ruling destroys one of the key pillars of the Guantanamo system,” says Gerald Staberock, a director of the International Commission of Jurists. “Guantanamo was built on the idea that prisoners there have limited rights. There is no longer that legal black hole.” The ruling also says that prisoners held as “enemy combatants” must be afforded rights under the Geneva Conventions, specifically those requiring humane treatment for detainees and the right to free and open trials in the US legal system. While some form of military trials may be permissible, the ruling states that defendants must be given basic rights such as the ability to attend the trial and the right to see and challenge evidence submitted by the prosecution. Stevens writes that the historical origin of military commissions was in their use as a “tribunal of necessity” under wartime conditions. “Exigency lent the commission its legitimacy, but did not further justify the wholesale jettisoning of procedural protections.” [New York Times, 6/30/2006] In 2007, author and reporter Charlie Savage will write, “Five justices on the Supreme Court said Bush had broken the law.” [Savage, 2007, pp. 275]
Hardline Conservative Justices Dissent - Stevens is joined by Justices David Souter, Stephen Breyer, and Ruth Bader Ginsburg. Justice Anthony Kennedy issues a concurring opinion. Dissenting are Justices Samuel Alito, Antonin Scalia, and Clarence Thomas. Thomas, in a dissent signed by Scalia and Alito, calls the decision “untenable” and “dangerous.” Chief Justice John Roberts recused himself from the case because of his participation in a federal appeals court that ruled in favor of the administration (see November 8, 2004).
Not Charged for Three Years - Hamdan is a Guantanamo detainee from Yemen, captured in Afghanistan in November 2001 and taken to Guantanamo in June 2002. He is accused of being a member of al-Qaeda, in his function as driver and bodyguard for Osama bin Laden. He was not charged with a crime—conspiracy—until mid-2004. [New York Times, 6/30/2006]

Entity Tags: Samuel Alito, US Supreme Court, Salim Ahmed Hamdan, Stephen Breyer, Ruth Bader Ginsburg, John G. Roberts, Jr, Al-Qaeda, Antonin Scalia, Bush administration (43), Center for Constitutional Rights, Anthony Kennedy, John Paul Stevens, David Souter, International Commission of Jurists, Gerald Staberock, Geneva Conventions, Clarence Thomas

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

Judge Vaughn Walker of the US District Court of Northern California rejects a request by the Justice Department to dismiss a lawsuit by the Electronic Frontier Foundation (EFF—see January 31, 2006) against AT&T. The EFF argues that AT&T violated its customers’ privacy by colluding with the National Security Agency (NSA) in that agency’s allegedly illegal domestic wiretapping project. The government has asserted that the lawsuit would jeopardize “state secrets” if permitted to go forward (see May 22, 2006 and June 23, 2006). According to AT&T whistleblower Mark Klein, working with the EFF in the lawsuit, Walker “ridicule[s]” the government’s request for dismissal on state secrets grounds, finding that “[t]he government has opened the door for judicial inquiry by publicly confirming and denying material information about its monitoring of communications content.… AT&T and the government have for all practical purposes already disclosed that AT&T assists the government in monitoring communication content. [T]he government has publicly admitted the existence of a ‘terrorist surveillance program’ (see After September 11, 2001, After September 11, 2001, October 2001, and September 2002).… Considering the ubiquity of AT&T telecommunications services, it is unclear whether this program could even exist without AT&T’s acquiescence and cooperation.” EFF had given Walker the ammunition for his finding by providing him with a raft of media stories about AT&T’s involvement in the NSA surveillance program, as well as media coverage of Klein’s assertions (see April 12, 2006 and May 17, 2006). “The very subject matter of this action is hardly a secret” any longer, Walker finds (see May 24, 2006). “[D]ismissing this case at the outset would sacrifice liberty for no apparent enhancement of security.” Walker also rejects a separate motion to dismiss by AT&T, which had argued that its relationship with the government made it immune from prosecution. Marc Rotenberg of the Electronic Privacy Information Center (EPIC) says: “This cases arises against the backdrop of the accountability of the government as it pursues its surveillance program. This is a significant victory for the principle of government accountability.” AT&T spokesman Walt Sharp refuses to give a direct comment about the ruling, but says that AT&T has always protected its customers’ privacy (see February 2001 and Beyond, February 2001, and Late 2002-Early 2003). The government will obtain a stay of Walker’s ruling while it files an appeal, preventing the EFF documents from being publicly disseminated. [New York Times, 7/21/2006; Klein, 2009, pp. 78-79]

Entity Tags: Mark Klein, AT&T, Electronic Frontier Foundation, Marc Rotenberg, US Department of Justice, Walter Sharp, Vaughn Walker, National Security Agency

Timeline Tags: Civil Liberties

Federal district court judge Anna Diggs Taylor rules that the NSA’s warrantless wiretapping program (see Early 2002) is unconstitutional and orders it ended. She amends her ruling to allow the program to continue while the Justice Department appeals her decision. The decision is a result of a lawsuit filed by the American Civil Liberties Union (ACLU) and other civil liberties groups. Taylor rules that the NSA program violates US citizens’ rights to privacy and free speech, the Constitutional separation of powers among the three branches of government, and the Foreign Intelligence Surveillance Act (see 1978). Taylor writes: “It was never the intent of the framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights. There are no hereditary Kings in America and no powers not created by the Constitution. So all ‘inherent powers’ must derive from that Constitution.” [Verdict in ACLU et al v. NSA et al, 8/17/2006 pdf file; Washington Post, 8/18/2006] The program “violates the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth amendments to the United States Constitution, the FISA and Title III,” Taylor writes, and adds, “[T]he president of the United States… has undisputedly violated the Fourth in failing to procure judicial orders.” [CNN, 8/17/2006]
Judge Lets One Portion Stand - Taylor rejects one part of the lawsuit that seeks information about the NSA’s data mining program (see October 2001), accepting the government’s argument that to allow that portion of the case to proceed would reveal state secrets (see March 9, 1953). Other lawsuits challenging the program are still pending. Some legal scholars regard Taylor’s decision as poorly reasoned: national security law specialist Bobby Chesney says: “Regardless of what your position is on the merits of the issue, there’s no question that it’s a poorly reasoned decision. The opinion kind of reads like an outline of possible grounds to strike down the program, without analysis to fill it in.” The White House and its Republican supporters quickly attack Taylor, who was appointed to the bench by then-President Jimmy Carter, as a “liberal judge” who is trying to advance the agenda of Congressional Democrats and “weaken national security.” For instance, Senator Mike DeWine (R-OH) says that halting the program “would hamper our ability to foil terrorist plots.” [Washington Post, 8/18/2006]
Democrats, Civil Libertarians Celebrate Ruling - But Democrats defend the ruling. For instance, Senator John Kerry (D-MA) says the ruling provides a much-needed check on the unfettered power of the Bush White House. “[N]o one is above the law,” says Kerry. [Washington Post, 8/18/2006] Lawyers for some of the other cases against the NSA and the Bush administration laud the decision as giving them vital legal backing for their own court proceedings. “We now have a ruling on the books that upholds what we’ve been saying all along: that this wiretapping program violates the Constitution,” says Kevin Bankston, who represents the Electronic Frontier Foundation (EFF) in its class-action case against AT&T for its role in the NSA’s surveillance program (see January 31, 2006). [Washington Post, 8/18/2006] Legal expert and liberal commentator Glenn Greenwald writes that Taylor’s ruling “does not, of course, prohibit eavesdropping on terrorists; it merely prohibits illegal eavesdropping in violation of FISA. Thus, even under the court’s order, the Bush administration is free to continue to do all the eavesdropping on terrorists it wants to do. It just has to cease doing so using its own secretive parameters, and instead do so with the oversight of the FISA court—just as all administrations have done since 1978, just as the law requires, and just as it did very recently when using surveillance with regard to the [British] terror plot. Eavesdropping on terrorists can continue in full force. But it must comply with the law.” Greenwald writes: “[T]he political significance of this decision cannot be denied. The first federal court ever to rule on the administration’s NSA program has ruled that it violates the constitutional rights of Americans in several respects, and that it violates criminal law. And in so holding, the court eloquently and powerfully rejected the Bush administration’s claims of unchecked executive power in the area of national security.” [Salon, 8/17/2006]
White House Refuses to Comply - The Bush administration refuses to comply with Taylor’s ruling, asserting that the program is indeed legal and a “vital tool” in the “war on terrorism.” It will quickly file an appeal, and law professors on both sides of the issue predict that Taylor’s ruling will be overturned. [Savage, 2007, pp. 206]
Lawsuit Ends with White House 'Compromise' - The lawsuit will end when the White House announces a “compromise” between the wiretapping program and FISC (see January 17, 2007).

