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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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Senator Benjamin Tillman, an ardent segregationist who once said, ‘My Democracy means white supremacy.’ Senator Benjamin Tillman, an ardent segregationist who once said, ‘My Democracy means white supremacy.’ [Source: Black Americans in Congress]President Theodore “Teddy” Roosevelt signs the Tillman Act into law. The Act prohibits monetary contributions to national political campaigns by corporations and national banks. Roosevelt, dogged by allegations that he had accepted improper donations during his 1904 presidential campaign, has pushed for such restrictions since he took office (see August 23, 1902 and December 5, 1905). [Federal Elections Commission, 1998; Center for Responsive Politics, 2002 pdf file; Moneyocracy, 2/2012] Senator Benjamin Tillman (D-SC), later described by National Public Radio as a “populist and virulent racist,” sponsored the bill. [National Public Radio, 2012] In 1900, Tillman was quoted as saying about black voters: “We have done our level best. We have scratched our heads to find out how we could eliminate every last one of them. We stuffed ballot boxes. We shot them. We are not ashamed of it.” [Atlas, 2010, pp. 205] Unfortunately, the law is easily circumvented. Businesses and corporations give employees large “bonuses” with the understanding that the employee then gives the bonus to a candidate “endorsed” by the firm. Not only do the corporations find and exploit this loophole, they receive an additional tax deduction for “employee benefits.” The law will be amended to cover primary elections in 1911 (see 1911). [Campaign Finance Timeline, 1999]

Entity Tags: Benjamin Tillman, Theodore Roosevelt, Tillman Act

Timeline Tags: Civil Liberties

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

The NSA, working with British intelligence, begins secretly intercepting and reading millions of telegraph messages between US citizens and international senders and recipients. The clandestine program, called Operation Shamrock and part of a larger global surveillance network collectively known as Echelon (see April 4, 2001 and Before September 11, 2001), begins shortly after the end of World War II, and continues through 1975, when it is exposed by the “Church Committee,” the Senate investigation of illegal activities by US intelligence organizations (see April, 1976). [Telepolis, 7/25/2000] The program actually predates the NSA, originating with the Armed Forces Security Agency (AFSA) then continuing when that turned into NSA (see 1952). [Pensito Review, 5/13/2006] The program operates in tandem with Project Minaret (see 1967-1975). Together, the two programs spy on both foreign sources and US citizens, especially those considered “unreliable,” such as civil rights leaders and antiwar protesters, and opposition figures such as politicians, diplomats, businessmen, trades union leaders, non-government organizations like Amnesty International, and senior officials of the Catholic Church. The NSA receives the cooperation of such telecommunications firms as Western Union, RCA, and ITT. [Telepolis, 7/25/2000] (Those companies are never required to reveal the extent of their involvement with Shamrock; on the recommendations of Defense Secretary Donald Rumsfeld and presidential chief of staff Dick Cheney, in 1975 President Ford extends executive privilege to those companies, precluding them from testifying before Congress.) [Pensito Review, 5/13/2006] In the 1960s, technological advances make it possible for computers to search for keywords in monitored messages instead of having human analysts read through all communications. In fact, the first global wide-area network, or WAN, is not the Internet, but the international network connecting signals intelligence stations and processing centers for US and British intelligence organizations, including the NSA, and making use of sophisticated satellite systems such as Milstar and Skynet. (The NSA also builds and maintains one of the world’s first e-mail networks, completely separate from public e-mail networks, and highly secret.) At the program’s height, it operates out of a front company in Lower Manhattan code-named LPMEDLEY, and intercepts 150,000 messages a month. In August 1975, NSA director Lieutenant General Lew Allen testifies to the House of Representatives’ investigation of US intelligence activities, the Pike Committee (see January 29, 1976), that “NSA systematically intercepts international communications, both voice and cable.” He also admits that “messages to and from American citizens have been picked up in the course of gathering foreign intelligence,” and acknowledges that the NSA uses “watch lists” of US citizens “to watch for foreign activity of reportable intelligence interest.” [Telepolis, 7/25/2000] The Church Committee’s final report will will call Shamrock “probably the largest government interception program affecting Americans ever undertaken.” [Church Committee, 4/23/1976] Shortly after the committee issues its report, the NSA terminates the program. Since 1978, the NSA and other US intelligence agencies have been restrained in their wiretapping and surveillance of US citizens by the Foreign Intelligence Surveillance Act (see 1978). Admiral Bobby Ray Inman, who will become the NSA’s director in 1977, and who testifies before the Church Committee as director of Naval Intelligence, will later say that he worked actively to help pass FISA: “I became convinced that for almost anything the country needed to do, you could get legislation to put it on a solid foundation. There was the comfort of going out and saying in speeches, ‘We don’t target US citizens, and what we do is authorized by a court.’” [Pensito Review, 5/13/2006] Shamrock is considered unconstitutional by many US lawmakers, and in 1976 the Justice Department investigates potential criminal offenses by the NSA surrounding Shamrock. Part of the report will be released in 1980; that report will confirm that the Shamrock data was used to further the illegal surveillance activities of US citizens as part of Minaret. [Telepolis, 7/25/2000]
bullet After 9/11, the NSA will once again escalate its warrantless surveillance of US citizens, this time monitoring and tracking citizens’ phone calls and e-mails (see After September 11, 2001). It will also begin compiling an enormous database of citizens’ phone activities, creating a “data mine” of information on US citizens, ostensibly for anti-terrorism purposes (see October 2001).

Entity Tags: Western Union, Pike Committee, National Security Agency, Bobby Ray Inman, Church Committee, International Telephone and Telegraph, Radio Corporation of America

Timeline Tags: Civil Liberties

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

Chief Justice Fred Vinson.Chief Justice Fred Vinson. [Source: Kansas State Historical Society]The US Supreme Court upholds the power of the federal government’s executive branch to withhold documents from a civil suit on the basis of executive privilege and national security (see October 25, 1952). The case, US v Reynolds, overturns an appellate court decision that found against the government (see December 11, 1951). Originally split 5-4 on the decision, the Court goes to 6-3 when Justice William O. Douglas joins the majority. The three dissenters, Justices Hugo Black, Felix Frankfurter, and Robert Jackson, refuse to write a dissenting opinion, instead adopting the decision of the appellate court as their dissent.
'State Secrets' a Valid Reason for Keeping Documents out of Judicial, Public Eye - Chief Justice Fred Vinson writes the majority opinion. Vinson refuses to grant the executive branch the near-unlimited power to withhold documents from judicial review, as the government’s arguments before the court implied (see October 21, 1952), but instead finds what he calls a “narrower ground for defense” in the Tort Claims Act, which compels the production of documents before a court only if they are designated “not privileged.” The government’s claim of privilege in the Reynolds case was valid, Vinson writes. But the ruling goes farther; Vinson upholds the claim of “state secrets” as a reason for withholding documents from judicial review or public scrutiny. In 2008, author Barry Siegel will write: “In truth, only now was the Supreme Court formally recognizing the privilege, giving the government the precedent it sought, a precedent binding on all courts throughout the nation. Most important, the Court was also—for the first time—spelling out how the privilege should be applied.” Siegel will call the Reynolds ruling “an effort to weigh competing legitimate interests,” but the ruling does not allow judges to see the documents in order to make a decision about their applicability in a court case: “By instructing judges not to insist upon examining documents if the government can satisfy that ‘a reasonable danger’ to national security exists, Vinson was asking jurists to fly blind.” Siegel will mark the decision as “an act of faith. We must believe the government,” he will write, “when it claims [the accident] would reveal state secrets. We must trust that the government is telling the truth.”
Time of Heightened Tensions Drives Need for Secrecy - Vinson goes on to note, “[W]e cannot escape judicial notice that this is a time of vigorous preparation for the national defense.” Locked in the Cold War with the Soviet Union, and fighting a war in Korea, the US is, Vinson writes, in a time of crisis, and one where military secrets must be kept and even encouraged. [U. S. v. Reynolds, 3/9/1953; Siegel, 2008, pp. 171-176]
Future Ramifications - Reflecting on the decision in 2008, Siegel will write that while the case will not become as well known as many other Court decisions, it will wield significant influence. The ruling “formally recognized and established the framework for the government’s ‘state secrets’ privilege—a privilege that for decades had enabled federal agencies to conceal conduct, withhold documents, and block civil litigation, all in the name of national secrecy.… By encouraging judicial deference when the government claimed national security secrets, Reynolds had empowered the Executive Branch in myriad ways. Among other things, it had provided a fundamental legal argument for much of the Bush administration’s response to the 9/11 terrorist attacks. Enemy combatants such as Yaser Esam Hamdi (see December 2001) and Jose Padilla (see June 10, 2002), for many months confined without access to lawyers, had felt the breath of Reynolds. So had the accused terrorist Zacarias Moussaoui when federal prosecutors defied a court order allowing him access to other accused terrorists (see March 22, 2005). So had the Syrian-Canadian Maher Arar (see September 26, 2002), like dozens of others the subject of a CIA extraordinary rendition to a secret foreign prison (see After September 11, 2001). So had hundreds of detainees at the US Navy Base at Guantanamo Bay, held without charges or judicial review (see September 27, 2001). So had millions of American citizens, when President Bush, without judicial knowledge or approval, authorized domestic eavesdropping by the National Security Agency (see Early 2002). US v. Reynolds made all this possible. The bedrock of national security law, it had provided a way for the Executive Branch to formalize an unprecedented power and immunity, to pull a veil of secrecy over its actions.” [Siegel, 2008, pp. ix-x]

Entity Tags: William O. Douglas, Zacarias Moussaoui, US Supreme Court, Yaser Esam Hamdi, Robert Jackson, Jose Padilla, Felix Frankfurter, Bush administration (43), Fred Vinson, Barry Siegel, George W. Bush, Hugo Black, Maher Arar

Timeline Tags: Civil Liberties

In the case of United States v. Auto Workers, the Supreme Court reverses a lower court’s dismissal of an indictment against a labor union accused of violating federal laws prohibiting corporations and labor unions from making contributions or expenditures in federal elections (see June 23, 1947). Justice Felix Frankfurter writes the majority opinion; Chief Justice Earl Warren and Justices William O. Douglas and Hugo Black dissent. In a 5-3 decision, the Court finds the International Union United Automobile, Aircraft, and Agricultural Implement Workers of America liable for its practice of using union dues to sponsor television commercials relating to the 1954 Congressional elections. [UNITED STATES v. AUTO. WORKERS, 2011; Moneyocracy, 2/2012] Law professor Allison R. Hayward will later write that in her opinion the Court finding created “a fable of campaign finance reform… dictated by political opportunism. Politicians used reform to exploit public sentiment and reduce rivals’ access to financial resources.… [J]udges should closely examine campaign finance regulation and look for the improper use of legislation for political gain instead of simply deferring to Congress. Undue deference to the Auto Workers fable of reform could lead to punishment for the exercise of political rights. Correcting the history is thus essential to restoring proper checks on campaign finance legislation.” Hayward will argue that Frankfurter used a timeline of Congressional efforts to curb and reform campaign finance practices as an excuse to allow powerful political interests to exert restrictions on political opponents with less access to large election finance contributions. The case is used uncritically, and sometimes unfairly, to influence later campaign reform efforts, Hayward will argue. [Hayward, 6/17/2008 pdf file]

