!! History Commons Alert, Exciting News

Context of 'April 2, 2008: Civil Liberties Group Challenges Administration’s Dismissal of Fourth Amendment'

This is a scalable context timeline. It contains events related to the event April 2, 2008: Civil Liberties Group Challenges Administration’s Dismissal of Fourth Amendment. You can narrow or broaden the context of this timeline by adjusting the zoom level. The lower the scale, the more relevant the items on average will be, while the higher the scale, the less relevant the items, on average, will be.

Congress explicitly refuses to grant the Bush administration the authority to conduct warrantless wiretaps and surveillance operations against US citizens in its resolution authorizing the use of military force (AUMF) against terrorists (see September 14-18, 2001). Tom Daschle (D-SD), the Senate Majority Leader, will write in December 2005 (after his ouster from Congress in November 2004) that the White House and the Justice Department will claim, falsely, that the AUMF grants the right for the NSA to conduct such a program (see Early 2002 and December 15, 2005). Instead, Daschle will write, the NSA merely usurps the authority, with the president’s approval, to conduct such an extralegal surveillance program (see December 21-22, 2005). [Washington Post, 12/22/2005]
Administration Efforts to Rewrite AUMF - In an op-ed for the Washington Post, Daschle will observe that the AUMF authorizes Bush “to use all necessary and appropriate force against those nations, organizations or persons” who “planned, authorized, committed or aided” the 9/11 attacks. But, Daschle will write, “Literally minutes before the Senate cast its vote, the administration sought to add the words ‘in the United States and’ after ‘appropriate force’ in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas—where we all understood he wanted authority to act—but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.”
No Vote for Domestic Surveillance - Daschle will also write that the White House attempted to add draft language to the AUMF resolution that would give the administration new and sweeping authority to use force to “deter and pre-empt any future acts of terrorism or aggression against the United States,” even against nations and organizations not responsible for the 9/11 attacks. Bush officials such as Vice President Dick Cheney will claim that the AUMF “granted authority by the Congress to use all means necessary to take on the terrorists, and that’s what we’ve done.” But Daschle will write that Cheney is mistaken. “As Senate majority leader at the time, I helped negotiate that law with the White House counsel’s office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al-Qaeda did not believe that they were also voting for warrantless domestic surveillance.” On September 12, six days before the September 18 AUMF vote, Bush officials demand that Congress authorize the use of military force to, in their words, “deter and pre-empt any future acts of terrorism or aggression against the United States.” But Congress refuses, feeling that the request is “too broad and ill defined.” Instead, on September 14, Congress choses to use language that authorizes Bush to use “all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided” the 9/11 attacks. Daschle later writes, “With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al-Qaeda.… The shock and rage we all felt in the hours after the attack were still fresh. America was reeling from the first attack on our soil since Pearl Harbor. We suspected thousands had been killed, and many who worked in the World Trade Center and the Pentagon were not yet accounted for. Even so, a strong bipartisan majority could not agree to the administration’s request for an unprecedented grant of authority.” Instead, Daschle will write, the administration simply takes the authority anyway, and will argue in hindsight that the AUMF actually gives the administration the right to wiretap US citizens. However, Daschle will write, “at the time, the administration clearly felt they [didn’t have the authority] or it wouldn’t have tried to insert the additional language.”
Breeding 'Fear and Suspicion' - He concludes, “[T]here are right and wrong ways to defeat terrorists, and that is a distinction this administration has never seemed to accept. Instead of employing tactics that preserve Americans’ freedoms and inspire the faith and confidence of the American people, the White House seems to have chosen methods that can only breed fear and suspicion. If the stories in the media over the past week are accurate [detailing the breadth and apparent illegality of the NSA program], the president has exercised authority that I do not believe is granted to him in the Constitution, and that I know is not granted to him in the law that I helped negotiate with his counsel and that Congress approved in the days after Sept. 11. For that reason, the president should explain the specific legal justification for his authorization of these actions, Congress should fully investigate these actions and the president’s justification for them, and the administration should cooperate fully with that investigation. In the meantime, if the president believes the current legal architecture of our country is insufficient for the fight against terrorism, he should propose changes to our laws in the light of day. That is how a great democracy operates. And that is how this great democracy will defeat terrorism.” [Washington Post, 12/23/2005]

Entity Tags: National Security Agency, Al-Qaeda, Bush administration (43), Washington Post, Tom Daschle, US Department of Justice, Osama bin Laden, Authorization to Use Military Force (AUMF), Richard (“Dick”) Cheney