Entity Tags: John Kerry, Kevin Bankston, Mike DeWine, US Department of Justice, Peter Hoekstra, Glenn Greenwald, National Security Agency, George W. Bush, James Earl “Jimmy” Carter, Jr., Foreign Intelligence Surveillance Act, Alberto R. Gonzales, American Civil Liberties Union, AT&T, Anna Diggs Taylor, Bush administration (43), Bobby Chesney, Foreign Intelligence Surveillance Court, Electronic Frontier Foundation

Timeline Tags: Civil Liberties

President Bush signs the Military Commissions Act into law.President Bush signs the Military Commissions Act into law. [Source: White House]President Bush signs the Military Commissions Act (MCA) into law. [White House, 10/17/2006] The MCA is designed to give the president the authority to order “enemy detainees” tried by military commissions largely outside the scope of US civil and criminal procedures. The bill was requested by the Bush administration after the Supreme Court’s ruling in Hamdi v. Rumsfeld (see June 28, 2004) that the US could not hold prisoners indefinitely without access to the US judicial system, and that the administration’s proposal that they be tried by military tribunals was unconstitutional (see June 28, 2004). [FindLaw, 10/9/2006] It is widely reported that the MCA does not directly apply to US citizens, but to only non-citizens defined as “enemy combatants. [CBS News, 10/19/2006] However, six months later, a Bush administration lawyer will confirm that the administration believes the law does indeed apply to US citizens (see February 1, 2007).
Sweeping New Executive Powers - The MCA virtually eliminates the possibility that the Supreme Court can ever again act as a check on a president’s power in the war on terrorism. Similarly, the law gives Congressional approval to many of the executive powers previously, and unilaterally, seized by the Bush administration. Former Justice Department official John Yoo celebrates the MCA, writing, “Congress… told the courts, in effect, to get out of the war on terror” (see October 19, 2006). [Savage, 2007, pp. 319, 322]
'Abandoning' Core 'Principles' - The bill passed the Senate on a 65-34 vote, and the House by a 250-170 vote. The floor debate was often impassioned and highly partisan; House Majority Leader John Boehner (R-OH) called Democrats who opposed the bill “dangerous,” and Senate Judiciary Committee member Patrick Leahy (D-VT) said this bill showed that the US is losing its “moral compass.” Leahy asked during the debate, “Why would we allow the terrorists to win by doing to ourselves what they could never do, and abandon the principles for which so many Americans today and through our history have fought and sacrificed?” Senate Judiciary Committee chairman Arlen Specter (R-PA) had said he would vote against it because it is “patently unconstitutional on its face,” but then voted for it, saying he believes the courts will eventually “clean it up.” Specter’s attempt to amend the bill to provide habeas corpus rights for enemy combatants was defeated, as were four Democratic amendments. Republicans have openly used the debate over the MCA as election-year fodder, with House Speaker Dennis Hastert (R-IL) saying after the vote that “House Democrats have voted to protect the rights of terrorists,” and Boehner decrying “the Democrats’ irrational opposition to strong national security policies.” Democrats such as Senator Barack Obama (D-IL) say they will not fight back at such a level. “There will be 30-second attack ads and negative mail pieces, and we will be called everything from cut-and-run quitters to Defeatocrats, to people who care more about the rights of terrorists than the protection of Americans,” Obama says. “While I know all of this, I’m still disappointed, and I’m still ashamed, because what we’re doing here today—a debate over the fundamental human rights of the accused—should be bigger than politics.” [Washington Post, 10/19/2006] After winning the vote, Hastert accused Democrats who opposed the bill of “putting their liberal agenda ahead of the security of America.” Hastert said the Democrats “would gingerly pamper the terrorists who plan to destroy innocent Americans’ lives” and create “new rights for terrorists.” [New York Times, 10/19/2006]
Enemy Combatants - The MCA applies only to “enemy combatants.” Specifically, the law defines an “unlawful enemy combatant” as a person “who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents,” and who is not a lawful combatant. Joanne Mariner of Human Rights Watch says the definition far exceeds the traditionally accepted definition of combatant as someone who directly participates in hostilities. But under the MCA, someone who provides “material support” for terrorists—whether that be in the form of financial contributions or sweeping the floors at a terrorist camp—can be so defined. Worse, the label can be applied without recourse by either Bush or the secretary of defense, after a “competent tribunal” makes the determination. The MCA provides no guidelines as to what criteria these tribunals should use. Taken literally, the MCA gives virtually unrestricted power to the tribunals to apply the label as requested by the president or the secretary. Mariner believes the definition is both “blatantly unconstitutional” and a direct contradiction of centuries of Supreme Court decisions that define basic judicial rights. [FindLaw, 10/9/2006] Under this definition, the president can imprison, without charge or trial, any US citizen accused of donating money to a Middle East charity that the government believes is linked to terrorist activity. Citizens associated with “fringe” groups such as the left-wing Black Panthers or right-wing militias can be incarcerated without trial or charge. Citizens accused of helping domestic terrorists can be so imprisoned. Law professor Bruce Ackerman calls the MCA “a massive Congressional expansion of the class of enemy combatants,” and warns that the law may “haunt all of us on the morning after the next terrorist attack” by enabling a round of mass detentions similar to the roundup of Japanese-American citizens during World War II. [Savage, 2007, pp. 322]
Military Commissions - The MCA mandates that enemy combatants are to be tried by military commissions, labeled “regularly constituted courts that afford all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’ for purposes of common Article 3 of the Geneva Conventions.” The commissions must have a minimum of five commissioned military officers and a military judge; if death is a possible penalty, the commissions must have at least 12 officers. The defendant’s guilt must be proven beyond a reasonable doubt; convictions require a two-thirds vote. Sentences of beyond 10 years require a three-quarters vote, and death penalties must be unanimously voted for. Defendants may either represent themselves or by military or civilian counsel. The court procedures themselves, although based on standard courts-martial proceedings, are fluid, and can be set or changed as the secretary of defense sees fit. Statements obtained through methods defined as torture are inadmissible, but statements take by coercion and “cruel treatment” can be admitted. The MCA sets the passage of the Detainee Treatment Act (DTA—see December 15, 2005) as a benchmark—statements obtained before the December 30, 2005 enactment of that law can be used, even if the defendant was “coerced,” if a judge finds the statement “reasonable and possessing sufficient probative value.” Statements after that date must have been taken during interrogations that fall under the DTA guidelines. Defendants have the right to examine and respond to evidence seen by the commission, a provision originally opposed by the administration. However, if the evidence is classified, an unclassified summary of that material is acceptable, and classified exculpatory evidence can be denied in lieu of what the MCA calls “acceptable substitutes.” Hearsay evidence is admissible, as is evidence obtained without search warrants. Generally, defendants will not be allowed to inquire into the classified “sources, methods, or activities” surrounding evidence against them. Some human rights activists worry that evidence obtained through torture can be admitted, and the fact that it was obtained by torture, if that detail is classified, will not be presented to the court or preclude the evidence from being used. Public access to the commissions will be quite limited. Many experts claim these commissions are illegal both by US constitutional law and international law. [FindLaw, 10/9/2006]
Secret Courts - The military tribunals can be partially or completely closed to public scrutiny if the presiding judge deems such an action necessary to national security. The government can convey such concerns to the judge without the knowledge of the defense. The judge can exclude the accused from the trial if he deems it necessary for safety or if he decides the defendant is “disruptive.” Evidence can be presented in secret, without the knowledge of the defense and without giving the defense a chance to examine that evidence, if the judge finds that evidence “reliable.” And during the trial, the prosecution can at any time assert a “national security privilege” that would stop “the examination of any witness” if that witness shows signs of discussing sensitive security matters. This provision can easily be used to exclude any potential defense witness who might “breach national security” with their testimony. Author and investigative reporter Robert Parry writes, “In effect, what the new law appears to do is to create a parallel ‘star chamber’ system for the prosecution, imprisonment, and elimination of enemies of the state, whether those enemies are foreign or domestic.” [Consortium News, 10/19/2006]
Appeals - Guilty verdicts are automatically appealed to a Court of Military Commission Review, consisting of three appellate military justices. The DC Circuit Court of Appeals has extremely limited authority of review of the commissions; even its authority to judge whether a decision is consistent with the Constitution is limited “to the extent [that the Constitution is] applicable.”
Types of Crimes - Twenty-eight specific crimes fall under the rubric of the military commissions, including conspiracy (not a traditional war crime), murder of protected persons, murder in violation of the bill of war, hostage-taking, torture, cruel or inhuman treatment, mutilation or maiming, rape, sexual abuse or assault, hijacking, terrorism, providing material support for terrorism, and spying. [FindLaw, 10/9/2006]
CIA Abuses - The MCA, responding to the recent Supreme Court decision of Hamdan v. Rumsfeld (see June 30, 2006) that found the CIA’s secret detention program and abusive interrogation practices illegal, redefines and amends the law to make all but the most pernicious interrogation practices, even those defined as torture by the War Crimes Act and the Geneva Conventions, legal. The MCA actually rules that the Geneva Conventions are all but unenforceable in US courts. It also provides retroactive protection under the law to all actions as far back as November 1997. Under the MCA, practices such as waterboarding, stress positioning, and sleep deprivation cannot be construed as torture. [FindLaw, 10/9/2006] The MCA even states that rape as part of interrogations cannot be construed as torture unless the intent of the rapist to torture his victim can be proven, a standard rejected by international law. The MCA provides such a narrow definition of coercion and sexual abuse that most of the crimes perpetrated at Abu Ghraib are now legal. [Jurist, 10/4/2006] Although the MCA seems to cover detainee abuse for all US agencies, including the CIA, Bush says during the signing of the bill, “This bill will allow the Central Intelligence Agency to continue its program for questioning key terrorist leaders and operatives.” International law expert Scott Horton will note, “The administration wanted these prohibitions on the military and not on the CIA, but it did not work out that way.” Apparently Bush intends to construe the law to exempt the CIA from its restrictions, such as they are, on torture and abuse of prisoners. [Salon, 5/22/2007]
No Habeas Corpus Rights - Under the MCA, enemy combatants no longer have the right to file suit under the habeas corpus provision of US law. This means that they cannot challenge the legality of their detention, or raise claims of torture and mistreatment. Even detainees who have been released can never file suit to seek redress for their treatment while in US captivity. [FindLaw, 10/25/2006]
Retroactive Immunity - The administration added a provision to the MCA that rewrote the War Crimes Act retroactively to November 26, 1997, making any offenses considered war crimes before the MCA is adopted no longer punishable under US law. Former Nixon White House counsel John Dean will write in 2007 that the only reason he can fathom for the change is to protect administration officials—perhaps including President Bush himself—from any future prosecutions as war criminals. Dean will note that if the administration actually believes in the inherent and indisputable powers of the presidency, as it has long averred, then it would not worry about any such criminal liability. [Dean, 2007, pp. 239-240]