Entity Tags: US Supreme Court, Earl Warren, Allison R. Hayward, Felix Frankfurter, International Union United Automobile, Aircraft, and Agricultural Implement Workers of America, William O. Douglas, Hugo Black

Timeline Tags: Civil Liberties

The NSA launches the first of seven satellites, code-named “Canyon,” that can pick up various types of voice and data traffic from Earth orbit. Canyon will lead to a more sophisticated satellite intelligence system, code-named “Rhyolite” (later “Aquacade”—see Early 1970s). [Federation of American Scientists, 7/17/1997]

Entity Tags: Rhyolite, National Security Agency, Canyon

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

The US and the Soviet Union sign the Anti-Ballistic Missile Systems (ABM) Treaty. It will be ratified by the US Senate in August 1972, and will go into force in October 1972. Originally, the treaty agrees that each nation can have only two ABM deployment areas, located so that those areas cannot provide a nationwide ABM defense or become the basis for developing one. In essence, the ABM Treaty prevents either nation from developing a missile defense system (see March 23, 1983), and allows each country the likelihood of destroying the other with an all-out nuclear barrage. The treaty puts in place the doctrine of MAD, or Mutual Assured Destruction, which states that because both nations can obliterate the other in a nuclear exchange, neither one will trigger such a strike. In 1976, an addendum to the treaty further limits the number of ABM deployment areas from two to one; the Soviets will deploy a rudimentary ABM system around Moscow, but the US never does, and even deactivates its single ABM site near Grand Forks, North Dakota. In 2001, US President George W. Bush will unilaterally withdraw from the treaty (see December 13, 2001 and June 14, 2002). [Federation of American Scientists, 1/15/2008]

Entity Tags: Nixon administration, George W. Bush

Timeline Tags: US International Relations

In the aftermath of the Watergate scandal (see August 8, 1974), amendments to the Federal Election Campaign Act (FECA—see February 7, 1972) provide the option for full public financing for presidential general elections, matching funds for presidential primaries, and public expenditures for presidential nominating conventions. The amendments also set spending limits on presidential primaries and general elections as well as for House and Senate primaries. The amendments give some enforcement provisions to previously enacted spending limits on House and Senate general elections. They set strict spending guidelines: for presidential campaigns, each candidate is limited to $10 million for primaries, $20 million for general elections, and $2 million for nominating conventions; Senatorial candidates are limited to $100,000 or eight cents per eligible voter, whichever is higher, for primaries, and higher limits of $150,000 or 12 cents per voter for general elections; House candidates are limited to $70,000 each for primaries and general elections. Loans are treated as contributions. The amendments create an individual contribution limit of $1,000 to a candidate per election and a PAC (political action committee) contribution limit of $5,000 to a candidate per election (this provision will trigger what the Center for Responsive Politics will call a “PAC boom” in the late 1970s). The total aggregate contributions from an individual are set at $25,000 per year. Candidates face further restrictions on how much personal wealth they can contribute to their own campaign. The 1940 ban on contributions from government employees and contract workers (see 1940) is repealed, as are the 1971 limitations on media spending. Perhaps most importantly, the amendments create the Federal Election Commission (FEC) to oversee and administer campaign law. (Before, enforcement and oversight responsibilities were spread among the Clerk of the House, the Secretary of the Senate, and the Comptroller General of the United States General Accounting Office (GAO), with the Justice Department responsible for prosecuting violators (see 1967).) The FEC is led by a board of six commissioners, with Congress appointing four of those commissioners and the president appointing two more. The Secretary of the Senate and the Clerk of the House are designated nonvoting, exofficio commissioners. [Federal Elections Commission, 1998; Campaign Finance Timeline, 1999; Center for Responsive Politics, 2002 pdf file] Part of the impetus behind the law is the public outrage over the revelations of how disgraced ex-President Nixon’s re-election campaign was funded, with millions of dollars in secret, illegal corporate contributions being funneled into the Nixon campaign. [Campaign Finance Timeline, 1999; Connecticut Network, 2006 pdf file]

Entity Tags: Center for Responsive Politics, Federal Election Campaign Act of 1972, Federal Election Commission, US Department of Justice

Timeline Tags: Civil Liberties

The Supreme Court case Buckley v. Valeo, filed by Senator James L. Buckley (R-NY) and former Senator Eugene McCarthy (D-WI) against the Secretary of the Senate, Francis R. Valeo, challenges the constitutionality of the Federal Election Campaign Act (FECA—see February 7, 1972 and 1974) on free-speech grounds. The suit also named the Federal Election Commission (FEC) as a defendant. A federal appeals court validated almost all of FECA, and the plaintiffs sent the case to the Supreme Court. The Court upholds the contribution limits set by FECA because those limits help to safeguard the integrity of elections. However, the court overrules the limits set on campaign expenditures, ruling: “It is clear that a primary effect of these expenditure limitations is to restrict the quantity of campaign speech by individuals, groups, and candidates. The restrictions… limit political expression at the core of our electoral process and of First Amendment freedoms.” One of the most important aspects of the Supreme Court’s ruling is that financial contributions to political campaigns can be considered expressions of free speech, thereby allowing individuals to essentially make unrestricted donations. The Court implies that expenditure limits on publicly funded candidates are allowable under the Constitution, because presidential candidates may disregard the limits by rejecting public financing (the Court will affirm this stance in a challenge brought by the Republican National Committee in 1980).
Provisions of 'Buckley' - The Court finds the following provisions constitutional:
bullet Limitations on contributions to candidates for federal office;
bullet Disclosure and record-keeping provisions; and
bullet The public financing of presidential elections.
However, the Court finds these provisions unconstitutional:
bullet Limitations on expenditures by candidates and their committees, except for presidential candidates who accept public funding;
bullet The $1,000 limitation on independent expenditures;
bullet The limitations on expenditures by candidates from their personal funds; and
bullet The method of appointing members of the FEC, holding that as the method stands, it violates the principle of separation of powers.
In May 1976, following the Court’s ruling, the FEC will reconstitute its board with six presidential appointees after Senate confirmation. [Federal Elections Commission, 3/1997; Federal Elections Commission, 1998; Campaign Finance Timeline, 1999; Center for Responsive Politics, 2002 pdf file; Casebriefs, 2012]
No Clear Authors - The opinion is labeled per curiam, a term usually reserved for brief and minor Court decisions when authorship of an opinion is less relevant. It is unclear exactly which Justices write the opinion. Most Court observers believe Justice William Brennan writes the bulk of the opinion, but Brennan’s biographers will later note that sections of the opinion are authored by Chief Justice Warren Burger and Justices Potter Stewart, Lewis Powell, and William Rehnquist. The opinion is an amalgamation of multiple authors, reflecting the several compromises made in the resolution of the decision. [New Yorker, 5/21/2012]
Criticism of 'Buckley' - Critics claim that the ruling enshrines the principle of “money equals speech.” The ruling also says that television and radio advertisements that do not expressly attack an individual candidate can be paid for with “unregulated” funds. This leads organizations to begin airing “attack ads” that masquerade as “issue ads,” ostensibly promoting or opposing a particular social or political issue and avoiding such words as “elect” or “defeat.” [National Public Radio, 2012] In 1999, law professor Burt Neuborne will write: “Buckley is like a rotten tree. Give it a good, hard push and, like a rotten tree, Buckley will keel over. The only question is in which direction.” Neuborne will write that his preference goes towards reasonable federal regulations of spending and contributions, but “any change would be welcome” in lieu of this decision, and even a completely deregulated system would be preferable to Buckley’s legal and intellectual incoherence. [New York Times, 5/3/2010] In 2011, law professor Richard Hasen will note that while the Buckley decision codifies the idea that contributions are a form of free speech, it also sets strict limitations on those contributions. Calling the decision “Solomonic,” Hasen will write that the Court “split the baby, upholding the contribution limits but striking down the independent spending limit as a violation of the First Amendment protections of free speech and association.” Hasen will reflect: “Buckley set the main parameters for judging the constitutionality of campaign finance restrictions for a generation. Contribution limits imposed only a marginal restriction on speech, because the most important thing about a contribution is the symbolic act of contributing, not the amount. Further, contribution limits could advance the government’s interest in preventing corruption or the appearance of corruption. The Court upheld Congress’ new contribution limits. It was a different story with spending limits, which the Court said were a direct restriction on speech going to the core of the First Amendment. Finding no evidence in the record then that independent spending could corrupt candidates, the Court applied a tough ‘strict scrutiny’ standard of review and struck down the limits.” [Slate, 10/25/2011] In 2012, reporter and author Jeffrey Toobin will call it “one of the Supreme Court’s most complicated, contradictory, incomprehensible (and longest) opinions.” [New Yorker, 5/21/2012]

Entity Tags: Federal Election Campaign Act of 1972, Federal Election Commission, James Buckley, Jeffrey Toobin, US Supreme Court, Eugene McCarthy, Lewis Powell, Potter Stewart, Burt Neuborne, William Rehnquist, Warren Burger, Richard L. Hasen, William Brennan

Timeline Tags: Civil Liberties

Amendments to the 1971 Federal Election Campaign Act (FECA—see February 7, 1972 and 1974) passed by Congress after the controversial Buckley ruling by the Supreme Court (see January 30, 1976) bring FECA into conformity with the Court’s decision. The amendments repeal expenditure limits except for presidential candidates who accept public funding, and revise the provisions governing the appointment of commissioners to the Federal Election Commission (FEC). The amendments also limit the scope of PAC fundraising by corporations and labor unions. The amendments limit individual contributions to national political parties to $20,000 per year, and individual contributions to a PAC to $5,000 per year. [Federal Elections Commission, 1998; Center for Responsive Politics, 2002 pdf file] However, the Constitution restricts what Congress can, or is willing, to do, and the amendments are relatively insignificant. [Campaign Finance Timeline, 1999]

Entity Tags: Federal Election Commission, Federal Election Campaign Act of 1972, US Supreme Court

Timeline Tags: Civil Liberties

The US Foreign Intelligence Advisory Board recommended in 1970 that “economic intelligence be considered a function of national security” equal to that of other intelligence. In 1977, the NSA, CIA, and Department of Commerce forms a joint “Office of Intelligence Liaison” (later renamed the “Office of Executive Support”) specifically authorized to handle “foreign intelligence” of interest to the Commerce Department, much of it provided by the NSA. The other countries using Echelon, the NSA’s satellite surveillance program, which include Britain, Canada, Australia, and New Zealand, all operate similar programs. President Bill Clinton will extend this operation in 1993. In 1993, the European company Panavia will be specifically targeted over aircraft sales to the Middle East. In 1994, US companies will be given NSA and CIA intelligence intercepts that help them win contracts in Indonesia. Other information that will be provided by US intelligence to US and allied corporations include information about the emission standards for Japanese automobiles, 1995 trade negotiations over the US importing of Japanese luxury cars, France’s participation in the GATT trade negotiations of 1993, and the 1997 Asian-Pacific Economic Conference. [Science and Technology Assessments Office, 8/15/2000]

Entity Tags: William Jefferson (“Bill”) Clinton, Issuetsdeah, National Security Agency, Office of Executive Support, Panavia