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

John Yoo.John Yoo. [Source: University of California, Berkeley]In a secret 15-page memo to Deputy White House Counsel Timothy Flanigan, Justice Department lawyer John Yoo, a deputy in the Office of Legal Counsel, reasons that it is “beyond question that the president has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks” of 9/11. Those actions can be extensive. “The president may deploy military force preemptively against terrorist organizations or the states that harbor or support them,” Yoo writes, “whether or not they can be linked to the specific terrorist incidents of Sept. 11.… Force can be used both to retaliate for those attacks, and to prevent and deter future assaults on the nation. Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon.” The memo is solicited and overseen by White House lawyers.
Power Derives from Constitution, Congressional Authorization for War - This power of the president, Yoo states, rests both on the US Congress’ Joint Resolution of September 14 (see September 14-18, 2001) and on the War Powers Resolution of 1973. “Neither statute, however, can 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. These decisions, under our Constitution, are for the president alone to make.” (Most experts believe that the Constitution strictly limits the president’s power to declare and conduct war—see 1787).
Power More Extensive than Congress Authorized - Yoo argues further that the September 14 resolution does not represent the limits to the president’s authority. “We think it beyond question” that 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. These decisions, under our Constitution, are for the president alone to make.” Congress’s “Joint Resolution is somewhat narrower than the president’s constitutional authority,” Yoo writes, as it “does not reach other terrorist individuals, groups, or states which cannot be determined to have links to the September 11 attacks.” The president’s broad power can be used against selected individuals suspected of posing a danger to the US, even though it may be “difficult to establish, by the standards of criminal law or even lower legal standards, that particular individuals or groups have been or may be implicated in attacks on the United States.” Yoo concludes: “[W]e do not think that the difficulty or impossibility of establishing proof to a criminal law standard (or of making evidence public) bars the president from taking such military measures as, in his best judgment, he thinks necessary or appropriate to defend the United States from terrorist attacks. In the exercise of his plenary power to use military force, the president’s decisions are for him alone and are unreviewable.”
'Unenumerated' Presidential Powers - Yoo even asserts that the president has more power than his memo claims: “[T]he president’s powers include inherent executive powers that are unenumerated in the Constitution,” including but not limited to the power to take the country to war without Congressional input. [US Department of Justice, 9/25/2001; Savage, 2007, pp. 121-122]
Memo Remains Secret for Three Years - The contents of this memo are not disclosed until mid-December 2004. [Newsweek, 12/18/2004; Newsweek, 12/27/2004]

Entity Tags: John C. Yoo, Bush administration (43), US Department of Justice, Office of Legal Counsel (DOJ), Timothy E. Flanigan

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Events Leading to Iraq Invasion, Civil Liberties

Bradford Berenson.Bradford Berenson. [Source: PBS]In the weeks following 9/11, government lawyers begin to formulate a legal response to the newly perceived threat of terrorism. Four related issues are at hand: forceful prevention, detention, prosecution, and interrogation. What degree of force can the government employ to prevent acts of terrorism or apprehend suspected terrorists? How and where can it best detain terrorists if captured? How can it best bring them to trial? And how can it best obtain information from them on terrorist organizations and plots? These questions are handled in a new atmosphere that is more tolerant towards flexible interpretations of the law. Bradford Berenson, an associate White House counsel at this time, later recalls: “Legally, the watchword became ‘forward-leaning’ by which everybody meant: ‘We want to be aggressive. We want to take risks.’” [New York Times, 10/24/2004] This attitude is seemingly in line with the president’s thinking. Counterterrorism “tsar” Richard Clarke will later recall President Bush saying, “I don’t care what the international lawyers say. We are going to kick some ass” (see (9:00 p.m.-10:00 p.m.) September 11, 2001). [Clarke, 2004, pp. 23-24] At the center of legal reconstruction work are Alberto R. Gonzales, the White House counsel, his deputy Timothy E. Flanigan, and David S. Addington, legal counsel to Vice President Cheney. [New York Times, 12/19/2004] They will find a helpful hand in the Justice Department’s Office of Legal Counsel (OLC), most notably its head, Assistant Attorney General Jay S. Bybee [Los Angeles Times, 6/10/2004] and his deputies John C. Yoo [New York Times, 8/15/2004] and Patrick F. Philbin. Most of the top government lawyers dwell in fairly conservative circles, with many being a member of the Federalist Society, a conservative legal fraternity. Some have clerked for conservative Supreme Court Justices Antonin Scalia and Clarence Thomas, whose ruling effectively lead to the presidency being awarded to George W. Bush after the 2000 presidential election. [New York Times, 10/24/2004] Others worked for Judge Lawrence H. Silberman, who set up secret contacts with the Iranian government under President Reagan leading to the Iran-Contra scandal, and who advised on pursuing allegations of sexual misconduct by President Clinton. [Inter Press Service, 2/6/2004]

Entity Tags: Patrick F. Philbin, Richard A. Clarke, John C. Yoo, Joan Claybrook, Alberto R. Gonzales, Bradford Berenson, Jay S. Bybee, Alan M. Dershowitz, Rena Steinzor

Timeline Tags: Torture of US Captives, Civil Liberties

President Bush sends a letter to Congress informing legislators that he has ordered US armed forces into combat against the Taliban (see October 7, 2001). Bush does not rely on Congress’s Authorization for Use of Military Force (AUMF—see September 14-18, 2001), but instead asserts his unilateral authority as president to take the country into war. “I have taken these actions pursuant to my constitutional authority to conduct US foreign relations as commander in chief and chief executive,” he writes (see 1787). His letter goes on to express his appreciation to Congress for its “support” in his decision to begin a war against a foreign entity. [Savage, 2007, pp. 127-128]