Entity Tags: Human Rights Watch, Joanne Mariner, US Supreme Court, Patrick J. Leahy, Military Commissions Act, John Dean, George W. Bush, Scott Horton, Geneva Conventions, Bruce Ackerman, Dennis Hastert, American Civil Liberties Union, Amnesty International, Detainee Treatment Act, Arlen Specter, War Crimes Act, Barack Obama, Central Intelligence Agency, Bush administration (43), John Boehner

Timeline Tags: Civil Liberties

John Yoo, a former Justice Department official, celebrates the passage of the Military Commissions Act (see October 17, 2006). Yoo writes that Congress has ordered “the courts, in effect, to get out of the war on terror.” The bill is not so much a victory for the presidency, Yoo writes, as it is a loss for the judiciary, a “stinging rebuke to the Supreme Court. It strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world.” It supersedes the Court’s ruling in Hamdan v. Rumsfeld (see June 30, 2006), which Yoo calls “an unprecedented attempt by the court to rewrite the law of war and intrude into war policy… [a] stunning power grab.” Now, he writes: “Congress and the president did not take the court’s power grab lying down. They told the courts, in effect, to get out of the war on terror, stripped them of habeas jurisdiction over alien enemy combatants, and said there was nothing wrong with the military commissions. It is the first time since the New Deal that Congress had so completely divested the courts of power over a category of cases. It is also the first time since the Civil War that Congress saw fit to narrow the court’s habeas powers in wartime because it disagreed with its decisions. The law goes farther. It restores to the president command over the management of the war on terror. It directly reverses Hamdan by making clear that the courts cannot take up the Geneva Conventions. Except for some clearly defined war crimes, whose prosecution would also be up to executive discretion, it leaves interpretation and enforcement of the treaties up to the president. It even forbids courts from relying on foreign or international legal decisions in any decisions involving military commissions.” Yoo had previously authored numerous torture memos (see October 4, 2001, November 6-10, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24-26, 2002, March 13, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and March 14, 2003) and opinions expanding the power of the president (see September 21, 2001, September 25, 2001, September 25, 2001, October 23, 2001, October 23, 2001, and June 27, 2002). [Wall Street Journal, 10/19/2006]