Timeline Tags: Civil Liberties

Following the revelations of the Church Committee’s investigation into the excesses of the CIA (see April, 1976), and the equally revealing New York Times article documenting the CIA’s history of domestic surveillance against US citizens for political purposes (see December 21, 1974), Congress passes the Foreign Intelligence Surveillance Act (FISA). In essence, FISA prohibits physical and electronic surveillance against US citizens except in certain circumstances affecting national security, under certain guidelines and restrictions, with court warrants issued by the Foreign Intelligence Surveillance Court (FISC), operating within the Department of Justice as well as with criminal warrants. FISA restricts any surveillance of US citizens (including US corporations and permanent foreign residents) to those suspected of having contact with “foreign powers” and terrorist organizations. FISA gives a certain amount of leeway for such surveillance operations, requiring that the administration submit its evidence for warrantless surveillance to FISC within 24 hours of its onset and keeping the procedures and decisions of FISC secret from the public. [Electronic Frontier Foundation, 9/27/2001; Legal Information Institute, 11/30/2004] On September 14, 2001, Congress will pass a revision of FISA that extends the time period for warrantless surveillance to 72 hours. The revision, part of the Intelligence Authorization Act of 2002, will also lower the standard for the issuance of wiretap warrants and make legal “John Doe,” or generic, warrants that can be used without naming a particular target. FISA revisions will also expand the bounds of the technologies available to the government for electronic and physical surveillance, and broaden the definitions of who can legally be monitored. [US Senate, 9/14/2001; Senator Jane Harman, 2/1/2006]

Entity Tags: Foreign Intelligence Surveillance Court, New York Times, Foreign Intelligence Surveillance Act, US Department of Justice, Church Committee

Timeline Tags: Civil Liberties

The Supreme Court, in the case of First National Bank of Boston v. Bellotti, rules 5-4 that corporations have the First Amendment right to make contributions in order to influence political processes. Writing for the majority, Justice Lewis Powell finds that under the recent Buckley ruling (see January 30, 1976), corporate political donations are protected speech. Powell’s opinion finds that a Massachusetts criminal statute prohibiting corporations from spending money for the purpose of “influencing or affecting” voters’ opinions is not legitimate. The split among the justices is unusual, with Powell, a conservative, being joined by two more conservatives, Chief Justice Warren Burger and Potter Stewart, and liberals Harry Blackmun and John Paul Stevens. The four dissenters are liberals William Brennan and Thurgood Marshall, and conservatives Byron White and William Rehnquist. [FIRST NATIONAL BANK OF BOSTON v. BELLOTTI, 2012; Moneyocracy, 2/2012] Rehnquist’s standalone dissent advocates for far stricter controls on corporate spending in elections than most of the other justices’ dissents, with Rehnquist writing that such spending could “pose special dangers in the political sphere.” [Reclaim Democracy, 4/26/1978; FIRST NATIONAL BANK OF BOSTON v. BELLOTTI, 2012]

Entity Tags: Lewis Powell, Byron White, John Paul Stevens, William Rehnquist, Warren Burger, Harry Blackmun, William Brennan, US Supreme Court, Potter Stewart, Thurgood Marshall

Timeline Tags: Civil Liberties

Oil billionaire David Koch runs for vice president on the Libertarian Party ticket. David and his brother Charles are the primary backers of hard-right libertarian politics in the US (see August 30, 2010); Charles, the dominant brother, is determined to tear government “out at the root,” as he will later be characterized by libertarian Brian Doherty. The brothers have thrown their support behind Libertarian presidential candidate Ed Clark, who is running against Republican Ronald Reagan from the right of the political spectrum. The brothers are frustrated by the legal limits on campaign financing, and they persuade the party to place David on the ticket as vice president, thereby enabling him to spend as much of his personal fortune as he likes. The Libertarian’s presidential campaign slogan is, “The Libertarian Party has only one source of funds: You.” In reality, the Koch brothers’ expenditures of over $2 million is the campaign’s primary source of funding. Clark tells a reporter that the Libertarians are preparing to stage “a very big tea party” because people are “sick to death” of taxes. The Libertarian Party platform calls for the abolition of the FBI and the CIA, as well as of federal regulatory agencies, such as the Securities and Exchange Commission and the Department of Energy. The platform proposes the abolition of Social Security, minimum-wage laws, gun control, and all personal and corporate income taxes; in return, it proposes the legalization of prostitution, recreational drugs, and suicide. Government should be reduced to only one function, the party proclaims: the protection of individual rights. Conservative eminence William F. Buckley Jr. calls the movement “Anarcho-Totalitarianism.” The Clark-Koch ticket receives only one percent of the vote in the November 1980 elections, forcing the Koch brothers to realize that their brand of politics isn’t popular. In response, Charles Koch becomes openly scornful of conventional politics. “It tends to be a nasty, corrupting business,” he says. “I’m interested in advancing libertarian ideas.” Doherty will later write that both Kochs come to view elected politicians as merely “actors playing out a script.” Doherty will quote a longtime confidant of the Kochs as saying that after the 1980 elections, the brothers decide they will “supply the themes and words for the scripts.” In order to alter the direction of America, they had to “influence the areas where policy ideas percolate from: academia and think tanks.” [New Yorker, 8/30/2010]

Entity Tags: Libertarian Party, Brian Doherty, Charles Koch, Ronald Reagan, David Koch, William F. Buckley, Ed Clark

Timeline Tags: Domestic Propaganda

President Jimmy Carter issues Executive Order 12129, “Exercise of Certain Authority Respecting Electronic Surveillance,” which implements the executive branch details of the recently enacted Foreign Intelligence Surveillance Act of 1978 (FISA) (see 1978). [Jimmy Carter, 5/23/1979] The order is issued in response to the Iranian hostage crisis (see November 4, 1979-January 20, 1981). [Hawaii Free Press, 12/28/2005] While many conservatives will later misconstrue the order as allowing warrantless wiretapping of US citizens in light of the December 2005 revelation of George W. Bush’s secret wiretapping authorization (see Early 2002), [Think Progress, 12/20/2005] the order does not do this. Section 1-101 of the order reads, “Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.” The Attorney General must certify under the law that any such warrantless surveillance must not contain “the contents of any communication to which a United States person is a party.” The order does not authorize any warrantless wiretapping of a US citizen without a court warrant. [Jimmy Carter, 5/23/1979; 50 U.S.C. 1802(a); Think Progress, 12/20/2005] The order authorizes the Attorney General to approve warrantless electronic surveillance to obtain foreign intelligence, if the Attorney General certifies that, according to FISA, the communications are exclusively between or among foreign powers, or the objective is to collect technical intelligence from property or premises under what is called the “open and exclusive” control of a foreign power. There must not be a “substantial likelihood” that such surveillance will obtain the contents of any communications involving a US citizen or business entity. [Federal Register, 2/4/2006]

Entity Tags: Foreign Intelligence Surveillance Act, George W. Bush, James Earl “Jimmy” Carter, Jr.

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

The federal government passes even more amendments to the 1971 Federal Election Campaign Act (FECA—see February 7, 1972, 1974, and May 11, 1976). The new amendments simplify campaign finance reporting requirements, encourage political party activity at the state and local levels, and increase the public funding grants for presidential nominating conventions. The new amendments prohibit the Federal Election Commission (FEC) from conducting random campaign audits. They also allow state and local parties to spend unlimited amounts on federal campaign efforts, including the production and distribution of campaign materials such as signs and bumper stickers used in “get out the vote” (GOTV) efforts. [Federal Elections Commission, 1998; Center for Responsive Politics, 2002 pdf file] The amendment creates what later becomes known as “soft money,” or donations and contributions that are essentially unregulated as long as they ostensibly go for “party building” expenses. The amendments allow corporations, labor unions, and wealthy individuals to contribute vast sums to political parties and influence elections. By 1988, both the Republican and Democratic Parties will spend inordinate and controversial amounts of “soft money” in election efforts. [National Public Radio, 2012] While the amendments were envisioned as strengthening campaign finance law, many feel that in hindsight, the amendments actually weaken FECA and campaign finance regulation. Specifically, the amendments reverse much of the 1974 amendments, and allow money once prohibited from being spent on campaigns to flow again. [Campaign Finance Timeline, 1999]

Entity Tags: Federal Election Commission, Federal Election Campaign Act of 1972

Timeline Tags: Civil Liberties

KochPAC logo.KochPAC logo. [Source: KochPAC (.com)]After their stinging loss during the November 1980 presidential campaign, the billionaire Koch brothers, Charles and David, decide that they need to work to inculcate their brand of hard-right libertarianism into the electorate through indirect means (see 1979-1980). Therefore, they begin spending vast amounts of their personal fortunes on what purport to be independent think tanks and other political or ideological organizations. At the same time, the brothers become political recluses, rarely speaking in public and rarely acknowledging the breadth or the direction of their donations. It is hard to know exactly how much the Kochs spend and where they spend it, though public records give some of the picture. Between 1998 and 2008, Charles Koch’s foundation spends over $48 million on political funding. The Claude R. Lambe Charitable Foundation, controlled by Charles and his wife, spends over $28 million. David Koch’s foundation spends over $120 million. Koch Industries, controlled primarily by Charles, spends over $50 million on lobbying efforts. Their political action committee, KochPAC, donates around $8 million, almost all of it going to Republicans. In 2010, as in other years, Koch Industries leads all other energy companies in political donations. The brothers spend over $2 million of their personal fortunes on political donations, almost all of it going to Republicans. Ari Rabin-Havt of the progressive media watchdog organization Media Matters will say that the Kochs’ effort is unusual in its marshalling of corporate and personal funds: “Their role, in terms of financial commitments, is staggering.” Lee Fang, writing for the liberal blog ThinkProgress (an arm of the Center for American Progress), calls the Kochs “the billionaires behind the hate.” Some believe that the Kochs have either skirted, or outright broken, laws controlling tax-exempt giving. Charitable foundations must conduct exclusively nonpartisan activities that promote the public welfare. But in 2004, a report by the National Committee for Responsive Philanthropy, a watchdog group, describes the Kochs’ foundations as being self-serving, and concludes, “These foundations give money to nonprofit organizations that do research and advocacy on issues that impact the profit margin of Koch Industries.” The Kochs also use their charitable foundations to fund hard-right political organizations that, according to reporter Jane Mayer, “aim to push the country in a libertarian direction,” including: the Institute for Justice, which files lawsuits opposing state and federal regulations; the Institute for Humane Studies, which underwrites libertarian academics; and the Bill of Rights Institute, which promotes a conservative interpretation of the Constitution. David Koch acknowledges that the family exerts tight ideological control. “If we’re going to give a lot of money, we’ll make darn sure they spend it in a way that goes along with our intent,” he tells a reporter. “And if they make a wrong turn and start doing things we don’t agree with, we withdraw funding.” [New Yorker, 8/30/2010]

Entity Tags: Institute for Justice, Charles Koch, Bill of Rights Institute, Ari Rabin-Havt, Claude R. Lambe Charitable Foundation, Institute for Humane Studies, Koch Industries, National Committee for Responsive Philanthropy, Jane Mayer, David Koch, Lee Fang, KochPAC