Entity Tags: Taliban, George W. Bush

Timeline Tags: Civil Liberties

A three-judge panel of the Second US Circuit Court of Appeals in New York votes two to one that the military must either charge alleged al-Qaeda terrorist Jose Padilla with a crime, or release him within 30 days. “The government,” the court says, “can transfer Padilla to appropriate civilian authorities who can bring criminal charges against him.” Until now, no court in the US has ruled against the government’s contention that even American citizens arrested on US soil can be held indefinitely based on wartime government prerogatives. Neither the 2001 Authorization to Use Military Force (see September 14-18, 2001) nor the president’s “inherent power” as commander in chief is enough to hold Padilla without a trial, the court finds: “The president, acting alone, possesses no inherent constitutional authority to detain American citizens seized within the United States, away from a zone of combat, as enemy combatants.” The two judges in the majority are a 1998 Clinton appointee and a 2001 Bush appointee; the dissenter, who advocates granting the president new and sweeping powers, is a 2003 Bush appointee. “So far,” Office of Legal Counsel lawyer John Yoo comments, “the Second Circuit is the only court that has rejected the idea that the war on terrorism is, in fact, a war.” Because this ruling conflicts with the Fourth Circuit’s ruling in favor of the Bush administration, the Supreme Court will be forced to resolve the issue (see June 28, 2004); in light of the appeal, the court later agrees to suspend its 30-day ruling. [Knight Ridder, 12/29/2003; Savage, 2007, pp. 153]

Entity Tags: Jose Padilla, John C. Yoo

Timeline Tags: Torture of US Captives, Civil Liberties

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

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

Timeline Tags: Civil Liberties

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

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

Timeline Tags: Civil Liberties

Yaser Esam Hamdi.Yaser Esam Hamdi. [Source: Associated Press]In the case of Yaser Esam Hamdi v. Donald Rumsfeld, the Supreme Court rules 8-1 that, contrary to the government’s position, Hamdi (see December 2001), as a US citizen held inside the US, cannot be held indefinitely and incommunicado without an opportunity to challenge his detention. It rules he has the right to be given the opportunity to challenge the basis for his detention before an impartial court. Justice Sandra Day O’Connor writes for the majority: “It would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.” Hamdi, on the other hand, apart from military interrogations and “screening processes,” has received no process. Due process, according to a majority of the Court, “demands some system for a citizen detainee to refute his classification [as enemy combatant].” A “citizen-detainee… must receive notice of the factual basis for his classification, and a fair opportunity to rebut the government’s factual assertions before a neutral decision-maker.” However, O’Connor writes, “an interrogation by one’s captor… hardly constitutes a constitutionally adequate factfinding before a neutral decisionmaker.”
Conservative Dissent: President Has Inherent Power to Detain Citizens during War - Only Justice Clarence Thomas affirms the government’s opinion, writing, “This detention falls squarely within the federal government’s war powers, and we lack the expertise and capacity to second-guess that decision.” [Supreme Court opinion on writ of certiorari. Shafiq Rasul, et al. v. George W. Bush, et al., 6/28/2004] Thomas adds: “The Founders intended that the president have primary responsibility—along with the necessary power—to protect the national security and to conduct the nation’s foreign relations. They did so principally because the structural advantages of a unitary executive are essential in these domains.” [Dean, 2007, pp. 105]
'A State of War Is Not a Blank Check for the President' - The authority to hold Hamdi and other such US citizens captured on enemy battlefields derives from Congress’s Authorization to Use Military Force (AUMF—see September 14-18, 2001). Justice Antonin Scalia dissents from this portion of the majority ruling, saying that because Congress had not suspended habeas corpus, Hamdi should either be charged with a crime or released. The Court also finds that if Hamdi was indeed a missionary and not a terrorist, as both he and his father claim, then he must be freed. While the Court does not grant Hamdi the right to a full criminal trial, it grants him the right to a hearing before a “neutral decision-maker” to challenge his detention. O’Connor writes: “It is during our most challenging and uncertain moments that our nation’s commitment to due process is most severely tested; and it is in these times that we must preserve our commitment at home to the principles for which we fight abroad.… We have long made clear that a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”
Affirms President's Right to Hold US Citizens Indefinitely - Although the media presents the ruling as an unmitigated defeat for the Bush administration, it is actually far more mixed. The White House is fairly pleased with the decision, insamuch as Hamdi still has no access to civilian courts; the administration decides that Hamdi’s “neutral decision-maker” will be a panel of military officers. Hamdi will not have a lawyer, nor will he have the right to see the evidence against him if it is classified. This is enough to satisfy the Court’s ruling, the White House decides. In 2007, author and reporter Charlie Savage will write: “[T]he administration’s legal team noted with quiet satisfaction that, so long as some kind of minimal hearing was involved, the Supreme Court had just signed off on giving presidents the wartime power to hold a US citizen without charges or a trial—forever.” The Justice Department says of the ruling that it is “pleased that the [Court] today upheld the authority of the president as commander in chief of the armed forces to detain enemy combatants, including US citizens.… This power, which was contested by lawyers representing individuals captured in the War on Terror, is one of the most essential authorities the US Constitution grants the president to defend America from our enemies.” [Savage, 2007, pp. 193-194]