Entity Tags: Military Commissions Act, John C. Yoo

Timeline Tags: Civil Liberties

Microsoft logo.Microsoft logo. [Source: Your Logo Collection (.com)]The National Security Agency (NSA) reveals plans to build an enormous new data center in San Antonio, Texas, three months after Microsoft announced plans to build a $550 million data center in the same area. [National Security Agency, 4/19/2007] The NSA previously acknowledged building a similar data storage facility in Colorado (see January 30, 2006). Reporter and author James Bamford will later write in his book The Shadow Factory that “[t]he timing of the move was interesting,” because the NSA had leased a building in San Antonio in 2005, but had not done anything further. The NSA only announces plans to move forward with the data center after Microsoft revealed plans to build a 470,000 square foot cloud data center that would handle Internet search data, emails, and instant messages. Bamford will quote Bexar County judge Nelson Wolff’s statement to the San Antonio Express-News, “We told [the NSA] we were going to get Microsoft, and that really opened up their eyes,” and write, “For an agency heavily involved in data harvesting, there were many advantages to having their miners next door to the mother lode of data centers” (see 1997, February 27, 2000, February 2001), Spring 2001, April 4, 2001, After September 11, 2001, After September 11, 2001, October 2001, Early 2002, September 2002, and December 15, 2005). Microsoft’s operation will be largely automated and employ only 75 people. In contrast, the NSA’s facility is to be the same size, but employ 1,500. Bamford will write that this is “far more than was needed to babysit a warehouse of routers and servers but enough to analyze the data passing across them.” [Data Center Knowledge, 1/19/2007; San Antonio Express-News, 4/18/2007; Bamford, 2008, pp. 317-318] Former senior AT&T technician and warrantless surveillance whistleblower Mark Klein (see December 15-31, 2005 and July 7, 2009) will reference Bamford’s book and agree that this “suggests a massive data mining operation.” [Klein, 2009, pp. 41]

Entity Tags: James Bamford, Microsoft Corporation, National Security Agency, Mark Klein

Timeline Tags: Civil Liberties

The Protect America Act (PAA) (see August 5, 2007), an amendment to the Foreign Intelligence Surveillance Act (FISA—see 1978), is introduced in Congress. With limited debate and no committee hearings, it passes both houses with substantial majorities. [US Senate, 8/5/2007; Boston Globe, 8/6/2007; House Judiciary Committee, 9/18/2007 pdf file] Congressional Democrats quickly capitulate on the bill, submitting to what the Washington Post later calls “a high-pressure campaign by the White House to change the nation’s wiretap law, in which the administration capitalized on Democrats’ fears of being branded weak on terrorism and on Congress’s desire to act on the issue before its August recess.” [Washington Post, 8/5/2007] Indeed, one Republican senator, Trent Lott, warns during the initial debate that lawmakers should pass the law quickly and get out of Washington before they could be killed in a terrorist attack (see August 2, 2007). McConnell tells the Senate, “Al-Qaeda is not going on vacation this month.” And Democrat Joseph Lieberman (D-CT), a supporter of the bill, told his colleagues: “We’re at war. The enemy wants to attack us. This is not the time to strive for legislative perfection.” [Slate, 8/6/2007]
Some Democrats Unhappy - One Democratic lawmaker responds angrily: “There are a lot of people who felt we had to pass something. It was tantamount to being railroaded.” Many House Democrats feel betrayed by the White House; Democratic leaders had reached what they believed was a deal on the bill with the Director of National Intelligence, Mike McConnell, only to have the White House throw out the deal and present a new list of conditions at the last minute. Both McConnell and the White House deny that any such deal was reached. Jan Schakowsky (D-IL), a member of the House Intelligence Committee, says, “I think the White House didn’t want to take ‘yes’ for an answer from the Democrats.” Representative Jerrold Nadler (R-NY) says lawmakers were “stampeded by fear-mongering and deception” into voting for the bill. Fellow House Democrat Jane Harman (D-CA) warns that the PAA will lead to “potential unprecedented abuse of innocent Americans’ privacy.” [Washington Post, 8/5/2007] The ACLU’s Caroline Fredrickson has a succinct explanation of why the Democrats folded so quickly: “Whenever the president says the word terrorism, they roll over and play dead.” [Slate, 8/6/2007]
AT&T Whistleblower: Democratic Leadership Colluded in Passing PAA - AT&T whistleblower Mark Klein (see July 7, 2009 and December 15-31, 2005) will later write that the Democrats played a far more active role in getting the PAA passed than others acknowledge. He will quote a 2008 column by liberal civil liberties advocate Glenn Greenwald, who will write: “[I]n 2006, when the Congress was controlled by [then-Senate Majority Leader] Bill Frist [R-TN] and [then-House Speaker] Denny Hastert [R-IL], the administration tried to get a bill passed legalizing warrantless eavesdropping and telecom amnesty, but was unable. They had to wait until the Congress was controlled by [House Majority Leader] Steny Hoyer [D-MD], [House Speaker] Nancy Pelosi [D-CA], and [Senate Majority Leader] Harry Reid [D-NV] to accomplish that.” According to Klein, once the Democrats took control of Congress in January 2007, they engaged in “pure theater, posturing as opponents of the illegal NSA program while seeking a way to protect the president.” The few principled Democrats to actively oppose the legislation, such as Senator Christopher Dodd (D-CT), were, Klein will write, “hamstrung by their own leadership.” The PAA passage was accompanied by refusals from the Democratic leaders of “the relevant Intelligence and Judiciary Committees, which were now led by Democrats such as [John D.] Rockefeller, [Dianne] Feinstein (see February 1-6, 2006), and [Patrick] Leahy in the Senate, and John Conyers and Sylvestre Reyes in the House,” who “quickly decided not to launch any serious investigations into the NSA spying.” Klein will later add that at the time of the PAA passage, he was unaware of how thoroughly Democrats had been briefed on the NSA program (see October 1, 2001, October 11, 2001, October 25, 2001 and November 14, 2001, July 17, 2003, and March 10, 2004), “and thus were in on the secret but took no action to stop it.” [Salon, 6/19/2008; Klein, 2009, pp. 86-87]

Entity Tags: Trent Lott, Mike McConnell, Protect America Act, Joseph Lieberman, Mitch McConnell, Jane Harman, Jerrold Nadler, Caroline Fredrickson, Bush administration (43), Jan Schakowsky, House Intelligence Committee