Timeline Tags: Domestic Propaganda

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

Citizens for a Sound Economy logo.Citizens for a Sound Economy logo. [Source: Greater Houston Pachyderm Club]The billionaire Koch brothers, Charles and David, launch the first of a number of “citizen advocacy” groups they either found or fund, Citizens for a Sound Economy. The Kochs are staunch right-wing libertarians determined to successfully combat government regulation and oversight of businesses, government taxation, and government funding of social programs (see August 30, 2010). Between 1986 and 1993, the brothers will provide $7.9 million to the group, even as it promotes itself as a “grassroots,” “citizen-driven” organization. (Such organizations that call themselves “citizen-based” while actually being founded, operated, and funded by corporate interests are called “astroturf” organizations.) Matt Kibbe, who will go on to head a Koch-funded lobbying organization, FreedomWorks, will later say of Citizens for a Sound Economy that its driving force was to take the Kochs’ “heavy ideas and translate them for mass America.… We read the same literature Obama did about nonviolent revolutions—Saul Alinsky, Gandhi, Martin Luther King. We studied the idea of the Boston Tea Party as an example of nonviolent social change. We learned we needed boots on the ground to sell ideas, not candidates.” One organization participant will say that the brothers are “very controlling, very top down. You can’t build an organization with them. They run it.” By 1993, the organization will become powerful enough to successfully thwart the Clinton administration’s efforts to place a “BTU tax” on energy, and mounts successful “citizen protests” against Democrats, sometimes funnelling millions of Koch monies into the political campaigns of their Republican opponents. [New Yorker, 8/30/2010]

Entity Tags: Clinton administration, Charles Koch, David Koch, Citizens for a Sound Economy, Matt Kibbe, FreedomWorks

Timeline Tags: Domestic Propaganda

The Supreme Court, in the case of Federal Election Commission v. NCPAC, rules that political action committees (PACs) can spend more than the $1,000 mandated by federal law (see February 7, 1972, 1974, and May 11, 1976). The Democratic Party and the FEC argued that large expenditures by the National Conservative Political Action Committee (NCPAC) in 1975 violated the Federal Election Campaign Act (FECA), which caps spending by independent political action committees in support of a publicly funded presidential candidate at $1,000. The Court rules 7-2 in favor of NCPAC, finding that the relevant section of FECA encroaches on the organization’s right to free speech (see January 30, 1976). Justice William Rehnquist writes the majority opinion, joined by fellow conservatives Chief Justice Warren Burger, Sandra Day O’Connor, and Lewis Powell, and liberals Harry Blackmun, John Paul Stevens, and William Brennan. Justices Byron White and Thurgood Marshall dissent from the majority. [Oyez (.org), 2012; Moneyocracy, 2/2012]

Entity Tags: Federal Election Commission, William Brennan, William Rehnquist, Byron White, Federal Election Campaign Act of 1972, US Supreme Court, Warren Burger, Sandra Day O’Connor, Harry Blackmun, John Paul Stevens, Thurgood Marshall, National Conservative Political Action Committee, Democratic Party, Lewis Powell

Timeline Tags: Civil Liberties

Steven Calabresi joins the Justice Department. Calabresi is a young conservative lawyer who has clerked for appeals court Robert Bork, who failed to secure a position on the Supreme Court just months before (see July 1-October 23, 1987). Calabresi, a co-founder of the Federalist Society of conservative lawyers and judges, joins forces with another ambitious young Justice Department lawyer, John Harrison, and the two begin working to expand the power of the president. Calabresi and Harrison decide that an aggressive use of presidential signing statements can advance the president’s authority to the detriment of the legislative and judicial branches. Unfazed by a recent judicial rejection of just such signing statement usage (see 1984-1985), Calabresi and Harrison write a memo to Attorney General Edwin Meese advocating the issuing of more signing statements as part of a larger strategy to increase the president’s influence over the law. Calabresi and Harrison are interested in how what they call “activist judges” use the legislative history of a bill that became law to interpret that law’s meaning in subsequent judicial actions. The two lawyers believe that by issuing signing statements, the president can create a parallel record of presidential interpretations of potentially ambiguous laws to help guide judicial decisions. Meese approves of the idea, and in December has the West Publishing Company, which prints the US Code Congressional and Administration News, the standard collection of bills’ legislative history, begin including presidential signing statements in its publications. In 2007, author Charlie Savage will call Meese’s move “a major step in increasing the perceived legitimacy of the device.” [Savage, 2007, pp. 232] In 2007, Calabresi will say: “I initially thought of signing statements as presidential legislative history. I’ve subsequently come to think of them as being important vehicles by which presidents can control subordinates in the executive branch. They subsequently came to be important to the unitary executive [theory of presidential power].” [Savage, 2007, pp. 234]

Entity Tags: John Harrison, Charlie Savage, Federalist Society, West Publishing Company, US Department of Justice, Edwin Meese, Robert Bork, Steven Calabresi, US Supreme Court

Timeline Tags: Civil Liberties

The Supreme Court rules in Federal Election Commission v. Massachusetts Citizens for Life that an anti-abortion organization can print flyers promoting “pro-life” candidates in the weeks before an election, and that the portion of the Federal Election Campaign Act (FECA—see February 7, 1972, 1974, and May 11, 1976) that bars distribution of such materials to the general public restricts free speech. In September 1978, the Massachusetts Citizens For Life (MCFL) spent almost $10,000 printing flyers captioned “Everything You Need to Vote Pro-Life,” which included information about specific federal and state candidates’ positions on abortion rights, along with exhortations to “vote pro-life” and “No pro-life candidate can win in November without your vote in September.” The Federal Election Commission (FEC) ruled that MCFL’s expenditures violated FECA’s ban on corporate spending in connection with federal elections. A Massachusetts district court ruled against the FEC, finding that the flyer distribution “was uninvited by any candidate and uncoordinated with any campaign” and the flyers fell under the “newspaper exemption” of the law. Moreover, the court found, FECA’s restrictions infringed on MCFL’s freedom of speech (see January 30, 1976 and April 26, 1978). An appeals court reversed much of the district court’s decision, but agreed that the named provision of FECA violated MCFL’s free speech rights. The FEC appealed to the Supreme Court. By a 5-4 vote, the Court affirms that FECA’s prohibition on corporate expenditures is unconstitutional as applied to independent expenditures made by a narrowly defined type of nonprofit corporation such as MCFL. The Court writes that few organizations will be impacted by its decision. The majority opinion is written by Justice William Brennan, a Court liberal, and joined by liberal Thurgood Marshall and conservatives Lewis Powell, Antonin Scalia, and (in part) by Sandra Day O’Connor. Court conservatives William Rehnquist and Byron White, joined by liberals Harry Blackmun and John Paul Stevens, dissent with the majority, saying that the majority ruling gives “a vague and barely adumbrated exception [to the law] certain to result in confusion and costly litigation.” [Federal Election Commission, 2011; Moneyocracy, 2/2012]

Entity Tags: Federal Election Commission, William Rehnquist, Antonin Scalia, Federal Election Campaign Act of 1972, US Supreme Court, William Brennan, Sandra Day O’Connor, Harry Blackmun, John Paul Stevens, Thurgood Marshall, Massachusetts Citizens for Life, Byron White, Lewis Powell

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

The Supreme Court, in the case of Austin v. Michigan Chamber of Commerce, rules that the Michigan Chamber of Commerce (MCC) cannot run newspaper advertisements in support of a candidate for the state legislature because the MCC is subject to the Michigan Campaign Finance Act, which prohibits corporations from using treasury money to support or oppose candidates running for state offices. The Court finds that corporations can use money only from funds specifically designated for political purposes. The MCC holds a political fund separate from its other monies, but wanted to use money from its general fund to buy political advertising, and sued for the right to do so. The case explored whether a Michigan law prohibiting such political expenditures is constitutional. The Court agrees 7-2 that it is constitutional. Justices Antonin Scalia and Anthony Kennedy dissent, arguing that the government should not require such “segregated” funds, but should allow corporations and other such entities to spend their money on political activities without such restraints. [Public Resource (.org), 1990; Casebriefs, 2012; Moneyocracy, 2/2012] The 2010 Citizens United ruling (see January 21, 2010) will overturn this decision, with Scalia and Kennedy voting in the majority, and Kennedy writing the majority opinion.

Entity Tags: Michigan Chamber of Commerce, Anthony Kennedy, Michigan Campaign Finance Act, US Supreme Court, Antonin Scalia

Timeline Tags: Civil Liberties

The US Senate ratifies the international Convention Against Torture, originally proposed by the United Nations in 1985. The treaty bans any officials from signatory nations from inflicting “torture and other cruel, inhuman, or degrading treatment or punishment” on prisoners in order to gain information. It also establishes the UN Committee against Torture (UNCAT). The ban is absolute and cannot be waived: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification of torture.” [United Nations High Commissioner for Human Rights, 12/10/1984; Savage, 2007, pp. 155] The treaty also forbids signatory nations from sending detainees to other countries if there is a reasonable expectation that they may be tortured. [United Nations High Commissioner for Human Rights, 12/10/1984; Human Rights Web, 1/25/1997]

Entity Tags: United Nations Committee against Torture, Convention Against Torture, United Nations

Timeline Tags: Civil Liberties

President Clinton issues Executive Order 12949, which marginally extends the powers of the Justice Department to conduct warrantless surveillance of designated targets, specifically suspected foreign terrorists. Perhaps the most controversial aspect of the order comes in the first section, which reads, “Pursuant to section 302(a)(1) of the [Foreign Intelligence Surveillance] Act [FISA], the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.” [US President, 2/9/1995] As with then-president Jimmy Carter’s own May 1979 order extending the Justice Department’s surveillance capabilities (see May 23, 1979), after George W. Bush’s warrantless domestic wiretapping program will be revealed in December 2005 (see December 15, 2005), many of that program’s defenders will point to Clinton’s order as “proof” that Clinton, too, exercised unconstitutionally broad powers in authorizing wiretaps and other surveillance of Americans. These defenders will point to the “physical search” clause in Clinton’s order to support their contention that, if anything, Clinton’s order was even more egregrious than anything Bush will order. This contention is false. [50 U.S.C. 1802(a); Think Progress, 12/20/2005] Under FISA, the Attorney General must certify that any such physical search does not involve the premises, information, material, or property of a United States person.” That means US citizens or anyone inside the United States. Clinton’s order does not authorize warrantless surveillance or physical searches of US citizens. [US President, 2/9/1995; Think Progress, 12/20/2005]

Entity Tags: US Department of Justice, James Earl “Jimmy” Carter, Jr., William Jefferson (“Bill”) Clinton, George W. Bush, Foreign Intelligence Surveillance Act

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

The Supreme Court rules in the case of Colorado Republican Federal Campaign Committee v. Federal Election Committee. The case originated with advertisements run by the Colorado Republican Party (CRP) in 1986 attacking the Colorado Democratic Party’s likely US Senate candidate. Neither party had yet selected its candidate for that position. The Federal Election Commission (FEC) sued the CRP’s Federal Campaign Committee, saying that its actions violated the “party expenditure provision” of the Federal Election Campaign Act (FECA—see February 7, 1972, 1974, and May 11, 1976) by spending more than the law allows. The CRP in turn claimed that FECA violated its freedom of speech, and filed a counterclaim. A Colorado court ruled in favor of the CRP, dismissing the counterclaim as moot, but an appeals court overturned the lower court’s decision. The Supreme Court rules 7-2 in favor of the FEC. The decision is unusual, lacking a clear majority, but being comprised of a “plurality” of concurrences. The majority opinion, such as it is, is authored by Justice Stephen Breyer, one of the Court liberals, and is joined by fellow liberal David Souter and conservative Sandra Day O’Connor. Conservatives Anthony Kennedy, William Rehnquist, and Antonin Scalia go farther than Breyer’s majority decision, writing that the provision violates the First Amendment when it restricts as a “contribution” a political party’s spending “in cooperation, consultation, or concert, with a candidate.” In yet another concurrence, conservative Clarence Thomas argues that the entire provision is flatly unconstitutional. Liberals John Paul Stevens and Ruth Bader Ginsburg dissent, agreeing with the appeals court. [Oyez (.org), 2011; Moneyocracy, 2/2012] In 2001, the Court will revisit the case and find its initial ruling generally sound, though the later decision will find that some spending restrictions are constitutional. In the revisiting, four of the Court’s five conservatives will dissent, with the liberals joined by O’Connor. [Oyez (.org), 2011; Moneyocracy, 2/2012]