Entity Tags: Sandra Day O’Connor, Antonin Scalia, Donald Rumsfeld, Yaser Esam Hamdi, Clarence Thomas, Charlie Savage

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

Attorney General Alberto Gonzales and NSA chief Lieutenant General Michael Hayden conduct their own “briefing” on the recently revealed NSA wiretapping program (see December 15, 2005) with the White House press corps. Gonzales and Hayden make the following points:
bullet Gonzales says that he will not discuss the internal workings of the still-classified program, only what he calls its “legal underpinnings.”
bullet He claims that the program, which he calls “the most classified program that exists in the United States government,” is legal because President Bush authorized it, and says that the idea that “the United States is somehow spying on American citizens” is wrong: it is “[v]ery, very important to understand that one party to the communication has to be outside the United States.”
bullet He says that for the NSA to eavesdrop on a US citizen’s telephone or e-mail communications, “we have to have a reasonable basis to conclude that one party to the communication is a member of al-Qaeda, affiliated with al-Qaeda, or a member of an organization affiliated with al-Qaeda, or working in support of al-Qaeda.” The wiretapping program is an essential part of the administration’s war against terror, he says.
bullet He goes on to claim that “the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes” legal grounds for “this kind of signals intelligence.” [White House, 12/19/2005] The White House signed Congress’s Authorization to Use Military Force (AUMF) into law on September 18, 2001 (see September 14-18, 2001. [White House, 9/18/2001]
Hayden Claims Supreme Court Backing - While he admits that the Congressional authorization to use force against international terrorism does not specifically mention any kind of electronic surveillance, he refers the listeners to the Supreme Court case concerning alleged US terrorist Yaser Esam Hamdi (see June 28, 2004), in which the Court ruled that Hamdi had the legal right to challenge his detention. “[T]he United States government took the position that Congress had authorized that detention in the authorization to use force, even though the authorization to use force never mentions the word ‘detention.’ And the Supreme Court, a plurality written by Justice O’Connor agreed. She said, it was clear and unmistakable that the Congress had authorized the detention of an American citizen captured on the battlefield as an enemy combatant for the remainder—the duration of the hostilities. So even though the authorization to use force did not mention the word, ‘detention,’ she felt that detention of enemy soldiers captured on the battlefield was a fundamental incident of waging war, and therefore, had been authorized by Congress when they used the words, ‘authorize the President to use all necessary and appropriate force.’ For the same reason, we believe signals intelligence is even more a fundamental incident of war, and we believe has been authorized by the Congress. And even though signals intelligence is not mentioned in the authorization to use force, we believe that the Court would apply the same reasoning to recognize the authorization by Congress to engage in this kind of electronic surveillance.”
Bush 'Very Concerned' With Protecting Civil Liberties - Gonzales insists, Bush “is very concerned about the protection of civil liberties, and that’s why we’ve got strict parameters, strict guidelines in place out at NSA to ensure that the program is operating in a way that is consistent with the President’s directives.” He adds, “[W]e feel comfortable that this surveillance is consistent with requirements of the Fourth Amendment. The touchstone of the Fourth Amendment is reasonableness, and the Supreme Court has long held that there are exceptions to the warrant requirement in—when special needs outside the law enforcement arena. And we think that that standard has been met here.”
Wiretapping Essential in Catching Terrorists - Hayden reiterates how important the wiretapping is to catching terrorists and stopping potential attacks against US targets, though he and Gonzales both refuse to say what, if any, terrorist plots or what terror suspects might have been captured through the NSA wiretapping program. Hayden does say, “This program has been successful in detecting and preventing attacks inside the United States.…I can say unequivocally, all right, that we have got information through this program that would not otherwise have been available,” though he refuses to cite specifics. He admits that there have been some errors in surveilling innocent US citizens, though he refuses to give any details, and says those errors were quickly corrected.
Administration Not Required to Go Through FISA - Gonzales, who is the main speaker in the briefing, reiterates that while the administration continues to seek warrants from the Foreign Intelligence Surveillance (FISA) court, “we are not legally required to do, in this particular case, because the law requires that we—FISA requires that we get a court order, unless authorized by a statute, and we believe that authorization has occurred.” He justifies the administration’s refusal to use the FISA court for obtaining warrants by insisting that NSA officials “tell me that we don’t have the speed and the agility that we need, in all circumstances, to deal with this new kind of enemy. You have to remember that FISA was passed by the Congress in 1978. There have been tremendous advances in technology… since then.” Hayden adds, “I don’t think anyone could claim that FISA was envisaged as a tool to cover armed enemy combatants in preparation for attacks inside the United States. And that’s what this authorization under the President is designed to help us do.”
'Balancing' of Civil Liberties, National Security - Hayden says the warrantless wiretapping program is part of “a balancing between security and liberty,” a more “aggressive” operation “than would be traditionally available under FISA. It is also less intrusive. It deals only with international calls. It is generally for far shorter periods of time. And it is not designed to collect reams of intelligence, but to detect and warn and prevent about attacks. And, therefore, that’s where we’ve decided to draw that balance between security and liberty.”
Media Leaks Damaging to National Security - Gonzales refuses to talk about when any members of Congress were briefed on the program or what they were told, but he does imply that there will be some sort of leak investigation as to how the New York Times found out about the program: “[T]his is really hurting national security, this has really hurt our country, and we are concerned that a very valuable tool has been compromised. As to whether or not there will be a leak investigation, we’ll just have to wait and see.”
No Evidence of Compromised National Security - When asked whether he can cite any evidence that the revelation of the program’s existence has actually compromised anything—“Don’t you assume that the other side thinks we’re listening to them? I mean, come on,” one reporter says—Gonzales responds, rather confusingly, “I think the existence of this program, the confirmation of the—I mean, the fact that this program exists, in my judgment, has compromised national security, as the President indicated on Saturday.”
Easier to Sidestep FISA Instead of Seek Congressional Approval - He does admit that the administration decided to sidestep the FISA court entirely instead of attempt to work with Congress to rewrite the FISA statutes because “we were advised that that would be difficult, if not impossible” to amend the law to the White House’s satisfaction. Gonzales says those who are concerned about the program being excessively intrusive or a threat to American civil liberties simply “don’t understand the specifics of the program, they don’t understand the strict safeguards within the program.… Part of the reason for this press brief today is to have you help us educate the American people and the American Congress about what we’re doing and the legal basis for what we’re doing.” He adds that any legal experts who believe the program is illegal are basing their judgments “on very limited information.”
Tough Questioning - One reporter asks an unusually tough series of questions to Gonzales: “Do you think the government has the right to break the law?”, to which Gonzales replies, “Absolutely not. I don’t believe anyone is above the law.” The reporter then says, “You have stretched this resolution for war into giving you carte blanche to do anything you want to do,” to which Gonzales replies cryptically, “Well, one might make that same argument in connection with detention of American citizens, which is far more intrusive than listening into a conversation.” The reporter insists, “You’re never supposed to spy on Americans,” and Gonzales deflects the responsibility for the decision back onto the Supreme Court.
Administration Will Tell Nation What It Needs to Know - Gonzales says the administration has no intention of releasing any of the classified legal opinions underpinning the program, and this press briefing is one of the methods by which the administration will “educat[e] the American people…and the Congress” to give them what they need to know about the program. [White House, 12/19/2005]