Timeline Tags: Civil Liberties

Steven Bradbury, the outgoing head of the Justice Department’s Office of Legal Counsel (OLC), issues a legal opinion finding certain earlier opinions from the OLC invalid. Bradbury is referring to several memos issued by former OLC lawyers John Yoo, Jay Bybee, and others after the 9/11 attacks (see March 2, 2009).
'Doubtful Nature' - Bradbury writes that these opinions had not been relied upon since 2003, and notes that it is important to acknowledge in writing “the doubtful nature of these propositions.” The opinions “do not currently reflect, and have not for some years reflected, the views of the” OLC, Bradbury writes, “and on several occasions we have already acknowledged the doubtful nature of these propositions.”
President's Position - One portion of Bradbury’s memo says it is “not sustainable” to argue that the president’s power as commander in chief “precludes Congress from enacting any legislation concerning the detention, interrogation, prosecution, and transfer of enemy combatants.” Bradbury is referring to a 2002 memo that claimed President Bush could order the “rendition” of detainees to other countries without regard to Congressional legislation (see March 13, 2002).
'Novel and Complex Questions' - In repudiating the memos, Bradbury writes that they were the product of Yoo and others confronting what he calls “novel and complex questions in a time of great danger and under extraordinary time pressure.” [US Department of Justice, 1/15/2009 pdf file; New York Times, 3/2/2009; Reuters, 3/2/2009]
Response - Yale law professor Jack Balkin later notes that the memo does not repudiate “any of the Bush administration’s specific policies regarding surveillance, detention, and interrogation.” [Jack Balkin, 3/3/2009] In 2004, the Justice Department repudiated the so-called “golden shield” memo, written by Yoo and the then-chief counsel for Vice President Cheney, David Addington, which gave US personnel almost unlimited authority to torture prisoners (see August 1, 2002). The New York Times writes that Bradbury’s last-minute memo “appears to have been the Bush lawyers’ last effort to reconcile their views with the wide rejection by legal scholars and some Supreme Court opinions of the sweeping assertions of presidential authority made earlier by the Justice Department.” Walter Dellinger, who headed the OLC during the Clinton administration, says that Bradbury’s memo “disclaiming the opinions of earlier Bush lawyers sets out in blunt detail how irresponsible those earlier opinions were.” Dellinger says it is important to note that the Bush administration’s assertions “that Congress had absolutely no role in these national security issues was contrary to constitutional text, historical practice, and judicial precedent.” [New York Times, 3/2/2009] Bradbury, who like Yoo and Bybee may face disbarment, is careful to note that while the legal opinions are invalid, he is not suggesting that the authors did not “satisfy” professional standards. [Washington Post, 3/3/2009]

Entity Tags: John C. Yoo, Steven Bradbury, Office of Legal Counsel (DOJ), New York Times, Walter Dellinger, Jay S. Bybee, Jack Balkin, US Department of Justice

Timeline Tags: Civil Liberties

Attorney General-nominee Eric Holder says that if he is confirmed, he intends to review current litigation in which the Bush administration asserted the so-called “state secrets” privilege (see March 9, 1953), and that he intends to minimize the use of the privilege during his tenure. “I will review significant pending cases in which DOJ [the Justice Department] has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations,” he writes in a response to pre-confirmation questions. (Shortly after Holder’s testimony, the Justice Department again asserts the “state secrets” privilege in a case involving a Guantanamo detainee—see February 9, 2009). Holder adds: “I firmly believe that transparency is a key to good government. Openness allows the public to have faith that its government obeys the law.” To a related question, he asserts his belief that the Office of Legal Counsel (OLC) must disclose as many of the opinions it generates as possible: “Once the new assistant attorney general in charge of the Office of Legal Counsel is confirmed, I plan to instruct that official to review the OLC’s policies relating to publication of its opinions with the [objective] of making its opinions available to the maximum extent consistent with sound practice and competing concerns.” [Federation of American Scientists, 2/2/2009; Senate Judiciary Committee, 2/2/2009] Weeks later, the Justice Department will release nine controversial OLC memos from the Bush administration (see March 2, 2009).

Entity Tags: Eric Holder, Bush administration (43), Office of Legal Counsel (DOJ), US Department of Justice

Timeline Tags: Civil Liberties

Some of the Justice Department memos released today.Some of the Justice Department memos released today. [Source: Los Angeles Times]The Department of Justice releases nine memos written after the 9/11 attacks that claimed sweeping, extraconstitutional powers for then-President Bush. The memos, written primarily by John Yoo of the Office of Legal Counsel (OLC), claim that Bush could, if he desired, order military raids against targets within the US, and order police or military raids without court warrants (see October 23, 2001). The only justification required would be that Bush had declared the targets of such raids to be suspected terrorists. Other powers the president had, according to the memos, were to unilaterally abrogate or abandon treaties with foreign countries, ignore Congressional legislation regarding suspected terrorists in US detention (see March 13, 2002), suspend First Amendment rights to freedom of speech and information dissemination (see October 23, 2001), and conduct a program of warrantless domestic surveillance (see September 25, 2001). In January, an opinion issued by the OLC claimed that the opinions of the earlier memos had not been acted upon since 2003, and were generally considered unreliable (see January 15, 2009). Attorney General Eric Holder, who signed off on the release of the memos, says: “Too often over the past decade, the fight against terrorism has been viewed as a zero-sum battle with our civil liberties. Not only is that thought misguided, I fear that in actuality it does more harm than good.” [American Civil Liberties Union [PDF], 1/28/2009 pdf file; US Department of Justice, 3/2/2009; US Department of Justice, 3/2/2009; New York Times, 3/2/2009]
Memos Laid Groundwork for Warrantless Wiretapping - Though many of the powers said to belong to the president in the memos were never exercised, the assertions led to the warrantless wiretapping of US citizens (see December 15, 2005 and Spring 2004) and the torture of detained terror suspects. [Newsweek, 3/2/2009]
'How To ... Evade Rule of Law' - Senate Judiciary Committee Chairman Patrick Leahy (D-VT) says the memos begin “to provide details of some of the Bush administration’s misguided national security policies” that have long been withheld from public scrutiny. Jennifer Daskal of Human Rights Watch says the memos collectively “read like a how-to document on how to evade the rule of law.” [Washington Post, 3/3/2009] Kate Martin of the Center for National Security Studies says that the memos were part of a larger effort “that would basically have allowed for the imposition of martial law.” [Newsweek, 3/2/2009]
'Tip of Iceberg' - The memos are, according to a former Bush administration lawyer, “just the tip of the iceberg” in terms of what the Bush administration authorized. Jameel Jaffer of the American Civil Liberties Union (ACLU) says the Bush administration memos “essentially argue that the president has a blank check to disregard the Constitution during wartime, not only on foreign battlefields, but also inside the United States.” [Los Angeles Times, 3/3/2009] The ACLU, which has sued to obtain these and other memos, applauds the release of the documents, and says it hopes this is the first step in a broader release. [Reuters, 3/2/2009]

Entity Tags: Eric Holder, Jennifer Daskal, Patrick J. Leahy, Office of Legal Counsel (DOJ), Jameel Jaffer, Kate Martin, John C. Yoo, Bush administration (43), American Civil Liberties Union, US Department of Justice

Timeline Tags: Civil Liberties

Columnist and international law expert Scott Horton writes of his horror and shock at the nine just-released Bush administration memos from the Justice Department designed to grant President Bush extraordinary executive authority (see March 2, 2009).
'Disappearing Ink' - Horton writes: “Perhaps the most astonishing of these memos was one crafted by University of California at Berkeley law professor John Yoo. He concluded that in wartime, the president was freed from the constraints of the Bill of Rights with respect to anything he chose to label as […] counterterrorism operations inside the United States” (see October 23, 2001, and October 23, 2001). Horton continues: “John Yoo’s Constitution is unlike any other I have ever seen. It seems to consist of one clause: appointing the president as commander in chief. The rest of the Constitution was apparently printed in disappearing ink.”
Timing of Repudiation Proves Bush Officials Found Claims Useful - Horton has no patience with the claims of former Office of Legal Counsel chief Steven Bradbury that the extraordinary powers Yoo attempted to grant Bush were not used very often (see January 15, 2009). “I don’t believe that for a second,” Horton notes, and notes Bradbury’s timing in repudiating the Yoo memos: five days before Bush left office. “Bradbury’s decision to wait to the very end before repealing it suggests that someone in the Bush hierarchy was keen on having it,” Horton asserts.
Serving Multiple Purposes - The memos “clear[ly]” served numerous different purposes, Horton notes. They authorized, or provided legal justification for, the massive domestic surveillance programs launched by military agencies such as the Defense Intelligence Agency and the National Security Agency (see September 25, 2001). But the memos went much farther, Horton says: “[T]he language of the memos suggest that much more was afoot, including the deployment of military units and military police powers on American soil. These memos suggest that John Yoo found a way to treat the Posse Comitatus Act as suspended.” They also gave Bush the apparent legal grounds to order the torture of people held at secret overseas sites (see March 13, 2002), and to hold accused terrorist Jose Padilla without charge or due process, even though the administration had no evidence whatsoever of the crimes he had been alleged to commit (see June 8, 2002).
American Dictatorship - Horton’s conclusion is stark. “We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship,” he writes. “The constitutional rights we learned about in high school civics were suspended. That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution. What we know now is likely the least of it.” [Harper's, 3/3/2009]