Entity Tags: Colorado Republican Party, Colorado Democratic Party, Antonin Scalia, Anthony Kennedy, US Supreme Court, Stephen Breyer, William Rehnquist, Clarence Thomas, Federal Election Campaign Act of 1972, David Souter, Colorado Republican Party Federal Campaign Committee, Sandra Day O’Connor, Ruth Bader Ginsburg, Federal Election Commission, John Paul Stevens

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

President Clinton orders the US Air Force to participate in a NATO bombing campaign in Kosovo. The campaign lasts for 79 days, and constitutes the first time since the War Powers Resolution became law in 1974 that any president has deployed US forces into overseas combat for over 60 days without Congressional authorization. Clinton’s legal advisers argue that Clinton has all the authority he needs to continue the air war because on May 22 Congress passes an emergency spending bill to fund the Kosovo war, just days before the 60-day clock runs out. The War Powers Resolution explicitly forbids appropriations to count as authorization, so Clinton’s legal ground is shaky. In 2007, author and reporter Charlie Savage will note the unusual role reversal in Washington—Democrats, who had insisted that Republican presidents obey the War Powers Resolution, now stand by Clinton (or at least offer no overt criticism), and Republicans, who had argued that Congress had no right to challenge a president’s authority to conduct a war as he sees fit, now challenge Clinton’s authority under the selfsame War Powers Resolution they have previously criticized. The Congressional debate ends inconclusively when the air campaign ends. [Savage, 2007, pp. 65-66]

Entity Tags: William Jefferson (“Bill”) Clinton, Charlie Savage

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

The US routinely denies that its satellite surveillance program, Echelon, provides any information to corporations, noting that the law clearly prevents such transactions. But former CIA director James Woolsey confirms that the US does indeed conduct economic espionage against its European allies, though he does not specifically mention Echelon. Woolsey, a well-known neoconservative, justifies such actions by accusing European companies of using bribery to gain unfair advantages against US corporations. “We have spied on you because you bribe,” he writes in the Wall Street Journal. “[European] products are often more costly, less technically advanced or both, than [their] American competitors’. As a result [they] bribe a lot.” [BBC, 7/6/2000]

Entity Tags: Echelon, Wall Street Journal, James Woolsey

Timeline Tags: Civil Liberties

President Clinton considers building a radar facility as part of a proposed national missile defense system. Clinton’s legal advisers have told him that he could “interpret” the 1972 Anti-Ballistic Missile (ABM) Treaty (see May 26, 1972) to allow such a facility, even though the treaty clearly prohibits any moves towards a missile defense system. Clinton later authorizes the construction of a radar facility in Alaska, but leaves the bulk of the decision-making to the next administration. [Agence France-Presse, 6/21/2000; Savage, 2007, pp. 67] Clinton’s successor, George W. Bush, will withdraw from the treaty entirely (see December 13, 2001).

Entity Tags: George W. Bush, William Jefferson (“Bill”) Clinton

Timeline Tags: US International Relations

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

According to reporter and author Charlie Savage, the White House staff quickly coalesces into two camps: “Bush People[,] mostly personal friends of the new president who shared his inexperience in Washington,” which includes President Bush’s top legal counsels, Alberto Gonzales and Harriet Miers, both corporate lawyers in Texas before joining Bush in Washington. The second group is “Cheney People—allies from [Vice-President Dick] Cheney’s earlier stints in the federal government (see May 25, 1975, November 18, 1980, 1981-1992, 1989, and June 1996) who were deeply versed in Washington-level issues, a familiarity that would allow their views to dominate internal meetings. These included [Defense Secretary Donald] Rumsfeld and other cabinet secretaries, key deputies throughout the administration, and David Addington, Cheney’s longtime aide who would become a chief architect of the administration’s legal strategy in the war on terrorism” (see July 1, 1992 and (After 10:00 a.m.) September 11, 2001). Savage will observe, “Given the stark contrast in experience between Cheney and Bush, it was immediately clear to observers of all political stripes that Cheney would possess far more power than had any prior vice president.”
'Unprecedented' Influence - Cheney will certainly have “unprecedented” influence, according to neoconservative publisher William Kristol, who himself had served as former Vice President Dan Quayle’s chief of staff. “The question to ask about Cheney,” Kristol will write, is “will he be happy to be a very trusted executor of Bush’s policies—a confidant and counselor who suggests personnel and perhaps works on legislative strategy, but who really doesn’t try to change Bush’s mind about anything? Or will he actually, substantively try to shape administration policy in a few areas, in a way that it wouldn’t otherwise be going?”
Expanding the Power of the Presidency - Cheney will quickly answer that question, Savage will write, by attempting to “expand the power of the presidency.” Savage will continue: “He wanted to reduce the authority of Congress and the courts and to expand the ability of the commander in chief and his top advisers to govern with maximum flexibility and minimum oversight. He hoped to enlarge a zone of secrecy around the executive branch, to reduce the power of Congress to restrict presidential action, to undermine limits imposed by international treaties, to nominate judges who favored a stronger presidency, and to impose greater White House control over the permanent workings of government. And Cheney’s vision of expanded executive power was not limited to his and Bush’s own tenure in office. Rather, Cheney wanted to permanently alter the constitutional balance of American government, establishing powers that future presidents would be able to wield as well.” [Savage, 2007, pp. 7-9] Larry Wilkerson, the chief of staff for Secretary of State Colin Powell, will say after leaving the administration: “We used to say about both [Defense Secretary Donald Rumsfeld’s office] and the vice president’s office that they were going to win nine out of 10 battles, because they were ruthless, because they have a strategy, because they never, never deviate from that strategy. They make a decision, and they make it in secret, and they make it in a different way than the rest of the bureaucracy makes it, and then suddenly, foist it on the government—and the rest of the government is all confused.” [Unger, 2007, pp. 299]
Signing Statements to Reshape Legislation, Expand Presidential Power - To that end, Cheney ensures that all legislation is routed through his office for review before it reaches Bush’s desk. Addington goes through every bill for any new provisions that conceivably might infringe on the president’s power as Addington interprets it, and drafts signing statements for Bush to sign. In 2006, White House counsel Bradford Berenson will reflect: “Signing statements unite two of Addington’s passions. One is executive power. And the other is the inner alleyways of bureaucratic combat. It’s a way to advance executive power through those inner alleyways.… So he’s a vigorous advocate of signing statements and including important objections in signing statements. Most lawyers in the White House regard the bill review process as a tedious but necessary bureaucratic aspect of the job. Addington regarded it with relish. He would dive into a 200-page bill like it was a four-course meal.” It will not be long before White House and Justice Department lawyers begin vetting legislation themselves, with Addington’s views in mind. “You didn’t want to miss something,” says a then-lawyer in the White House. [Savage, 2007, pp. 236]

Entity Tags: David S. Addington, Bradford Berenson, Alberto R. Gonzales, Charlie Savage, William Kristol, Richard (“Dick”) Cheney, Donald Rumsfeld, Bush administration (43), Harriet E. Miers, George W. Bush, Lawrence Wilkerson

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

Nicky Hager.Nicky Hager. [Source: Rotorua District Council]New Zealand journalist Nicky Hager appears before a European Parliament investigative committee to testify about the US’s satellite surveillance program, Echelon (see July 11, 2001). Hager has discovered information about Echelon’s use by the New Zealand equivalent of the NSA, the Government Communication Security Bureau (GCSB). In researching Echelon’s use by the USA, Canada, Britain, Australia, and New Zealand, Hager learned of the extent of the system’s “capability to monitor the whole of governments, regional and international organizations, non-government organizations, companies and individuals throughout Europe.” Although Hager warns the committee not to focus exclusively on Echelon’s use for corporate benefits, he gives several examples of such uses in the South Pacific, including monitoring “deals to do with Japan… collecting intelligence on meat sales, which is very important for New Zealand… intelligence to do with oil prices… [and] a particularly large Japanese development project in the South Pacific where there was potential for New Zealand companies to win contracts. In other words, there were both macro-level and micro-level economic intelligence being collected.” Corporate executives routinely received such information, Hager testifies, and tells about “the fantastic amount of intelligence that was arriving, for example, monitoring international trade meetings.… From my sources, they said that whenever there was a GATT meeting or another major international meeting, there were hundreds of reports of the monitoring of the different delegations which were arriving in New Zealand and being shared between [British]/USA partners, and I have absolutely no doubt about that, because I have talked to people who saw it coming from the NSA.” [European Parliament, 4/24/2001]

Entity Tags: Government Communication Security Bureau, Echelon, National Security Agency, Nicky Hager, European Parliament

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

The General Accounting Office (GAO), the nonpartisan investigative arm of Congress, sends David Addington, the chief counsel to Vice President Cheney, a letter declaring that it intends to review the composition and activities of Cheney’s energy task force (see January 29, 2001). Addington is the one who issued the flat refusal to allow members of Congress to see any of the minutes or documents generated by the task force (see April 19 - May 4, 2001); in response, the members of Congress who requested the information asked GAO chief and comptroller general David Walker for help in investigating the task force. Walker is quite bipartisan, having worked for the Reagan and Bush-Quayle administrations before being appointed to the chairmanship of the GAO by President Clinton. [Savage, 2007, pp. 88] Addington will reply to Walker, denying that the GAO has any authority to investigate the task force (see May 16 - 17, 2001). In 2007, author Charlie Savage will call the Cheney-Addington battle with the GAO an early instance of the Bush administration’s fight to claim ever-widening presidential powers at the expense of Congress (see January 21, 2001).

Entity Tags: David Walker, Bush administration (43), David S. Addington, General Accounting Office, Richard (“Dick”) Cheney, Charlie Savage, National Energy Policy Development Group

Timeline Tags: US Environmental Record, 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

An Echelon station in Menwith Hill, Britain.An Echelon station in Menwith Hill, Britain. [Source: BBC]By the 1980s, a high-tech global electronic surveillance network shared between the US, Britain, Canada, Australia, and New Zealand is gathering intelligence all over the world. The BBC describes Echelon’s power as “astounding,” and elaborates: “Every international telephone call, fax, e-mail, or radio transmission can be listened to by powerful computers capable of voice recognition. They home in on a long list of key words, or patterns of messages. They are looking for evidence of international crime, like terrorism.” [BBC, 11/3/1999] One major focus for Echelon before 9/11 is al-Qaeda. For instance, one account mentions Echelon intercepting al-Qaeda communications in Southeast Asia in 1996 (see Before September 11, 2001). A staff member of the National Security Council who regularly attends briefings on bin Laden states, “We are probably tapped into every hotel room in Pakistan. We can listen in to just about every phone call in Afghanistan.” However, he and other critics will claim one reason why US intelligence failed to stop terrorism before 9/11 was because there was too much of a focus on electronic intelligence gathering and not enough focus on human interpretation of that vast data collection. [Toronto Star, 2/2/2002]

Entity Tags: United Kingdom, United States, Osama bin Laden, Echelon, National Security Council, Canada, Australia, Al-Qaeda, New Zealand

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

All the alleged 9/11 hijackers reportedly check in at the airports from where they board Flights 11, 175, 77, and 93. [9/11 Commission, 7/24/2004, pp. 1-4; 9/11 Commission, 8/26/2004, pp. 27, 89, 93] Since 1998, the FAA has required air carriers to implement a program called the Computer Assisted Passenger Prescreening System (CAPPS). This identifies those passengers who might be a security risk, based upon suspicious behavior such as buying one-way tickets or paying with cash. CAPPS also randomly assigns some passengers to receive additional security scrutiny. If a particular passenger has been designated as a “selectee,” this information is transmitted to the airport’s check-in counter, where a code is printed on their boarding pass. At the airport’s security checkpoints, selectees are subjected to additional security measures. [US News and World Report, 4/1/2002; 9/11 Commission, 1/27/2004; US Congress, 3/17/2004; 9/11 Commission, 8/26/2004, pp. 2, 85] Their baggage is to be screened for explosives or held off the plane until they have boarded. Supposedly, the thinking behind this is that someone smuggling a bomb onto a plane won’t get onto that same flight. According to the 9/11 Commission, nine of the 19 hijackers are flagged by the CAPPS system before boarding Flights 11, 175, 77, and 93. [Washington Post, 1/28/2004; 9/11 Commission, 7/24/2004, pp. 84; United States of America v. Zacarias Moussaoui, a/k/a Shaqil, a/k/a Abu Khalid al Sahrawi, Defendant, 3/6/2006] In addition, Mohamed Atta was selected when he checked in at the airport in Portland, for his earlier connecting flight to Boston (see 5:33 a.m.-5:40 a.m. September 11, 2001). All of the hijackers subsequently pass through security checkpoints before boarding their flights. [9/11 Commission, 7/24/2004, pp. 1-4]

Entity Tags: Federal Aviation Administration, Computer Assisted Passenger Prescreening System

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

Dick Cheney and senior staff witness the collapse of the WTC South Tower. Directly behind Cheney are Norman Mineta and I. Lewis ‘Scooter’ Libby. National Security Advisor Condoleezza Rice stands behind Cheney’s left shoulder.Dick Cheney and senior staff witness the collapse of the WTC South Tower. Directly behind Cheney are Norman Mineta and I. Lewis ‘Scooter’ Libby. National Security Advisor Condoleezza Rice stands behind Cheney’s left shoulder. [Source: David Bohrer / White House]In the conference room of the Presidential Emergency Operations Center (PEOC), Vice President Cheney, National Security Adviser Condoleezza Rice, and their aides watch the South Tower collapsing on television. [Newsweek, 12/31/2001] Cheney will later say that the WTC coming down “was a shock to everybody—it certainly was to me.” [PBS, 9/9/2002] However, if he is indeed shocked, this is not how Cheney appears to others in the room. One witness who is present will later recall that, as the South Tower collapses, there is “a groan in the room that I won’t forget, ever. It seemed like one groan from everyone.” However, Cheney makes no sound, but closes his eyes for a long, slow blink. The witness says, “I remember turning my head and looking at the vice president, and his expression never changed.” [Washington Post, 6/24/2007] According to Mary Matalin, a counselor to the vice president, Cheney says nothing in response to the collapse, but “he emoted in a way that he emotes, which was to stop.” [CNN, 9/11/2002; CNN, 9/11/2002] When he is told that a casualty estimate ranges well into the thousands, the vice president reportedly just nods grimly. [Newsweek, 12/31/2001] According to the Washington Post, three people who are present say they see no sign now or later “of the profound psychological transformation that has often been imputed to Cheney.” What they see is “extraordinary self-containment and a rapid shift of focus to the machinery of power. While others assessed casualties and the work of ‘first responders,’ Cheney began planning for a conflict that would call upon lawyers as often as soldiers and spies.” He will promptly begin assembling the legal team that subsequently assists him in expanding presidential power (see (After 10:00 a.m.) September 11, 2001). [Washington Post, 6/24/2007]

Entity Tags: Mary Matalin, Richard (“Dick”) Cheney, Condoleezza Rice, World Trade Center

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

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

The US Congress adopts a joint resolution, the Authorization for Use of Military Force (AUMF), that determines that “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 by such nations, organizations or persons.” Congress also states that the “grave acts of violence” committed on the US “continue to pose an unusual and extraordinary threat to [its] national security and foreign policy.” [US Congress, 9/14/2001] President Bush signs the resolution into law on September 18. [White House, 9/18/2001] The passage of the AUMF served another purpose: to extend presidential power. While the Defense Department and the Joint Chiefs of Staff intended the AUMF to define the conflict in narrow terms, and authorize the US to move militarily against al-Qaeda and its confederates, and the Taliban, Vice President Dick Cheney and his chief of staff, David Addington, had a larger goal. Attorney Scott Horton, who has written two major studies on interrogation of terrorism suspects for the New York City Bar Association, says in 2005 that Cheney and Addington “really wanted [the AUMF defined more broadly], because it provided the trigger for this radical redefinition of presidential power.” Addington helped draft a Justice Department opinion in late 2001, written by lawyer John Yoo (see Late September 2001), that asserted Congress cannot “place any limits on the president’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response.” [US News and World Report, 5/21/2006]

Entity Tags: US Department of Defense, Taliban, Scott Horton, Joint Chiefs of Staff, Richard (“Dick”) Cheney, David S. Addington, George W. Bush, John C. Yoo, Al-Qaeda, Authorization to Use Military Force (AUMF)

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

A self-styled White House “war council” begins meeting shortly after the 9/11 attacks, to discuss the administration’s response to the attacks and the methods it will use (see (After 10:00 a.m.) September 11, 2001). The ad hoc group is composed of White House counsel Alberto Gonzales, Justice Department lawyer John Yoo, Pentagon chief counsel William J. Haynes, and the chief aide to Vice President Dick Cheney, David Addington. According to Jack Goldsmith, who will become head of the Justice Department’s Office of Legal Counsel (OLC) in 2003 (see October 6, 2003), the four believe that the administration’s biggest obstacle to responding properly to the 9/11 attacks is the body of domestic and international law that arose in the 1970s to constrain the president’s powers after the criminal excesses of Richard Nixon’s White House. Chief among these restraints is the Foreign Intelligence Surveillance Act (FISA) of 1978 (see 1978). Though Addington tends to dominate the meetings with his imposing physical presence and aggressive personality, Yoo is particularly useful to the group; the head of the OLC, Jay Bybee (whom Goldsmith will replace) has little experience with national security issues, and delegates much of the responsibility for that subject to Yoo, even giving him the authority to draft opinions that are binding on the entire executive branch. Yoo agrees wholeheartedly with Addington, Gonzales, and Cheney about the need for vastly broadened presidential powers. According to Goldsmith, Yoo is seen as a “godsend” for the White House because he is eager to draft legal opinions that would protect Bush and his senior officials from any possible war crimes charges. However, Yoo’s direct access to Gonzales angers Attorney General John Ashcroft, who feels that the “war council” is usurping legal and policy decision-making powers that are legally his own. [New York Times Magazine, 9/9/2007] In 2009, Goldsmith will say, “[I]it was almost as if they [Cheney and Addington] were interested in expanding executive power for its own sake.” [Vanity Fair, 2/2009]

Entity Tags: Richard (“Dick”) Cheney, William J. Haynes, Richard M. Nixon, Office of Legal Counsel (DOJ), Jay S. Bybee, Jack Goldsmith, John C. Yoo, Bush administration (43), Foreign Intelligence Surveillance Act, Alberto R. Gonzales, David S. Addington

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

Appeals Court Judge Sonia Sotomayor delivers a lecture at the University of California at Berkeley School of Law. Sotomayor, whose parents are Puerto Rican, speaks on the subject of Hispanics in the judiciary and her own experience as a Latina (Hispanic woman) jurist. After noting the tremendous cultural and ethnic diversity among Hispanics, and citing the ascension of increasing numbers of Hispanics and women to the judiciary, Sotomayor addresses the issue of judges acting without regard for their ethnic heritage or gender. “[J]udges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law,” she says, and notes that while she tries to aspire to that goal: “I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address. I accept the thesis… that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought.… I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that—it’s an aspiration because it denies the fact that we are by our experiences making different choices than others.” She adds: “Justice [Sandra Day] O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases.… I am also not so sure that I agree with the statement. First… there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life. Let us not forget that wise men like Oliver Wendell Holmes and Justice [Benjamin] Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I… believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable.… However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench.” [National Council of La Raza Law Journal, 10/2001; ABC News, 10/26/2001 pdf file; New York Times, 5/14/2009] After Sotomayor is nominated to the Supreme Court (see May 26, 2009), many critics will use this speech to accuse her of racism (see May 26, 2009, May 26, 2009, May 26, 2009, May 27, 2009, May 28, 2009, and June 3, 2009).

Entity Tags: University of California at Berkeley School of Law, Sonia Sotomayor, US Supreme Court

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)

At a private lunch meeting, Vice President Cheney presents President Bush with a four-page memo, written in strict secrecy by lawyer John Yoo of the Justice Department’s Office of Legal Counsel (see November 6-10, 2001), and a draft executive order that establishes military commissions for the trial of suspected terrorists (see November 10, 2001). The legal brief mandates that foreign terrorism suspects held in US custody have no access to any courts whatsoever, civil, criminal, military, domestic, or foreign. They can be detained indefinitely without charges. If they are to be tried, they can be tried in closed “military commissions.” [White House, 11/13/2001; Savage, 2007, pp. 138; Washington Post, 6/24/2007]
Military Commissions Suitable to 'Unitary Executive' Agenda - According to author Craig Unger, military commissions are a key element of Cheney’s drive towards a “unitary executive,” the accretion of governmental powers to the presidency at the expense of the legislative and judicial branches. Federal trials for terror suspects would put them under all the legal procedures provided under the US judicial system, an unacceptable alternative. Military courts-martial would give them the rights granted by the Geneva Conventions. Military commissions, however, are essentially tribunals operating outside of both civilian and military law. Defendants have few rights. Secret evidence can be admitted without being disclosed to the defendants. Hearsay and coerced testimony are admissible. Prisoners can be held indefinitely. [Unger, 2007, pp. 221-222]
No Bureaucratic Footprints - After Bush peruses the memo and the draft order, Cheney takes them back with him to his office. After leaving Bush, Cheney takes extraordinary steps to ensure that no evidence of his involvement remains. The order passes from Cheney to his chief counsel David Addington, and then to associate White House counsel Bradford Berenson. At Berenson, the provenance of the order breaks, as no one tells him of its origin. Berenson rushes the order to deputy staff secretary Stuart Bowen with instructions to prepare it for signature immediately, without advance distribution to Bush’s top advisers. Bowen objects, saying that he had handled thousands of presidential documents without ever sidestepping the strict procedures governing coordination and review. Bowen relents only after being subjected to what he will later recall as “rapid, urgent persuasion” that Bush is standing by to sign and that the order is too sensitive to delay. Berenson will later say he understood that “someone had briefed” Bush “and gone over it” already. “I don’t know who that was.” When it is returned to Bush’s office later in the day, Bush signs it immediately (see November 13, 2001). Virtually no one else has seen the text of the memo. The Cheney/Yoo proposal has become a military order from the commander in chief.
Dodging Proper Channels - The government has had an interagency working group, headed by Pierre Prosper, the ambassador at large for war crimes, working on the same question (see Shortly Before September 23, 2001). But Cheney and Addington have refused to have any contact with Prosper’s group; one of Cheney’s team later says, “The interagency [group] was just constipated.” Cheney leapfrogged over Prosper’s group with their own proposal, performing an adroit bureaucratic move that puts their proposal in place without any oversight whatsoever, and cutting Prosper’s group entirely out of the process. When the news of the order is broadcast on CNN, Secretary of State Colin Powell demands, “What the hell just happened?” An angry Condoleezza Rice, the president’s national security adviser, sends an aide to find out. Virtually no one, even witnesses to the presidential signing, know that Cheney promulgated the order. In 2007, Washington Post reporters Barton Gellman and Jo Becker will call the episode “a defining moment in Cheney’s tenure” as vice president. Cheney has little Constitutional power, but his deft behind-the-scenes manuevering and skilled bureaucratic gamesmanship enable him to pull off coups like this one, often leaving even the highest White House officials none the wiser. “[H]e has found a ready patron in George W. Bush for edge-of-the-envelope views on executive supremacy that previous presidents did not assert,” the reporters write. [White House, 11/13/2001; Unger, 2007, pp. 221-222; Washington Post, 6/24/2007]
Quiet Contravening of US Law - Six years later, Unger will observe that few inside or outside Washington realize that Cheney has, within a matter of days, contravened and discarded two centuries of American law. He has given the president, in the words of former Justice Department lawyer Bruce Fein, “the functions of judge, jury, and prosecutor in the trial of war crimes [and] the authority to detain American citizens as enemy combatants indefinitely… a frightening power indistinguishable from King Louis XIV’s execrated lettres de cachet that occasioned the storming of the Bastille.” [Unger, 2007, pp. 223-224]