Entity Tags: White House press corps, Michael Hayden, Al-Qaeda, National Security Agency, Alberto R. Gonzales, George W. Bush, Foreign Intelligence Surveillance Court

Timeline Tags: Civil Liberties

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

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

Timeline Tags: Civil Liberties

Fourteen law professors and former federal officials send a letter criticizing the Justice Department’s recent legal arguments supporting the legality of the secret NSA surveillance program (see December 19, 2005 and December 21-22, 2005). The letter is signed by law professors Curtis A. Bradley, a former State Department legal advisor; David Cole; Walter Dellinger, a former acting solicitor general and assistant attorney general; Ronald Dworkin; Richard Epstein; Harold Koh, a former assistant secretary of state and a former Justice Department official; Philip B. Heymann, a former deputy attorney general; Martin Lederman, a former Justice Department official; Beth Nolan, a former presidential counsel and a former Justice Department official; William S. Sessions, the former director of the FBI; Geoffrey R. Stone; Kathleen M. Sullivan; Laurence H. Tribe; and William Van Alstyne, a former Justice Department attorney. The letter is couched in legal language, but clearly states that the signees consider the NSA surveillance program entirely illegal: “[T]he program appears on its face to violate existing law.” The signees consider and reject the Justice Department’s argument that Congress “implicitly authorized the NSA program when it enacted the Authorization for Use of Military Force (AUMF) against al-Qaeda” in 2001 (see September 14-18, 2001), writing: “[T]he AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime, where Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first 15 days of war.” The signees also reject the Justice Department’s argument that the president’s “inherent constitutional authority as commander in chief to collect ‘signals intelligence’” is not prohibited by FISA. The signees conclude that the Justice Department has failed “to offer a plausible legal defense of the NSA domestic spying program. If the administration felt that FISA was insufficient, the proper course was to seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA. One of the crucial features of a constitutional democracy is that it is always open to the president—or anyone else—to seek to change the law. But it is also beyond dispute that, in such a democracy, the president cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable.” [Marty Lederman, 1/9/2006; Center for Democracy and Technology, 1/9/2006 pdf file]

Entity Tags: Harold Koh, William S. Sessions, William Van Alstyne, Curtis Bradley, Beth Nolan, Geoffrey Stone, US Department of Justice, Walter Dellinger, Richard Epstein, Martin (“Marty”) Lederman, Laurence Tribe, Kathleen M. Sullivan, Ronald Dworkin, National Security Agency, Philip Heymann, David D. Cole