Entity Tags: National Security Agency, US Department of Justice, Office of Legal Counsel (DOJ), Scott Horton, Steven Bradbury, George W. Bush, Jose Padilla, Bush administration (43), Defense Intelligence Agency, John C. Yoo

Timeline Tags: Civil Liberties

Legal experts and civil libertarians are “stunned” by the recently released memos from the Bush-era Justice Department which assert sweeping powers for the president not granted by the Constitution (see March 2, 2009 and March 3, 2009). Yale law professor Jack Balkin calls the memos a demonstration of the Bush “theory of presidential dictatorship.” Balkin continues: “They say the battlefield is everywhere. And the president can do anything he wants, so long as it involves the military and the enemy.… These views are outrageous and inconsistent with basic principles of the Constitution as well as with two centuries of legal precedents. Yet they were the basic assumptions of key players in the Bush administration in the days following 9/11.” George Washington University law professor Orin Kerr agrees. “I agree with the left on this one,” he says. The approach in the memos “was simply not a plausible reading of the case law. The Bush [Office of Legal Counsel, or OLC] eventually rejected [the] memos because they were wrong on the law—and they were right to do so” (see January 15, 2009). Balkin says the time period of most of the memos—the weeks and months following the 9/11 attacks—merely provided a convenient excuse for the administration’s subversion of the Constitution. “This was a period of panic, and panic creates an opportunity for patriotic politicians to abuse their power,” he says. [Jack Balkin, 3/3/2009; Los Angeles Times, 3/4/2009] Civil litigator and columnist Glenn Greenwald writes that the memos helped provide the foundation for what he calls “the regime of secret laws under which we were ruled for the last eight years… the grotesque blueprint for what the US government became.” [Salon, 3/3/2009] Duke University law professor Walter Dellinger says that, contrary to the memos’ assertion of blanket presidential powers in wartime, Congress has considerable powers during such a time. Congress has, according to the Constitution, “all legislative powers,” including the power “to declare war… and make rules concerning captures on land and water” as well as “regulation of the land and naval forces.” Dellinger, who headed the OLC during the Clinton administration, continues: “You can never get over how bad these opinions were. The assertion that Congress has no role to play with respect to the detention of prisoners was contrary to the Constitution’s text, to judicial precedent, and to historical practice. For people who supposedly follow the text [of the Constitution], what don’t they understand about the phrase ‘make rules concerning captures on land and water’?” [Los Angeles Times, 3/4/2009]

Entity Tags: Orin S. Kerr, US Department of Justice, Office of Legal Counsel (DOJ), Jack Balkin, Walter Dellinger, Glenn Greenwald, Bush administration (43)

Timeline Tags: Civil Liberties

Former Justice Department lawyer John Yoo, who authored numerous legally untenable memos authorizing torture and the preeminence of the executive branch (see September 21, 2001, September 25, 2001, September 25, 2001, October 23, 2001, November 6-10, 2001, and January 9, 2002), writes that in the nomination of Sonia Sotomayor to the Supreme Court (see May 26, 2009), “empathy has won out over excellence in the White House.” Yoo, who calls the Justice she is replacing, David Souter, an equally “weak force on the high court,” writes that President Obama “chose a judge distinguished from the other members of [his list of potential nominees] only by her race. Obama may say he wants to put someone on the Court with a rags-to-riches background, but locking in the political support of Hispanics must sit higher in his priorities.” Sotomayor’s record is “undistinguished,” Yoo writes, and “will not bring to the table the firepower that many liberal academics are asking for.” She will not be the intellectual and legal equal of conservatives Antonin Scalia and Clarence Thomas, he says. “Liberals have missed their chance to put on the Court an intellectual leader who will bring about a progressive revolution in the law.” Conservatives should challenge her nomination, Yoo writes, because the Court is “a place where cases are decided by a faithful application of the Constitution, not personal politics, backgrounds, and feelings. Republican senators will have to conduct thorough questioning in the confirmation hearings to make sure that she will not be a results-oriented voter, voting her emotions and politics rather than the law.” [American Enterprise Institute, 5/26/2009]

Entity Tags: US Supreme Court, Barack Obama, David Souter, Sonia Sotomayor, John C. Yoo

Timeline Tags: Domestic Propaganda

Former White House political director Karl Rove continues his attacks on Supreme Court nominee Sonia Sotomayor (see May 26, 2009). In a column for the Wall Street Journal, Rove echoes former Justice Department official John Yoo in claiming that the Obama administration chose “empathy” over capability in Sotomayor’s selection (see May 26, 2009). Rove goes one step further than Yoo in equating Sotomayor’s “empathy” with “liberal judicial activism.” “‘Empathy’ is the latest code word for liberal activism,” Rove writes, “for treating the Constitution as malleable clay to be kneaded and molded in whatever form justices want. It represents an expansive view of the judiciary in which courts create policy that couldn’t pass the legislative branch or, if it did, would generate voter backlash.” He accuses Sotomayor, and indirectly President Obama, of a “readiness to discard the rule of law whenever emotion moves them.” He also accuses Obama of attempting to “placate Hispanic groups who’d complained of his failure to appoint more high profile Latinos to his administration.… Mr. Obama also hopes to score political points as GOP senators oppose a Latina. Being able to jam opponents is a favorite Chicago political pastime.” Rove advises Republicans to use Sotomayor’s nomination as an opportunity to “stress their support for judges who strictly interpret the Constitution and apply the law as written.” He notes: “A majority of the public is with the GOP on opposing liberal activist judges. There is something in our political DNA that wants impartial umpires who apply the rules, regardless of who thereby wins or loses.” [Wall Street Journal, 5/28/2009] Hours after his attack column is printed, Rove tells a Fox News audience that Republicans need to treat Sotomayor with “respect” and criticize her over her “philosophy,” not her background. [Think Progress, 5/29/2009]

Entity Tags: Obama administration, Barack Obama, Karl C. Rove, US Supreme Court, Sonia Sotomayor