Entity Tags: Stuart W. Bowen, Office of Legal Counsel (DOJ), Richard (“Dick”) Cheney, US Department of Justice, John C. Yoo, David S. Addington, George W. Bush, Barton Gellman, Bradford Berenson, Jo Becker, Bruce Fein, Condoleezza Rice, Craig Unger, Colin Powell, Pierre-Richard Prosper

Timeline Tags: Civil Liberties

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

Salim Hamdan is captured in Afghanistan. [Guantanamo Military Commissions, 11/20/2007 pdf file] Hamdan is an Arab who has lived in Afghanistan for some time and has some knowledge about al-Qaeda and its operations there. He will later become well known after he is transferred to Guantanamo and engages in a series of legal battles to gain his freedom (see November 8, 2004 and June 30, 2006). [USA Today, 7/24/2008; Reuters, 7/24/2008] At some point, he is handed over to the FBI. However, agents for the bureau do not read him his Miranda rights. “Our policy at the time was not to read Miranda rights,” FBI special agent Robert Fuller will say in testimony at a US military commission hearing for Hamdan. Reuters will later write, “Similar warnings must be given to suspects in US military custody, and suspects overseas who may face US charges commonly receive warnings.” FBI special agent Stewart Kelley will say, “If they are a suspect, and they are detained, a Miranda is usually given.” [Reuters, 7/24/2008]

Entity Tags: Federal Bureau of Investigation, Salim Ahmed Hamdan, Stewart Kelley, Robert Fuller

Timeline Tags: Torture of US Captives

Salim Hamdan, a detainee with some knowledge about al-Qaeda who was captured in late November, takes FBI agents on two tours of facilities associated with al-Qaeda in Afghanistan. Hamdan and the agents twice drive around Kandahar in the months after his capture and he points out compounds owned by Osama bin Laden, including Tarnak Farms, and guest houses where al-Qaeda members could safely stay, which the agents take pictures of. Robert Fuller, one of the agents who accompanies Hamdan, will later say: “The first compound, when we arrived to it, it was destroyed. No roof was left.” The second compound is intact, and “in great shape,” according to Fuller. Hamdan also tells the FBI of his time at a training camp, but says he only stayed for a month and then returned to a guest house to be with his family. In addition, he identifies several high-ranking al-Qaeda officials and describes visits by bin Laden and other al-Qaeda figures to the camp. They gave speeches and “offered words of encouragement,” according to FBI agent Craig Donnachie. [USA Today, 7/24/2008; Reuters, 7/24/2008] Despite this co-operation, Hamdan will be transferred to Guantanamo, held there for years, and prosecuted in a military commission (see June 30, 2006).

Entity Tags: Robert Fuller, Craig Donnachie, Salim Ahmed Hamdan, Federal Bureau of Investigation

Timeline Tags: Torture of US Captives

US nuclear missiles such as this one will no longer be restricted under the ABM treaty.US nuclear missiles such as this one will no longer be restricted under the ABM treaty. [Source: Associated Press / CNN]President Bush announces that the US is unilaterally withdrawing from the 1972 Anti-Ballistic Missile (ABM) Treaty (see May 26, 1972). The treaty, negotiated with the former Soviet Union in 1972, sets strict limitations on missile and missile defense developments by both Russia and the US. After the six-month withdrawal period is concluded in mid-2002, the US will begin developing an anti-missile defense system, an outgrowth and extension of the old “Star Wars” system (see March 23, 1983). Bush tells reporters: “Today I am giving formal notice to Russia that the United States of America is withdrawing from this almost 30-year-old treaty.… I have concluded the ABM treaty hinders our government’s ability to develop ways to protect our people from future terrorist or rogue state missile attacks.” Bush explains: “The 1972 ABM treaty was signed by the United States and the Soviet Union at a much different time, in a vastly different world. One of the signatories, the Soviet Union, no longer exists and neither does the hostility that once led both our countries to keep thousands of nuclear weapons on hair-trigger alert, pointed at each other.… Today, as the events of September 11 made all too clear, the greatest threats to both our countries come not from each other, or from other big powers in the world, but from terrorists who strike without warning or rogue states who seek weapons of mass destruction.” Defense Secretary Donald Rumsfeld calls the treaty “outdated.” [White House, 12/13/2001; CNN, 12/14/2001]
Follows Failure to Persuade Russia to Drop Treaty - The decision follows months of talks in which Bush officials attempted without success to persuade Russia to set the treaty aside and negotiate a new one more favorable to US interests. Bush says that he and Russian President Vladimir Putin “have also agreed that my decision to withdraw from the treaty will not in any way undermine our new relationship or Russian security.” Putin calls Bush’s decision a “mistake,” and says the two nations should move quickly to create a “new framework of our strategic relationship.” Putin says on Russian television that the US decision “presents no threat to the security of the Russian Federation.” He also says that the US and Russia should decrease their present stockpiles of nuclear weapons. He wants what he calls “radical, non-reversible and verifiable reductions in offensive weapons”; in turn, the Bush administration is against any sort of legally binding agreements. Putin says, “Today, when the world has been faced with new threats, one cannot allow a legal vacuum in the sphere of strategic stability.” [CNN, 12/14/2001; CNN, 12/14/2001]
'Abdication of Responsibility' - Senate Democrats (see December 13-14, 2001) and non-proliferation experts (see December 13, 2001) strongly question the decision to withdraw. Singapore’s New Straits Times writes: “History will one day judge the US decision to withdraw from the Anti-Ballistic Missile Treaty in the same way it views the US failure in 1919 to join the League of Nations—as an abdication of responsibility, a betrayal of humankind’s best hopes, an act of folly. By announcing the decision now, in the midst of a war on terrorism that commands worldwide support, the Bush administration has also displayed a cynicism that will adversely affect the mood of cooperation that has characterized international relations since September 11.” [Carter, 2004, pp. 272-273] Sweden’s foreign ministry warns of possibly “serious consequences for the future of international disarmament.” [BBC, 12/13/2001]
Seizure of Presidential Power - Regardless of the wisdom of withdrawing from the treaty, Bush’s decision has another effect that is subjected to far less public scrutiny: by unilaterally withdrawing the US from the treaty on his own authority, Bush, in the words of author Charlie Savage, “seized for the presidency the power to pull the United States out of any treaty without obtaining the consent of Congress.” Savage, writing in 2007, will note that the Constitution does not provide a clear method of withdrawing the US from an international treaty. However, he will write, judging from the fact that the US Senate must vote to ratify a treaty before it becomes binding, it can be inferred that the Founders intended for the legislature, not the executive branch, to have the power to pull out of a treaty. In Volume 70 of the Federalist Papers, Alexander Hamilton wrote that treaties are far too important to entrust to the decision of one person who will be in office for as few as four years. Hamilton wrote, “The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a president of the United States.” [Savage, 2007, pp. 140]

Entity Tags: Vladimir Putin, Charlie Savage, George W. Bush, Singapore Straits Times, Bush administration (43)

Timeline Tags: US International Relations

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

Defense Secretary Donald Rumsfeld makes a public announcement that he is planning to move Taliban and al-Qaeda suspects to the Guantanamo Bay Naval Station. The number of people in US custody and destined for Guantanamo is allegedly small. According to the Chairman of the Joint Chiefs of Staff, Air Force Gen. Richard B. Myers, they number eight individuals aboard the USS Peleliu and 37 at a US base near Kandahar airport. [Dawn (Karachi), 12/28/2001] Troops, earlier stationed at nearby Camp Rhino, where John Walker Lindh was detained, are being transferred to Guantanamo. [GlobalSecurity (.org), 1/15/2005] The reason for choosing Guantanamo for detaining suspected al-Qaeda and Taliban members is unclear. Rumsfeld says: “I would characterize Guantanamo Bay, Cuba, as the least worst place we could have selected. Its disadvantages seem to be modest relative to the alternatives.” [Dawn (Karachi), 12/28/2001] Rumsfeld does not inform reporters of the legal opinion about to be released by the Office of Legal Counsel (OLC) that he feels makes Guantanamo uniquely qualified to serve as a prisoner for terror suspects (see December 28, 2001). According to the OLC opinion, Guantanamo is outside the US itself, so US courts have no jurisdiction to oversee conditions or activities there. It is also not on soil controlled by any other court system. And, unlike other facilities considered for housing terror suspects (see January 11, 2002), Guantanamo is not on the soil of a friendly government with which the US has lease and status of force agreements, but rather on the soil of a hostile Communist government whose predecessor had signed a perpetual lease with the US. The base, therefore, is, according to the OLC, under the sole jurisdiction of the US military and its commander in chief, and not subject to any judicial or legislative review. In 2007, author and reporter Charlie Savage will write, “Guantanamo was chosen because it was the best place to set up a law-free zone.” [Savage, 2007, pp. 145]

Entity Tags: Al-Qaeda, US Department of Defense, Charlie Savage, Richard B. Myers, Taliban, Donald Rumsfeld

Timeline Tags: Torture of US Captives, War in Afghanistan

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

Two weeks after Justice Department lawyers John Yoo and Robert Delahunty write a memo saying that the US should not be bound by international laws covering warfare and torture (see January 9, 2002), White House counsel Alberto Gonzales concurs (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] But others inside and outside the administration strongly disagree. Many will later point to Yoo and Delahunty’s memo as providing the “spark” for the torture and prisoner abuses 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). Human Rights Watch director Kenneth Roth will call the memo a “maliciously ideological or deceptive” document that ignores US obligations under multiple international agreements. “You can’t pick or choose what laws you’re going to follow,” Roth will observe. “These political lawyers set the nation on a course that permitted the abusive interrogation techniques” disclosed in later months. Scott Horton, president of the International League for Human Rights, agrees. When you read the memo, Horton says, “the first thing that comes to mind is that this is not a lofty statement of policy on behalf of the United States. You get the impression very quickly that it is some very clever criminal defense lawyers trying to figure out how to weave and bob around the law and avoid its applications.” Two days later, the State Department, whose lawyers are “horrified” by the Yoo memo, vehemently disagrees with its position (see January 11, 2002). Three weeks later, State again criticizes the memo (see February 2, 2002). State senior counsel William Howard Taft IV points out that the US depends itself on the even observations of international law, and that following Yoo’s recommendations may undermine attempts to prosecute detainees under that same body of law. Secretary of State Colin Powell “hit[s] the roof” when he reads Gonzales’s response to the Yoo memo, warning that adopting such a legal practice “will reverse over a century of US policy and practice” and have “a high cost in terms of negative international reaction” (see January 26, 2002). The Bush administration will give in a bit to Powell’s position, announcing that it will allow Geneva to apply to the Afghan war—but not to Taliban and al-Qaeda prisoners. State Department lawyers call it a “hollow” victory for Powell, leaving the administration’s position essentially unchanged. [Newsweek, 5/21/2004; Newsweek, 5/24/2004]

Entity Tags: Robert J. Delahunty, Human Rights Watch, Colin Powell, Alberto R. Gonzales, International League for Human Rights, John C. Yoo, Kenneth Roth, William Howard Taft IV, Scott Horton, US Department of State

Timeline Tags: Torture of US Captives, Civil Liberties

Vice President Cheney gives one of the first public indications that he and his office have a keen and active interest in expanding the power of the presidency (see January 21, 2001). Interviewed by ABC’s Cokie Roberts, Cheney openly discusses his interest in reversing the restraints placed on the presidency after Watergate and the Vietnam War. He calls the restraints “unwise compromises” that serve to “weaken the presidency and the vice presidency.” His job, he explains, is to reverse the “erosion of [presidential] powers and the ability of the president of the United States to do his job.” Cheney says he has laid out his case to President Bush, who agrees with his rationale and his agenda. “One of the things that I feel an obligation on—and I know the president does, too, because we talked about it—is to pass on our offices in better shape than we found them to our successors.” [Savage, 2007, pp. 75-76]

Entity Tags: George W. Bush, Richard (“Dick”) Cheney, Cokie Roberts

Timeline Tags: Civil Liberties

James Ho, an attorney-adviser to the Office of Legal Counsel (OLC), sends a classified memo to the OLC’s John Yoo. The memo, entitled “RE: Possible interpretation of Common Article 3 of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War,” will remain secret, but according to the American Civil Liberties Union (ACLU), it is likely a legal interpretation of Common Article 3 of the Geneva Convention, the section addressing the treatment of prisoners of war. The ACLU believes the memo interprets the scope of prohibited conduct under Common Artlcle 3, and gives specificity to the phrases “outrages upon personal dignity” and “humiliating and degrading treatment.” It also believes that the memo determines that Geneva does not apply to conflicts with terrorist organizations. Yoo will cite this memo in his 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; ProPublica, 4/16/2009]

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

Timeline Tags: Civil Liberties

In a memo concurrent with the presidential declaration that the Geneva Convention does not apply to Taliban or al-Qaeda fighters (see February 7, 2002), Jay Bybee, the head of the Justice Department’s Office of Legal Counsel, sends a memo to White House counsel Alberto Gonzales. Bybee concludes that President Bush has the legal authority to conclude that Taliban fighters have no rights to prisoner of war status as defined under the Geneva Conventions, because the Taliban lack an organized command structure, do not wear uniforms, and do not consider themselves bound by Geneva. It also concludes that there is no need for the US to convene Article 5 tribunals under Geneva to determine the status of the Taliban, as Bush’s presidential determination of their status eliminates any doubt under domestic law. [US Department of Justice, 2/7/2002 pdf file; American Civil Liberties Union [PDF], 1/28/2009 pdf file]

Entity Tags: George W. Bush, Alberto R. Gonzales, Geneva Conventions, US Department of Justice, Taliban, Office of Legal Counsel (DOJ), Jay S. Bybee

Timeline Tags: Civil Liberties


This partial image from a Total Information Awareness slide presentation shows types of data that will be collected. Note that
even “gait” - the way one walks, will be analyzed.
This partial image from a Total Information Awareness slide presentation shows types of data that will be collected. Note that even “gait” - the way one walks, will be analyzed. [Source: DARPA]The US military internally announces the creation of a new global data collection system called Total Information Awareness. The existence of this program is not reported until August 2002 [Wired News, 8/7/2002] , and not widely known until November 2002 (see November 9, 2002). Interestingly, the early accounts of this program suggest its budget is a “significant amount” of $96 million [Federal Computer Week, 10/17/2002] , and not the $10 million later reported. [Guardian, 11/23/2002] It is also reported that “parts” of the program “are already operational” whereas later it is said to be only in the conceptual stages of development. [Federal Computer Week, 10/17/2002]

Entity Tags: Total Information Awareness, US Department of Defense

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

After years of battling Republican filibuster efforts and other Congressional impediments, the Bipartisan Campaign Reform Act of 2002 is signed into law. Dubbed the “McCain-Feingold Act” after its two Senate sponsors, John McCain (R-AZ) and Russ Feingold (D-WI), when the law takes effect after the 2002 midterm elections, national political parties will no longer be allowed to raise so-called “soft money” (unregulated contributions) from wealthy donors. The legislation also raises “hard money” (federal money) limits, and tries, with limited success, to eliminate so-called “issue advertising,” where organizations not directly affiliated with a candidate run “issues ads” that promote or attack specific candidates. The act defines political advertising as “electioneering communication,” and prohibits advertising paid for by corporations or by an “unincorporated entity” funded by corporations or labor unions (with exceptions—see June 25, 2007). To a lesser extent, the BCRA also applies to state elections. In large part, it supplants the Federal Election Campaign Act (FECA—see February 7, 1972, 1974, May 11, 1976, and January 8, 1980). [Federal Election Commission, 2002; Center for Responsive Politics, 2002 pdf file; Connecticut Network, 2006 pdf file]
Bush: Bill 'Far from Perfect' - Calling the bill “far from perfect,” President Bush signs it into law, taking credit for the bill’s restrictions on “soft money,” which the White House and Congressional Republicans had long opposed. Bush says: “This legislation is the culmination of more than six years of debate among a vast array of legislators, citizens, and groups. Accordingly, it does not represent the full ideals of any one point of view. But it does represent progress in this often-contentious area of public policy debate. Taken as a whole, this bill improves the current system of financing for federal campaigns, and therefore I have signed it into law.” [Center for Responsive Politics, 2002 pdf file; White House, 3/27/2002]
'Soft Money' Ban - The ban on so-called “soft money,” or “nonfederal contributions,” affects contributions given to political parties for purposes other than supporting specific candidates for federal office (“hard money”). In theory, soft money contributions can be used for purposes such as party building, voter outreach, and other activities. Corporations and labor unions are prohibited from giving money directly to candidates for federal office, but they can give soft money to parties. Via legal loopholes and other, sometimes questionable, methodologies, soft money contributions can be used for television ads in support of (or opposition to) a candidate, making the two kinds of monies almost indistinguishable. The BCRA bans soft money contributions to political parties. National parties are prohibited from soliciting, receiving, directing, transferring, and spending soft money. State and local parties can no longer spend soft money for any advertisements or other voter communications that identify a candidate for federal office and either promote or attack that candidate. Federal officeholders and candidates cannot solicit, receive, direct, transfer, or spend soft money in connection with any election. State officeholders and candidates cannot spend soft money on any sort of communication that identifies a candidate for federal office and either promotes or attacks that candidate. [Legal Information Institute, 12/2003; ThisNation, 2012]
Defining 'Issue Advertisements' or 'Electioneering Communications' - In a subject related to the soft money section, the BCRA addresses so-called “issue advertisements” sponsored by outside, third-party organizations and individuals—in other words, ads by people or organizations who are not candidates or campaign organizations. The BCRA defines an “issue ad,” or as the legislation calls it, “electioneering communication,” as one that is disseminated by cable, broadcast, or satellite; refers to a candidate for federal office; is disseminated in a particular time period before an election; and is targeted towards a relevant electorate with the exception of presidential or vice-presidential ads. The legislation anticipates that this definition might be overturned by a court, and provides the following “backup” definition: any broadcast, cable, or satellite communication which promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate).
Corporation and Labor Union Restrictions - The BCRA prohibits corporations and labor unions from using monies from their general treasuries for political communications. If these organizations wish to participate in a political process, they can form a PAC and allocate specific funds to that group. PAC expenditures are not limited.
Nonprofit Corporations - The BCRA provides an exception to the above for “nonprofit corporations,” allowing them to fund electioneering activities and communications from their general treasuries. These nonprofits are subject to disclosure requirements, and may not receive donations from corporations or labor unions.
Disclosure and Coordination Restrictions - This part of the BCRA amends the sections of FECA that addresses disclosure and “coordinated expenditure” issues—the idea that “independent” organizations such as PACs could coordinate their electioneering communications with those of the campaign it supports. It includes the so-called “millionaire provisions” that allow candidates to raise funds through increased contribution limits if their opponent’s self-financed personal campaign contributions exceed a certain amount.
Broadcast Restrictions - The BCRA establishes requirements for television broadcasts. All political advertisements must identify their sponsor. It also modifies an earlier law requiring broadcast stations to sell airtime at its lowest prices. Broadcast licensees must collect and disclose records of purchases made for the purpose of political advertisements.
Increased Contribution Limits - The BCRA increases contribution limits. It also bans contributions from minors, with the idea that parents would use their children as unwitting and unlawful conduits to avoid contribution limits.
Lawsuits Challenge Constitutionality - The same day that Bush signs the law into effect, Senator Mitch McConnell (R-KY) and the National Rifle Association (NRA) file lawsuits challenging the constitutionality of the BCRA (see December 10, 2003). [Legal Information Institute, 12/2003]

Entity Tags: Russell D. Feingold, Mitch McConnell, John McCain, National Rifle Association, George W. Bush, Bipartisan Campaign Reform Act of 2002

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

Coming from Pakistan, Jose Padilla steps off the plane at Chicago’s O’Hare International Airport and is arrested by FBI agents. Padilla is carrying $10,526, a cell phone, the names and phone numbers of his al-Qaeda training camp sponsor and recruiter, and e-mail addresses of other al-Qaeda operatives. The FBI takes him to New York and holds him in federal criminal custody on the basis of a material witness warrant in connection to a grand jury investigation into the 9/11 attacks. Padilla is a Muslim convert and also goes by the name of Abdullah Al-Muhajir. [Associated Press, 6/2004; Supreme Court opinion on writ of certiorari to the United States Court of Appeals for the Second Circuit. Donald Rumsfeld v. Jose Padilla, 6/28/2004]

Entity Tags: Federal Bureau of Investigation, Al-Qaeda, Jose Padilla

Timeline Tags: Torture of US Captives

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

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