Timeline Tags: Civil Liberties

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

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

Timeline Tags: Civil Liberties

Speaking to a cheering crowd of military families in Kansas, President Bush declares that he has no intention of following the laws requiring warrants for wiretaps (see December 15, 2005 and December 18, 2005) because Congress authorized the use of military force against terrorists (AUMF—see September 14-18, 2001), and because he has the power to bypass laws at his own discretion in the interest of national security. The Kansas appearance is part of an election-style “blitz” of appearances around the country designed to build support for the warrantless wiretapping program, and to bolster support for Republicans in the midterm elections (see January 20, 2006). “I’m not a lawyer, but I can tell you what [the AUMF] means,” he says. “It means Congress gave me the authority to use necessary force to protect the American people but it didn’t prescribe the tactics.… If [terrorism suspects] are making phone calls into the United States, we need to know why, to protect you.” [Savage, 2007, pp. 203]

Entity Tags: George W. Bush

Timeline Tags: Civil Liberties

The Bush administration confirms that it believes US citizens can be designated as “enemy combatants” under the Military Commissions Act (MCA—see October 17, 2006). The confirmation comes during the trial of Ali Saleh Kahlah al-Marri, a Qatari and the only person on the American mainland being held as an enemy combatant. Al-Marri, currently held at the Charleston, South Carolina Naval brig, is a legal US resident accused of being a sleeper agent for al-Qaeda (see September 10, 2001). He was arrested in December 2001, while living with his family and studying computer science at Bradley University in Illinois. Al-Marri is charged, not with any direct terrorist activities, but with credit card fraud and lying to federal agents. He is challenging his indefinite detention in federal court, and the government is using the MCA to argue that al-Marri has no status in the courts because of his designation as an enemy combatant. One of the appellate court judges, Roger Gregory, asks Justice Department lawyer David Salmons, “What would prevent you from plucking up anyone and saying, ‘You are an enemy combatant?’” Salmons responds that the government can do just that, without interference from the courts, and adds, “A citizen, no less than an alien, can be an enemy combatant.” Gregory and the second of the three appellate judges, Diana Gribbon Motz, seem uncomfortable with the law’s provisions that the US judiciary has no role in such designations. When Motz asks Salmons about the difference between nations making war and individuals committing acts of terrorism, Salmons retorts with a familiar, and long-disputed, argument that the US Congress gave the government the right to detain terrorist suspects without charge or recourse to the judiciary when it granted the administration the right to use military force against terrorists after the 9/11 attacks (see September 14-18, 2001).
Theoretically Declaring War on PETA - Motz is skeptical of the argument, and asks a series of hypothetical questions about just what organizations or individuals President Bush could designate as enemy combatants. Using the animal rights group People for the Ethical Treatment of Animals (PETA) as an example, Motz asks, “Could the president declare war on PETA?” Salmons says the question is unrealistic, but refuses to say that Bush could not do so if he chose. The Bush administration is careful in its use of the enemy combatant designation, Salmons says, therefore, “The representative of PETA can sleep well at night.” [New York Times, 2/2/2007]
Ignoring Constitutional Concept of 'Inalienable Rights' - Author and investigative journalist Robert Parry notes that in the al-Marri case, the Bush administration is arguing against the concept of “inalienable,” or “unalienable,” rights as granted by the Constitution and the Bill of Rights. According to the administration, as long as the US is embroiled in what it calls the “war on terror,” Bush can use his “plenary,” or unlimited, executive powers to essentially waive laws and ignore Constitutional rights if he so chooses. Parry writes that “since the ‘war on terror’ will go on indefinitely and since the ‘battlefield’ is everywhere, Bush is asserting the president’s right to do whatever he wants to whomever he wants wherever the person might be, virtually forever.” Parry concludes, “The Justice Department’s arguments in the [al-]Marri case underscore that Bush still sees himself as a modern-day version of the absolute monarch who gets to decide which rights and freedoms his subjects can enjoy and which ones will be denied.” [Consortium News, 2/3/2007]

Entity Tags: Military Commissions Act, Bush administration (43), Ali Saleh Kahlah al-Marri, Al-Qaeda, David Salmons, George W. Bush, Robert Parry, Roger Gregory, Diana Gribbon Motz, US Department of Justice, People for the Ethical Treatment of Animals