Timeline Tags: Domestic Propaganda

President Barack Obama lambasts critics of Supreme Court nominee Sonia Sotomayor (see May 26, 2009) for their attacks on her (see May 26, 2009, May 26, 2009, May 26, 2009, May 26, 2009, May 26, 2009, May 28, 2009, May 26, 2009, May 27-29, 2009, May 27, 2009, May 28, 2009, May 28, 2009, May 28, 2009, and May 29, 2009). Obama says that Sotomayor regrets her choice of words in a 2001 speech in which she said a “wise Latina” judge would often make better decisions than a white male (see October 26, 2001), but goes on to condemn “all this nonsense that is being spewed out” by critics who have accused her of racism and belonging to racist groups. Of her speech, Obama says: “I’m sure she would have restated it. But if you look in the entire sweep of the essay that she wrote, what’s clear is that she was simply saying that her life experiences will give her information about the struggles and hardships that people are going through. That will make her a good judge.” White House spokesman Robert Gibbs says of the racial accusations: “It’s sort of hard to completely quantify the outrage I think almost anybody would feel at the notion that you’re being compared to somebody who used to be a member of the Ku Klux Klan. It’s amazing.” Republican strategist John Ullyot, who worked on judicial nominations as a Congressional staffer, says that “any comments politically on race or gender are fraught with peril for Republicans.” He continues: “A few conservatives from outside of the Senate, in their zeal to pick a fight over Obama’s nominee, decided to get very ugly very quickly. No one in the Senate has followed along, and that’s the loudest condemnation you can have.” Ullyot fails to mention attacks from Republican Senators James Inhofe (R-OK) and Jeff Sessions (R-AL—see May 26, 2009). [Washington Post, 5/29/2009]

Entity Tags: John Ullyot, Barack Obama, US Supreme Court, Robert Gibbs, Sonia Sotomayor

Timeline Tags: Domestic Propaganda

Former President George H. W. Bush condemns the right-wing attacks against Supreme Court nominee Sonia Sotomayor (see May 26, 2009), speaking out specifically against the charges that she has racist tendencies (see May 26, 2009, May 26, 2009, May 26, 2009, May 26, 2009, May 26, 2009, May 28, 2009, May 26, 2009, May 27-29, 2009, May 27, 2009, May 28, 2009, May 28, 2009, May 28, 2009, May 29, 2009, May 29, 2009, June 2, 2009, June 5, 2009, and June 7, 2009). “I don’t know her that well but I think she’s had a distinguished record on the bench and she should be entitled to fair hearings,” he says. “Not—[it’s] like the senator John Cornyn said it (see May 28-31, 2009). He may vote for it, he may not. But he’s been backing away from these… backing off from those radical statements to describe her, to attribute things to her that may or may not be true.… And she was called by somebody a racist once. That’s not right. I mean that’s not fair. It doesn’t help the process. You’re out there name-calling. So let them decide who they want to vote for and get on with it.” [Think Progress, 6/12/2009]

Entity Tags: US Supreme Court, John Cornyn, Sonia Sotomayor, George Herbert Walker Bush

Timeline Tags: Domestic Propaganda

Three of the Supreme Court justices in the majority decision: Antonin Scalia, John Roberts, and Anthony Kennedy.Three of the Supreme Court justices in the majority decision: Antonin Scalia, John Roberts, and Anthony Kennedy. [Source: Associated Press / Politico]The Supreme Court rules 5-4 that corporate spending in political elections may not be banned by the federal government. The case is Citizens United v. Federal Election Commission, No. 08-205. The Court is divided among ideological lines, with the five conservatives voting against the four moderates and liberals on the bench. The decision overrules two precedents about the First Amendment rights of corporations, and rules that corporate financial support for a party or candidate qualifies as “freedom of speech” (see March 11, 1957, January 30, 1976, May 11, 1976, April 26, 1978, January 8, 1980, November 28, 1984, December 15, 1986, June 26, 1996, June 25, 2007, and June 26, 2008). The majority rules that the government may not regulate “political speech,” while the dissenters hold that allowing corporate money to, in the New York Times’s words, “flood the political marketplace,” would corrupt the democratic process. The ramifications of the decision will be vast, say election specialists. [Legal Information Institute, 2010; CITIZENS UNITED v. FEDERAL ELECTION COMMISSION, 1/21/2010 pdf file; New York Times, 1/21/2010] In essence, the ruling overturns much of the Bipartisan Campaign Reform Act of 2002, commonly known as the McCain-Feingold law (BCRA—see March 27, 2002). The ruling leaves the 1907 ban on direct corporate contributions to federal candidates and national party committees intact (see 1907). The ban on corporate and union donors coordinating their efforts directly with political parties or candidates’ campaigns remains in place; they must maintain “independence.” Any corporation spending more than $10,000 a year on electioneering efforts must publicly disclose the names of individual contributors. And the ruling retains some disclosure and disclaimer requirements, particularly for ads airing within 30 days of a primary or 60 days of a general election. The Los Angeles Times writes: “The decision is probably the most sweeping and consequential handed down under Chief Justice John G. Roberts Jr. And the outcome may well have an immediate impact on this year’s mid-term elections to Congress.” [Los Angeles Times, 1/21/2010; OMB Watch, 1/27/2010; Christian Science Monitor, 2/2/2010; National Public Radio, 2012]
Unregulated Money Impacts Midterm Elections - The decision’s effects will be felt first on a national level in the 2010 midterm elections, when unregulated corporate spending will funnel millions of dollars from corporate donors into Congressional and other races. President Obama calls the decision “a major victory for big oil, Wall Street banks, health insurance companies, and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.” Evan Tracey of the Campaign Media Analysis Group, which tracks political advertising, says the Court “took what had been a revolving door and took the door away altogether. There was something there that slowed the money down. Now it’s gone.” [Legal Information Institute, 2010; CITIZENS UNITED v. FEDERAL ELECTION COMMISSION, 1/21/2010 pdf file; New York Times, 1/21/2010; Los Angeles Times, 1/21/2010; Think Progress, 1/21/2010]
Broadening in Scope - According to reporter and author Jeffrey Toobin, CU lawyer Theodore Olson had originally wanted to present the case as narrowly as possible, to ensure a relatively painless victory that would not ask the Court to drastically revise campaign finance law. But according to Toobin, the conservative justices, and particularly Chief Justice Roberts, want to use the case as a means of overturning much if not all of McCain-Feingold (see May 14, 2012). In the original argument of the case in March 2009 (see March 15, 2009), Deputy Solicitor General Malcolm Stewart unwittingly changed the scope of the case in favor of a broader interpretation, and gave Roberts and the other conservative justices the opportunity they may have been seeking. [New Yorker, 5/21/2012]
Majority Opinion Grants Corporations Rights of Citizens - The majority opinion, written by Justice Anthony Kennedy, reads in part: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.… The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech.” In essence, Kennedy’s ruling finds, corporations are citizens. The ruling overturns two precedents: 1990’s Austin v. Michigan Chamber of Commerce, which upheld restrictions on corporate spending to support or oppose political candidates (see March 27, 1990) in its entirety, and large portions of 2003’s McConnell v. Federal Election Commission (see December 10, 2003), which upheld a portion of the BCRA that restricted campaign spending by corporations and unions. Before today’s ruling, the BCRA banned the broadcast, cable, or satellite transmission of “electioneering communications” paid for by corporations or labor unions from their general funds in the 30 days before a presidential primary and in the 60 days before the general elections. The law was restricted in 2007 by a Court decision to apply only to communications “susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate” (see June 25, 2007).
Encroachment on Protected Free Speech - Eight of the nine justices agree that Congress can require corporations to disclose their spending and to run disclaimers with their advertisements; Justice Clarence Thomas is the only dissenter on this point. Kennedy writes, “Disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way.” Kennedy’s opinion states that if the restrictions remain in place, Congress could construe them to suppress political speech in newspapers, on television news programs, in books, and on the Internet. Kennedy writes: “When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”
Fiery Dissent - Justice John Paul Stevens, the oldest member of the court, submits a fiery 90-page dissent that is joined by Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor. Kennedy is joined by Roberts and fellow Associate Justices Samuel Alito, Antonin Scalia, and Thomas, though Roberts and Alito submit a concurring opinion instead of signing on with Kennedy, Scalia, and Thomas. “The difference between selling a vote and selling access is a matter of degree, not kind,” Stevens writes in his dissent. “And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf.” Stevens writes that the Court has long recognized the First Amendment rights of corporations, but the restrictions struck down by the decision are moderate and fair. “At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” Speaking from the bench, Stevens calls the ruling “a radical change in the law… that dramatically enhances the role of corporations and unions—and the narrow interests they represent—in determining who will hold public office.… Corporations are not human beings. They can’t vote and can’t run for office,” and should be restricted under election law. “Essentially, five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”
Case Originated with 2008 Political Documentary - The case originated in a 2008 documentary by the right-wing advocacy group Citizens United (CU), called Hillary: The Movie (see January 10-16, 2008). The film, a caustic attack on then-Democratic presidential candidate Hillary Clinton (D-NY) and Democrats in general, was released for public viewing during the 2008 Democratic presidential primaries. When the Federal Election Commission (FEC) won a lawsuit against CU, based on the FEC’s contention that broadcasting the film violated McCain-Feingold, the group abandoned plans to release the film on a cable video-on-demand service and to broadcast television advertisements for it. CU appealed the ruling to the Supreme Court, and most observers believed the Court would decide the case on narrow grounds, not use the case to rewrite election law and First Amendment coverage. [Legal Information Institute, 2010; CITIZENS UNITED v. FEDERAL ELECTION COMMISSION, 1/21/2010 pdf file; New York Times, 1/21/2010; Los Angeles Times, 1/21/2010; Think Progress, 1/21/2010; Associated Press, 1/21/2010; Christian Science Monitor, 2/2/2010]
Case Brought in Order to Attack Campaign Finance Law - Critics have said that CU created the movie in order for it to fall afoul of the McCain-Feingold campaign finance law, and give the conservatives on the Court the opportunity to reverse or narrow the law. Nick Nyhart of Public Campaign, an opponent of the decision, says: “The movie was created with the idea of establishing a vehicle to chip away at the decision. It was part of a very clear strategy to undo McCain-Feingold.” CU head David Bossie confirms this contention, saying after the decision: “We have been trying to defend our First Amendment rights for many, many years. We brought the case hoping that this would happen… to defeat McCain-Feingold.” [Washington Post, 1/22/2010]

Entity Tags: US Supreme Court, Theodore (“Ted”) Olson, Sonia Sotomayor, Clarence Thomas, Anthony Kennedy, Antonin Scalia, Citizens United, Bipartisan Campaign Reform Act of 2002, Barack Obama, Samuel Alito, Ruth Bader Ginsburg, Stephen Breyer, New York Times, Nick Nyhart, Evan Tracey, David Bossie, Hillary Clinton, Jeffrey Toobin, Federal Election Commission, John Paul Stevens, Malcolm Stewart, John G. Roberts, Jr, Los Angeles Times

Timeline Tags: Civil Liberties

The Wall Street Journal celebrates the Citizens United Supreme Court decision (see January 21, 2010) as a victory for “free speech” (see January 21, 2010). In an unsigned editorial, the Journal celebrates the decision by stating that the Court used the Constitution to “rescue” the political system from “marauding government” elements, particularly a “reckless Congress.” The Journal claims that the Citizens United case rested on the Federal Election Commission (FEC)‘s refusal to allow the airing of a 90-minute political attack documentary on presidential candidate Senator Hillary Clinton (D-NY) because the film was “less than complimentary” of her. In reality, the FEC considered the film “electioneering” by the organization that released the film, Citizens United, and prohibited it from being shown on pay-per-view cable access (see January 10-16, 2008). The Court rejected campaign finance law’s limitation on corporate spending, prompting the Journal to state, “Corporations are entitled to the same right that individuals have to spend money on political speech for or against a candidate.” Any other state of affairs, the Journal writes, constitutes censorship. The Journal criticizes President Obama for speaking out against the decision (see January 21, 2010), saying that Obama put “on his new populist facade to call it ‘a major victory for big oil, Wall Street banks, health insurance companies,’ and other ‘special interests.’ Mr. Obama didn’t mention his union friends as one of those interests, but their political spending will also be protected by the logic of this ruling. The reality is that free speech is no one’s special interest.” The Journal dismisses promises by Congressional Democrats to pass legislation or even bring forth a constitutional amendment limiting corporate donations by stating, “Liberalism’s bullying tendencies are never more on display than when its denizens are at war with the speech rights of its opponents.” The Journal concludes by advocating that the Court overturn its 1976 Buckley v. Valeo decision (see January 30, 1976) that placed modest limits on corporate spending, in essence advocating the complete deregulation of campaign financing. “The Court did yesterday uphold disclosure rules, so a sensible step now would be for Congress to remove all campaign-finance limits subject only to immediate disclosure on the Internet,” the Journal states. “Citizens United is in any event a bracing declaration that Congress’s long and misbegotten campaign-finance crusade has reached a constitutional dead end.” [Wall Street Journal, 1/22/2010]

Entity Tags: Citizens United, Barack Obama, Wall Street Journal, US Supreme Court, Hillary Clinton, Federal Election Commission

Timeline Tags: Civil Liberties

A US District Court judge awards damages in a lawsuit, finding the NSA illegally monitored the calls of the plaintiffs. The Al Haramain Islamic Foundation and two of its lawyers, Wendell Belew and Asim Ghafoor, sued the US government in 2006 based on evidence that their calls had been monitored; the US Treasury Department inadvertently provided them with an NSA log in August 2004 showing their calls had been monitored in May of that year (see February 28, 2006). In defending against the suit, the Justice Department argued, first under President Bush and then under President Obama, that the case should be dismissed based on the government’s invocation of the state secrets privilege (see March 9, 1953) concerning the NSA log, and that the plaintiffs could not otherwise demonstrate that surveillance had occurred, meaning the plaintiffs had no standing to bring suit. Judge Vaughn Walker rejected these arguments, noting that the plaintiffs had introduced into evidence a speech posted on FBI’s Web site by FBI Deputy Director John Pistole to the American Bankers Association (ABA), in which he said that surveillance had been used to develop a case by the Office of Foreign Assets Control (OFAC) against Al-Haramain, and Congressional testimony by Bush administration officials that disclosed the manner in which electronic surveillance was conducted. In the summary of his decision, Vaughn wrote, “[The Foreign Intelligence Surveillance Act] FISA takes precedence over the state secrets privilege in this case,” and “defendants have failed to meet their burden to [provide] evidence that a FISA warrant was obtained, that plaintiffs were not surveilled or that the surveillance was otherwise lawful.” [Al-Haramain v. Obama, 3/31/2010; Washington Post, 4/1/2010, pp. A04]

Entity Tags: George W. Bush, Asim Ghafoor, Anthony J. Coppolino, Alberto R. Gonzales, Al Haramain Islamic Foundation (Oregon branch), “Justice Department”, Barack Obama, Federal Bureau of Investigation, Robert S. Mueller III, Suliman al-Buthe, Keith Alexander, Eric Holder, US Department of the Treasury, Wendell Belew, Vaughn Walker, National Security Agency

Timeline Tags: Civil Liberties

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