Timeline Tags: Civil Liberties

A federal appeals court rules that “enemy combatant” Ali Saleh Kahlah al-Marri (see December 12, 2001 and February 1, 2007) must be released from military custody. “To sanction such presidential authority to order the military to seize and indefinitely detain civilians,” writes Judge Diana Gribbon Motz, “even if the President calls them ‘enemy combatants,’ would have disastrous consequences for the Constitution—and the country.” She adds, “We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.” [New York Times, 6/11/2007] Motz continues, “The president cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention.”
Military Commissons Act Does Not Apply - The Military Commissions Act (MCA) (see October 17, 2006) does not apply to al-Marri, the court rules. [Bloomberg, 6/11/2007] Motz writes that the MCA does not apply to al-Marri and the court also rules that the government failed to prove its argument that the Authorization for Use of Military Force, enacted by Congress immediately after the 9/11 attacks (see September 14-18, 2001), gives President Bush the power to detain al-Marri as an enemy combatant. [Associated Press, 6/11/2007] Motz also notes that even though the government says the MCA applies to al-Marri’s case, it did not follow its own guidelines under that law. The MCA requires all such detainees to be granted a Combat Status Review Tribunal (CRST) determination; all Guantanamo-based detainees have been given such a procedure. Al-Marri has not. The government did not suggest the procedure for al-Marri until the day it filed its motion to dismiss al-Marri’s case. [Christian Science Monitor, 6/13/2007] The case, al-Marri v. Wright, was filed against Navy Commander S.L. Wright, who oversees the Charleston military prison that houses al-Marri. [Bloomberg, 6/11/2007]
Government Arguments Repudiated - The 2-1 decision of the US Court of Appeals in Richmond was written for the majority by Motz. Al-Marri is the only person held on the US mainland as an enemy combatant, and has been held in isolation for four years (see August 8, 2005). The government has alleged since 2002 that al-Marri was an al-Qaeda sleeper agent sent to the US to commit mass murder and disrupt the US banking system (see June 23, 2003). Motz writes that while al-Marri may well be guilty of serious crimes, the government cannot sidestep the US criminal justice system through military detention. The al-Marri ruling apparently does not apply to enemy combatants and other detainees held without charges or legal access at the facility in Guantanamo Bay, Cuba. The dissenting judge, Henry Hudson, writes that President Bush “had the authority to detain al-Marri as an enemy combatant or belligerent” because “he is the type of stealth warrior used by al-Qaeda to perpetrate terrorist acts against the United States.” Hudson is a Bush appointee. Motz and Judge Roger Gregory, the concurring judge, were appointed by former president Bill Clinton. Motz orders the Pentagon to issue a writ of habeas corpus for al-Marri “within a reasonable period of time.” The Pentagon may release him, hold him as a material witness, or charge him in the civilian court system. Al-Marri “can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely,” she writes, “But military detention of al-Marri must cease.” [New York Times, 6/11/2007; Bloomberg, 6/11/2007]
Democracy Vs. 'Police State' - Hafetz says: “We’re pleased the court saw through the government’s stunning position in this case. Had it not, the executive could effectively disappear people by picking up any immigrant in this country, locking them in a military jail, and holding the keys to the courthouse.… This is exactly what separates a country that is democratic and committed to the rule of law from a country that is a police state.” [Christian Science Monitor, 6/13/2007]
Justice Department to Challenge Decision - The Justice Department intends to challenge the decision (see June 11, 2007 and Late October-Early November, 2007). The case is expected to reach the Supreme Court, and may help define what authority the government has to indefinitely detain terror suspects and to strip detainees of their right to challenge the legality and conditions of their detention. [Associated Press, 6/11/2007] For the time being, al-Marri will remain in military custody in the Charleston naval brig. [Cincinnati Post, 6/12/2007]

Entity Tags: Diana Gribbon Motz, Combat Status Review Tribunal, Al-Qaeda, Ali Saleh Kahlah al-Marri, US Department of Justice, Henry Hudson, US Supreme Court, Jonathan Hafetz, US Department of Defense, Military Commissions Act, George W. Bush, S.L. Wright

Timeline Tags: Torture of US Captives, Civil Liberties

A federal appeals court hears the case of alleged al-Qaeda sleeper agent Ali Saleh Kahlah al-Marri, who was the victor in a recent court decision that ruled he could no longer be held in military detention with no access to the US court system (see June 11, 2007). Al-Marri’s lawyer, Jonathan Hafetz, asks the Fourth US Court of Appeals to uphold the recent verdict, which was rendered by a three-judge panel from the same court. Now the entire court is reconsidering the case at the government’s request. Hafetz says the court must uphold the decision. “To rule otherwise is to sanction a power the president has never had and was never meant to have.”
Authorization for the Use of Military Force - Judge Paul Neimeyer, a George H. W. Bush appointee, challenges Hafetz’s assertion that al-Marri cannot be held in military custody because he was not captured on a battlefield; to make such a claim would mean “25 or 30 terrorists could sneak into the US” and the military could not stop them. Justice Department lawyer Gregory Garre makes the same argument that the appeals court panel rejected—that Congress gave the president the authority to seize and detain anyone affiliated with al-Qaeda, regardless of where they were captured, when it passed its Authorization for the Use of Military Force (AUMF) after the 9/11 attacks (see September 14-18, 2001). Judge J. Harvie Wilkinson, appointed to the bench by former president Ronald Reagan, says that Congress could appeal or revise the AUMF whenever it likes. [Associated Press, 10/31/2007] Wilkinson acknowledges that many have concerns that the AUMF “may have authorized some sweeping detention problem… [, b]ut people are not being swept off the streets of Omaha.” Judge Diana Gribbon Motz interjects, “No, it was Peoria.”
Question of Constitutionality - Wilkinson wonders why the “carefully targeted response by the government” has created “all this hoopla?” Comparing the detention of al-Marri and another enemy combatants, Jose Padilla, to the round-ups of German-Americans during World War I and of Japanese-Americans during World War II, Wilkinson asks if “we’ve lost our sense of perspective.” Judge Roger Gregory says: “The calculus for determining constitutionality is not whether we have a good king or a bad king. It’s not whether he stays his hand in generosity.” Motz and Gregory were the majority judges in the June decision. When Garre argues that al-Marri had ample opportunity to challenge his detention, and “squandered” those opportunities, Judge William Traxler asks, “How does a person who’s held incommunicado challenge” his detention? [Baltimore Daily Record, 11/1/2007]

Entity Tags: US Department of Justice, Roger Gregory, William Traxler, Ronald Reagan, Paul Neimeyer, Jonathan Hafetz, Ali Saleh Kahlah al-Marri, Al-Qaeda, Jose Padilla, Diana Gribbon Motz, Gregory Garre, J. Harvie Wilkinson, George Herbert Walker Bush

Timeline Tags: Torture of US Captives, Civil Liberties

The Electronic Frontier Foundation joins the American Civil Liberties Union in its skeptical response to the news of a secret October 2001 Justice Department memo that says the Fourth Amendment does not apply in government actions taken against terrorists (see April 2, 2008). “Does this mean that the administration’s lawyers believed that it could spy on Americans with impunity and face no Fourth Amendment claim?” it asks in a statement. “It may, and based on the thinnest of legal claims—that Congress unintentionally allowed mass surveillance of Americans when it passed the Authorization of Use of Military Force in… 2001 (see September 14-18, 2001) .… In short, it appears that the administration may view NSA domestic surveillance, including the surveillance of millions of ordinary Americans… as a ‘domestic military operation.’ If so, this Yoo memo would blow a loophole in the Fourth Amendment big enough to fit all of our everyday telephone calls, web searches, instant messages and emails through.… Of course, the [Justice Department’s] public defense of the NSA program also asserted that warrantless surveillance did not violate the Fourth Amendment.… But the memo referenced above raises serious questions. The public deserves to know whether the 2001 Yoo memo on domestic military operations—issued the same month that the NSA program began—asserted that the Fourth Amendment did not apply to domestic surveillance operations conducted by the NSA. And of course it reinforces why granting immunity aimed at keeping the courts from ruling on the administration’s flimsy legal arguments is wrongheaded and dangerous.” [Electronic Frontier Foundation, 4/2/2008]

Entity Tags: American Civil Liberties Union, National Security Agency, US Department of Justice, Electronic Frontier Foundation

Timeline Tags: Civil Liberties

A federal judge denies the US government’s request (see May 25, 2012) to reconsider her order (see May 16, 2012) blocking enforcement of a law authorizing indefinite military detention, without charge or trial, of anyone, including US citizens arrested in the United States, accused of supporting groups hostile to the United States. Section 1021 of the 2012 National Defense Authorization Act (NDAA—see December 15, 2011) is under review in the case of Hedges v. Obama (see January 13, 2012) and Judge Katherine B. Forrest of the US District Court, New York Southern Division had issued a preliminary injunction enjoining enforcement of the law after finding it unconstitutional.
Controversy over Scope of Detention Authority - The US government had also stated in its request for reconsideration that it was interpreting Forrest’s order as applying only to the plaintiffs in the case. Forrest clarifies in her subsequent Memorandum Opinion and Order that by enjoining enforcement of § 1021(b)(2), the only remaining persons the law can be applied to are those defined in § 1021(b)(1): “A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.” This definition of covered persons is the same as the one given in the 2001 Authorization for Use of Military Force, passed by Congress following the September 11 attacks (see September 14-18, 2001). The Supreme Court has only ruled on a narrow range of relevant detention issues; one oft-cited case is Hamdi v. Rumsfeld (see June 28, 2004). Lower courts have produced a variety of opinions, some upholding an expansive view of detention authorities, others challenging it. In § 1021 of the NDAA, Congress asserted that it “affirms” detention authority granted under the AUMF, and does not “expand… the scope of the [AUMF].” Senator Carl Levin (D-MI), during a debate on the NDAA, explained the language in this way: “[W]e make clear whatever the law is. It is unaffected by this language in our bill” (see December 15, 2011). Congress included a separate, broader definition of covered persons in § 1021(b)(2) that potentially covered anyone alleged by the government to have supported groups hostile to the US, including US citizens arrested in the United States. This section is what prompted Hedges to sue, alleging these provisions violated his First and Fifth Amendment rights (see January 13, 2012). Forrest found the bill’s broad and vague provisions for indefinite military detention to be unconstitutional, and Congress’s statement that it was only affirming established law to be “contrary to basic principles of legislative interpretation that require Congressional enactments to be given independent meaning” (see May 16, 2012). [MEMORANDUM OPINION & ORDER: Hedges et al v. Obama 12 Civ. 331 (KBF) affirming preliminary injunction and scope, 6/6/2012]

Entity Tags: US Department of Justice, Katherine B. Forrest, Carl Levin, United States District Court, New York, Southern Division, National Defense Authorization Act of 2012

Timeline Tags: Civil Liberties

Ordering 

Time period


Email Updates

Receive weekly email updates summarizing what contributors have added to the History Commons database

 
Donate

Developing and maintaining this site is very labor intensive. If you find it useful, please give us a hand and donate what you can.
Donate Now

Volunteer

If you would like to help us with this effort, please contact us. We need help with programming (Java, JDO, mysql, and xml), design, networking, and publicity. If you want to contribute information to this site, click the register link at the top of the page, and start contributing.
Contact Us

Creative Commons License Except where otherwise noted, the textual content of each timeline is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike