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Context of 'April 2, 2008: ACLU Calls on Justice Department to Release October 2001 Memo Nullifying Fourth Amendment'

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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

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

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

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

Timeline Tags: Civil Liberties

The 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

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

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

The FBI dramatically escalates its warrantless wiretaps of US citizens, most without the proper paperwork or oversight. The public will not learn of the FBI wiretapping program until October 2005, when classified documents will be made available to the Electronic Privacy Information Center (EPIC), an advocacy group that will sue the Justice Department for records relating to the Patriot Act. According to those documents, which are heavily redacted, the FBI conducts clandestine surveillance on some US residents for 18 months and even longer. The FBI will also internally investigate at least 287 violations of its use of secret surveillance against US citizens. One target will be kept under surveillance for over five years, including a 15-month stretch where the FBI fails to notify Justice Department lawyers after the subject moves from New York to Detroit. According to an FBI investigation, that delay is a violation of department guidelines and will prevent the department “from exercising its responsibility for oversight and approval of an ongoing foreign counterintelligence investigation of a US person.” Other cases involve agents obtaining e-mails after warrants expire, seizing bank records without authorization, and conducting improper “unconsented physical search(es).” EPIC’s general counsel, David Sobel, will say in October 2005 that the classified documents indicate possible misconduct by the FBI in counterintelligence investigations, and highlight the need for greater congressional oversight of clandestine surveillance within the United States. “We’re seeing what might be the tip of the iceberg at the FBI and across the intelligence community,” Sobel will say. “It indicates that the existing mechanisms do not appear adequate to prevent abuses or to ensure the public that abuses that are identified are treated seriously and remedied.” The FBI will counter by insisting that all of the infractions are minor, mostly what it calls administrative errors, and that any information obtained improperly is quarantined and eventually destroyed. One senior FBI official will say, “Every investigator wants to make sure that their investigation is handled appropriately, because they’re not going to be allowed to keep information that they didn’t have the proper authority to obtain. But that is a relatively uncommon occurrence. The vast majority of the potential [violations] reported have to do with administrative timelines and time frames for renewing orders.” Catherine Lotrionte, the counsel for the President’s Foreign Intelligence Advisory Board, which is tasked with overseeing the FBI’s domestic surveillance operations, will refuse to disclose any details of any of the FBI violations, saying most of its work is classified and covered by executive privilege. The surveillance operations are conducted under the aegis of the Foreign Intelligence Surveillance Act (see 1978), whose threshold for such surveillance is lower than for criminal warrants. In 2004 alone, over 1,700 new cases will be opened by the secret Foreign Intelligence Surveillance Court. [Washington Post, 10/24/2005] Though Bush officials eventually admit to beginning surveillance of US citizens 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).

Entity Tags: Issuetsdeah, Federal Bureau of Investigation, Catherine Lotrionte, Electronic Privacy Information Center, David Sobel, US Department of Justice, Foreign Intelligence Surveillance Court

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

Former AT&T employee Mark Klein.Former AT&T employee Mark Klein. [Source: PBS]The National Security Agency, as part of its huge, covert, and possibly illegal wiretapping program directed at US citizens (see Spring 2001 and After September 11, 2001), begins collecting telephone records of tens of millions of Americans, using data provided by telecommunications firms such as AT&T, Verizon, and BellSouth (see February 5, 2006). The media will not report on this database until May 2006 (see May 11, 2006). The program collects information on US citizens not suspected of any crime or any terrorist connections. Although informed sources say the NSA is not listening to or recording actual conversations, the agency is using the data to analyze calling patterns in an effort to detect terrorist activity. “It’s the largest database ever assembled in the world,” says one anonymous source. The NSA intends “to create a database of every call ever made.” As a result, the NSA has detailed records of the phone activities of tens of millions of US citizens, from local calls to family and friends to international calls. The three telecommunications companies are working with the NSA in part under the Communications Assistance Act for Law Enforcement (CALEA) (see January 1, 1995 and June 13, 2006) and in part under contract to the agency.
Surveillance Much More Extensive Than Acknowledged - The wiretapping program, which features electronic surveillance of US citizens without court warrants or judicial oversight, is far more extensive than anything the White House or the NSA has ever publicly acknowledged. President Bush will repeatedly insist that the NSA focuses exclusively on monitoring international calls where one of the call participants is a known terrorist suspect or has a connection to terrorist groups (see December 17, 2005 and May 11, 2006), and he and other officials always insist that domestic calls are not monitored. This will be proven false. The NSA has become expert at “data mining,” sifting through reams of information in search of patterns. The warrantless wiretapping database is one source of information for the NSA’s data mining. As long as the NSA does not collect “personal identifiers”—names, Social Security numbers, street addresses, and the like—such data mining is legal. But the actual efficacy of the wiretapping program in learning about terrorists and possibly preventing terrorist attacks is unclear at best. And many wonder if the NSA is not repeating its activities from the 1950s and 1960s, when it conducted “Operation Shamrock” (see 1945-1975), a 20-year program of warrantless wiretaps of international phone calls at the behest of the CIA and other intelligence agencies. Operation Shamrock, among other things, led to the 1978 passage of the Foreign Intelligence Surveillance Act (see 1978). [USA Today, 5/11/2006] In May 2006, former NSA director Bobby Ray Inman will say, “[T]his activity is not authorized” (see May 12, 2006). [Democracy Now!, 5/12/2006]
Secret Data Mining Center - In May 2006, retired AT&T technician Mark Klein, a 22-year veteran of the firm, will file a court affidavit saying that he saw the firm construct a secret data-mining center in its San Francisco switching center that would let the NSA monitor domestic and international communications (see January 2003). And former AT&T workers say that, as early as 2002, AT&T has maintained a secret area in its Bridgeton, Missouri, facility that is likely being used for NSA surveillance (see Late 2002-Early 2003).
Domestic Surveillance Possibly 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, Verizon Communications, Mark Klein, George W. Bush, AT&T, BellSouth, Central Intelligence Agency, Communications Assistance for Law Enforcement Act (CALEA), Foreign Intelligence Surveillance Act, Qwest, National Security Agency

Timeline Tags: Civil Liberties

John Yoo, a deputy assistant attorney general in the Justice Department’s Office of Legal Counsel, and OLC special counsel Robert Delahunty issue a joint memo to White House counsel Alberto Gonzales. The memo claims that President Bush has sweeping extraconstitutional powers to order military strikes inside the US if he says the strikes are against suspected terrorist targets. In the days following the 9/11 attacks, Gonzales asked if Bush could legally order the military to combat potential terrorist activity within the US. The memo is first revealed to exist seven years later (see April 2, 2008) after future OLC head Steven Bradbury acknowledges its existence to the American Civil Liberties Union; it will be released two months after the Bush administration leaves the White House (see March 2, 2009). [US Department of Justice, 10/23/2001 pdf file; American Civil Liberties Union [PDF], 1/28/2009 pdf file; New York Times, 3/2/2009]
Granting Extraordinary, Extraconstitutional Authority to Order Military Actions inside US - Yoo and Delahunty’s memo goes far past the stationing of troops to keep watch at airports and around sensitive locations. Instead, the memo says that Bush can order the military to conduct “raids on terrorist cells” inside the US, and even to seize property. “The law has recognized that force (including deadly force) may be legitimately used in self-defense,” they write. In 2009, Reuters will write, “The US military could have kicked in doors to raid a suspected terrorist cell in the United States without a warrant” under the findings of the OLC memo. “We do not think that a military commander carrying out a raid on a terrorist cell would be required to demonstrate probable cause or to obtain a warrant,” Yoo and Delahunty write. [US Department of Justice, 10/23/2001 pdf file; New York Times, 3/2/2009; Reuters, 3/2/2009] The memo reasons that since 9/11, US soil can be legally construed as being a battlefield, and Congress has no power to restrict the president’s authority to confront enemy tactics on a battlefield. [Savage, 2007, pp. 131]
No Constitutional or Other Legal Protections - “[H]owever well suited the warrant and probable cause requirements may be as applied to criminal investigations or to other law enforcement activities, they are unsuited to the demands of wartime and the military necessity to successfully prosecute a war against an enemy. [Rather,] the Fourth Amendment does not apply to domestic military operations designed to deter and prevent foreign terrorist attacks.” Any objections based on the Fourth Amendment’s ban on unreasonable search and seizures would be invalid since whatever possible infringement on privacy would be trumped by the need to protect the nation from injury by deadly force. The president is “free from the constraints of the Fourth Amendment.” The Posse Comitatus Act, which bars the military from operating inside the US for law enforcement purposes, is also moot, the memo says, because the troops would be acting in a national security function, not as law enforcement. [US Department of Justice, 10/23/2001 pdf file; American Civil Liberties Union [PDF], 1/28/2009 pdf file; New York Times, 3/2/2009; Reuters, 3/2/2009; Ars Technica, 3/2/2009] There are virtually no restrictions on the president’s ability to use the military because, Yoo and Delahunty write, the nation is in a “state of armed conflict.” The scale of violence, they argue, is unprecedented and “legal and constitutional rules” governing law enforcement, even Constitutional restrictions, no longer apply. The US military can be used for “targeting and destroying” hijacked airplanes, they write, or “attacking civilian targets, such as apartment buildings, offices, or ships where suspected terrorists were thought to be.” The memo says, “Military action might encompass making arrests, seizing documents or other property, searching persons or places or keeping them under surveillance, intercepting electronic or wireless communications, setting up roadblocks, interviewing witnesses, or searching for suspects.” [Newsweek, 3/2/2009] Yoo writes that the Justice Department’s criminal division “concurs in our conclusion” that federal criminal laws do not apply to the military during wartime. The criminal division is headed by Michael Chertoff, who will become head of the Department of Homeland Security. [Washington Post, 4/4/2008]
Sweeping Away Constitutional Rights - Civil litigator Glenn Greenwald will later note that the memo gives legal authorization for President Bush to deploy the US military within US borders, to turn it against foreign nationals and US citizens alike, and to render the Constitution’s limits on power irrelevant and non-functional. Greenwald will write, “It was nothing less than an explicit decree that, when it comes to presidential power, the Bill of Rights was suspended, even on US soil and as applied to US citizens.”
Justifying Military Surveillance - Greenwald will note that the memo also justifies the administration’s program of military surveillance against US citizens: “[I]t wasn’t only a decree that existed in theory; this secret proclamation that the Fourth Amendment was inapplicable to what the document calls ‘domestic military operations’ was, among other things, the basis on which Bush ordered the NSA, an arm of the US military, to turn inwards and begin spying—in secret and with no oversight—on the electronic communications (telephone calls and emails) of US citizens on US soil” (see December 15, 2005 and Spring 2004). “If this isn’t the unadorned face of warped authoritarian extremism,” Greenwald will ask, “what is?” [Salon, 3/3/2009] If the president decides to use the military’s spy agency to collect “battlefield intelligence” on US soil, no law enacted by Congress can regulate how he goes about collecting that information, including requiring him to get judicial warrants under the Foreign Intelligence Surveillance Act (FISA). In 2007, Yoo will say in an interview: “I think there’s a law greater than FISA, which is the Constitution, and part of the Constitution is the president’s commander in chief power. Congress can’t take away the president’s powers in running war.” [Savage, 2007, pp. 131; PBS Frontline, 5/15/2007] Cheney and Addington will push the NSA to monitor all calls and e-mails, including those beginning and ending on US soil, but the NSA will balk. Domestic eavesdropping without warrants “could be done and should be done,” Cheney and Addington argue, but the NSA’s lawyers are fearful of the legal repercussions that might follow once their illegal eavesdropping is exposed, with or without the Justice Department’s authorization. The NSA and the White House eventually reach a compromise where the agency will monitor communications going in and out of the US, but will continue to seek warrants for purely domestic communications (see Spring 2001, After September 11, 2001, and October 2001). [Savage, 2007, pp. 131]
Military Use Considered - In 2009, a former Bush administration lawyer will tell a reporter that the memo “gave rise to the Justice Department discussing with the Defense Department whether the military could be used to arrest people and detain people inside the United States. That was considered but rejected on at least one occasion.” The lawyer will not give any indication of when this will happen, or to whom. Under the proposal, the suspects would be held by the military as “enemy combatants.” The proposal will be opposed by the Justice Department’s criminal division and other government lawyers and will ultimately be rejected; instead, the suspects will be arrested under criminal statutes. [Los Angeles Times, 3/3/2009]

Entity Tags: Steven Bradbury, US Department of Homeland Security, US Department of Defense, Robert J. Delahunty, Office of Legal Counsel (DOJ), Bush administration (43), Michael Chertoff, Alberto R. Gonzales, National Security Agency, American Civil Liberties Union, Glenn Greenwald, George W. Bush, US Department of Justice, John C. Yoo

Timeline Tags: Civil Liberties

Siding with the Pentagon and Justice Department against the State Department, President Bush declares the Geneva Conventions invalid with regard to conflicts with al-Qaeda and the Taliban. Secretary of State Colin Powell urges Bush to reconsider, saying that while Geneva does not apply to al-Qaeda terrorists, making such a decision for the Taliban—the putative government of Afghanistan—is a different matter. Such a decision could put US troops at risk. Both Defense Secretary Donald Rumsfeld and Joint Chiefs chairman General Richard B. Myers support Powell’s position. Yet another voice carries more weight with Bush: John Yoo, a deputy in the Justice Department’s Office of Legal Counsel (OLC—see October 23, 2001). Yoo says that Afghanistan is a “failed state” without a functional government, and Taliban fighters are not members of an army as such, but members of a “militant, terrorist-like group” (see January 9, 2002). White House counsel Alberto Gonzales agrees with Yoo in a January 25 memo, calling Yoo’s opinion “definitive.” The Gonzales memo concludes that the “new kind of war” Bush wants to fight should not be equated with Geneva’s “quaint” privileges granted to prisoners of war, or the “strict limitations” they impose on interrogations (see January 25, 2002). Military lawyers dispute the idea that Geneva limits interrogations to recitals of name, rank, and serial number, but their objections are ignored. For an OLC lawyer to override the judgment of senior Cabinet officials is unprecedented. OLC lawyers usually render opinions on questions that have already been deliberated by the legal staffs of the agencies involved. But, perhaps because OLC lawyers like Yoo give Bush the legal opinions he wants, Bush grants that agency the first and last say in matters such as these. “OLC was definitely running the show legally, and John Yoo in particular,” a former Pentagon lawyer will recall. “Even though he was quite young, he exercised disproportionate authority because of his personality and his strong opinions.” Yoo is also very close to senior officials in the office of the vice president and in the Pentagon’s legal office. [Ledger (Lakeland FL), 10/24/2004]
Undermining, Cutting out Top Advisers - Cheney deliberately cuts out the president’s national security counsel, John Bellinger, because, as the Washington Post will later report, Cheney’s top adviser, David Addington, holds Bellinger in “open contempt” and does not trust him to adequately push for expanded presidential authority (see January 18-25, 2002). Cheney and his office will also move to exclude Secretary of State Colin Powell from the decision-making process, and, when the media learns of the decision, will manage to shift some of the blame onto Powell (see January 25, 2002). [Washington Post, 6/24/2007]
Final Decision - Bush will make his formal final declaration three weeks later (see February 7, 2002).

Entity Tags: US Department of Defense, US Department of Justice, Richard B. Myers, US Department of State, Taliban, Office of Legal Counsel (DOJ), John C. Yoo, Alberto R. Gonzales, Richard (“Dick”) Cheney, Colin Powell, Al-Qaeda, Condoleezza Rice, Donald Rumsfeld, John Bellinger, George W. Bush, Geneva Conventions, David S. Addington

Timeline Tags: Torture of US Captives, Civil Liberties

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

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

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

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

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

Timeline Tags: Civil Liberties

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

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

Timeline Tags: Civil Liberties

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

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

Timeline Tags: Civil Liberties

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

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

Timeline Tags: Civil Liberties

Bruce Fein, a former deputy attorney general in the Reagan administration, testifies before the Senate Judiciary Committee on the subject of the president’s wartime authority and the illegal wiretapping of American citizens (see December 15, 2005). “This is a defining moment in the constitutional history of the United States,” Fein tells the committee. “The theory invoked by the president to justify eavesdropping by the NSA in contradiction to FISA (see April 30, 1986 and October 23, 2001) would equally justify mail openings, burglaries, torture, or internment camps, all in the name of gathering foreign intelligence. Unless rebuked it will lie around like a loaded weapon, ready to be used by any incumbent who claims an urgent need.” In 2007, author and reporter Charlie Savage will write concerning Fein’s statement: “[A] president had secretly claimed the power to ignore a law, and then he had acted on that power. In so doing, the Bush-Cheney administration unleashed imperial power. Even if they had not personally abused their power, there was no guarantee that future presidents would show the same restraint. Moreover, there was no difference in principle between the warrant law [FISA] and any other law that regulates how the president can carry out his national security responsibilities. By demonstrating that a president can set aside a statute or treaty at will, the administration had set a precedent that future presidents, liberal and conservative alike, would be able to cite when they, too, wanted to violate a legal restriction on their power.” [Savage, 2007, pp. 133-134]

Entity Tags: Foreign Intelligence Surveillance Act, Bruce Fein, Charlie Savage, National Security Agency, Bush administration (43), Reagan administration, Senate Judiciary Committee

Timeline Tags: Civil Liberties

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

Entity Tags: Military Commissions Act, John C. Yoo

Timeline Tags: Civil Liberties

Attorney General Michael Mukasey makes an apparent reference to the intercepts of the 9/11 hijackers’ calls by the NSA before the attacks in a speech pleading for extra surveillance powers. Mukasey says: “[Officials] shouldn’t need a warrant when somebody with a phone in Iraq picks up a phone and calls somebody in the United States because that’s the call that we may really want to know about. And before 9/11, that’s the call that we didn’t know about. We knew that there has been a call from someplace that was known to be a safe house in Afghanistan and we knew that it came to the United States. We didn’t know precisely where it went.” [FORA(.tv), 3/27/2008; New York Sun, 3/28/2008] According to a Justice Department response to a query about the speech, this appears to be a reference to the Yemen hub, an al-Qaeda communications facility previously alluded to by Mukasey in a similar context (see February 22, 2008). [Salon, 4/4/2008] However, the hub was in Yemen, not Afghanistan and, although it acted as a safe house, it was primarily a communications hub (see Early 2000-Summer 2001). In addition, the NSA did not intercept one call between it and the 9/11 hijackers in the US, but several, involving both Khalid Almihdhar and Nawaf Alhazmi, not just one of the hijackers (see Spring-Summer 2000, Mid-October 2000-Summer 2001, and (August 2001)). Nevertheless, the NSA failed to inform the FBI the hub was calling the US (see (Spring 2000)). (Note: it is possible Mukasey is not talking about the Yemen hub in this speech, but some other intercept genuinely from an al-Qaeda safe house in Afghanistan—for example a call between lead hijacker Mohamed Atta in the US and alleged 9/11 mastermind Khalid Shaikh Mohammed, who may have been in Afghanistan when such call was intercepted by the NSA (see Summer 2001 and September 10, 2001). However, several administration officials have made references similar to Mukasey’s about the Yemen hub since the NSA’s warrantless wiretapping program was revealed (see December 17, 2005).)

Entity Tags: Michael Mukasey

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

The American Civil Liberties Union (ACLU) secures an 81-page memo from March 14, 2003 that gave Pentagon officials legal justification to ignore laws banning torture (see March 14, 2003). The Justice Department memo was written by John Yoo, then a top official at the Office of Legal Counsel, on behalf of then-Pentagon General Counsel William J. Haynes. It guides Pentagon lawyers on how to handle the legal issues surrounding “military interrogations of alien unlawful combatants held outside the United States.” According to Yoo’s rationale, if a US interrogator injured “an enemy combatant” in a way that might be illegal, “he would be doing so in order to prevent further attacks on the United States by the al-Qaeda terrorist network.” That motive, Yoo opines, justifies extreme actions as national self-defense. While the existence of the memo has been known for some time, this is the first time the public has actually seen the document. This memo is similar to other Justice Department memos that define torture as treatment that “shock[s] the conscience” and risks organ failure or death for the victim. Legal scholars call the memo evidence of “the imperial presidency,” but Yoo, now a law professor at the University of California at Berkeley, says the memo is unremarkable, and is “far from inventing some novel interpretation of the Constitution.” The ACLU receives the document as the result of a Freedom of Information Act (FOIA) request from itself, the New York Civil Liberties Union, and other organizations filed in June 2004 to obtain documents concerning the treatment of prisoners kept abroad. The Yoo memo is one of the documents requested. [John C. Yoo, 3/14/2003 pdf file; United Press International, 4/2/2008; American Civil Liberties Union, 4/2/2008] According to the ACLU, the memo not only allows military officials to ignore torture prohibitions, but allows the president, as commander in chief, to bypass both the Fourth and Fifth Amendments (see April 2, 2008). [American Civil Liberties Union, 4/2/2008] The Fourth Amendment grants the right for citizens “to be secure in their persons” and to have “probable cause” shown before they are subjected to “searches and seizures.” The Fifth Amendment mandates that citizens cannot be “deprived of life, liberty, or property, without due process of law.” [Cornell University Law School, 8/19/2007] Amrit Singh, an ACLU attorney, says: “This memo makes a mockery of the Constitution and the rule of law. That it was issued by the Justice Department, whose job it is to uphold the law, makes it even more unconscionable.” [American Civil Liberties Union, 4/2/2008]

Entity Tags: William J. Haynes, Office of Legal Counsel (DOJ), New York Civil Liberties Union, Al-Qaeda, US Department of Justice, American Civil Liberties Union, John C. Yoo, Amrit Singh, US Department of Defense

Timeline Tags: Torture of US Captives, Civil Liberties

The American Civil Liberties Union (ACLU), fresh from obtaining the release of a 2003 Justice Department memo that justified torture for US military officials (see April 1, 2008), calls on the Bush administration to release a still-secret Justice Department memo from October 2001 that the 2003 memo used as legal justification to ignore the Fourth Amendment (see October 23, 2001). The Fourth Amendment protects against unlawful search and seizure. The 2001 memo claims that the “Fourth Amendment had no application to domestic military operations.” The ACLU believes that the Fourth Amendment justification “was almost certainly meant to provide a legal basis for the National Security Agency’s warrantless wiretapping program, which President Bush launched the same month the memo was issued” (see Shortly After September 11, 2001-October 2005), a claim the Justice Department denies. The NSA is part of the Defense Department. Jameel Jaffer, director of the ACLU’s National Security Project, says: “The recent disclosures underscore the Bush administration’s extraordinarily sweeping conception of executive power. The administration’s lawyers believe the president should be permitted to violate statutory law, to violate international treaties, and even to violate the Fourth Amendment inside the US. They believe that the president should be above the law.” No one has ever tried to assert, before this memo was written, that the Fourth Amendment was legally impotent for any reason or justification inside US borders. Jaffer notes that no court has ever ruled that the Fourth Amendment does not apply to the military: “In general, the government can’t send an FBI agent to search your home or listen to your phone calls without a warrant, and it can’t send a soldier to do it, either. The applicability of the Fourth Amendment doesn’t turn on what kind of uniform the government agent is wearing.” The ACLU has known about the October 2001 memo for several months, but until now has not known anything of its contents. In response to a 2007 Freedom of Information lawsuit, the Justice Department acknowledged the existence of “a 37-page memorandum, dated October 23, 2001, from a deputy assistant attorney general in OLC [Office of Legal Counsel], and a special counsel, OLC, to the counsel to the president, prepared in response to a request from the White House for OLC’s views concerning the legality of potential responses to terrorist activity.” The only information publicly known about the memo was that it was related to a request for information about the NSA’s warrantless wiretapping program. The ACLU has challenged the withholding of the October 2001 memo in court. [American Civil Liberties Union, 4/2/2008]

Entity Tags: US Department of Justice, American Civil Liberties Union, Bush administration (43), Jameel Jaffer, National Security Agency, US Department of Defense, Office of Legal Counsel (DOJ)

Timeline Tags: Civil Liberties

A group of congressmen led by House Judiciary Committee Chairman John Conyers (D-MI) asks for an explanation of a recent statement by Attorney General Michael Mukasey about a pre-9/11 NSA intercept of a call to the 9/11 hijackers in the US (see March 27, 2008 and March 29, 2008). The group calls Mukasey’s statement “disturbing” and says it “appears to suggest a fundamental misunderstanding of the federal government’s existing surveillance authority to combat terrorism, as well as possible malfeasance by the government prior to 9/11.” Mukasey had implied that the law prior to 9/11 did not allow the call to be traced, but the congressmen state: “[I]f the administration had known of such communications from suspected terrorists, they could and should have been intercepted based on existing FISA law.… [A]s of 9/11 FISA specifically authorized such surveillance on an emergency basis without a warrant for a 48 hour period.” They ask Mukasey to clarify his comments. The congressmen also ask about a secret Justice Department memo regarding the president’s powers in wartime in the US (see April 1, 2008). [Raw Story, 4/3/2008]

Entity Tags: John Conyers, Michael Mukasey

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

Attorneys for US soldiers charged with abuse at Iraq’s Abu Ghraib prison say they will use the recently released Justice Department torture memo (see March 14, 2003 and April 1, 2008) to show that the highest levels of government condoned the harsh interrogations and brutality used against prisoners in US detention facilities. The government argues that the brutal treatment meted out to detainees in Abu Ghraib was performed by low-ranking soldiers without military or government authorization. The Justice Department has already dropped 22 of 24 cases of detainee abuse against civilian employees and contractors referred by the CIA and Defense Department, and a US official says the torture memo’s legal arguments—interrogators are exempt from criminal liability—may have been part of the reason why those cases were dropped. A law enforcement official involved in the decisions says: “Could it conceivably have played a role in deciding whether to prosecute or not? Certainly, in theory. If there was a memo blessing behavior at a certain point in time, and someone relied on legal guidance, could they have formed the necessary intent” to break the law? Lawyer Charles Gittins, representing Army Private Charles Graner Jr. in Graner’s appeal of his convictions stemming from his abuse of prisoners at Abu Ghraib, says the memo seems to show that President Bush suspended maltreatment laws for the military during a time of war. Gittins will submit the document to Graner’s parole board when it meets in May. [Washington Post, 4/4/2008]

Entity Tags: Charles Gittins, Central Intelligence Agency, George W. Bush, US Department of Justice, US Department of Defense, Charles Graner

Timeline Tags: Torture of US Captives, Civil Liberties

Author and former civil litigator Glenn Greenwald writes that he is angered, but not particularly shocked, at the US mainstream media’s failure to provide in-depth, extensive coverage of the recently released 2003 torture memo (see March 14, 2003 and April 1, 2008) and another memo asserting that the Bush administration had declared the Fourth Amendment null and void in reference to “domestic military operations” inside the US (see April 2, 2008). Greenwald also notes the lack of coverage of a recent puzzling comment by Attorney General Michael Mukasey about 9/11 (see March 27, 2008). Instead, Greenwald notes, stories about the Democratic presidential campaign (including criticism over Barack Obama’s relationship with his former pastor, Jeremiah Wright, and Obama’s recent bowling scores) have dominated press coverage. According to a recent NEXIS search, these various topics have been mentioned in the media in the last thirty days:
bullet “Yoo and torture” (referring to John Yoo, the author of the two memos mentioned above)—102.
bullet “Mukasey and 9/11”—73.
bullet “Yoo and Fourth Amendment”—16.
bullet “Obama and bowling”—1,043.
bullet “Obama and Wright”—More than 3,000 (too many to be counted).
bullet “Obama and patriotism”—1,607.
bullet “Clinton and Lewinsky”—1,079. [Salon, 4/5/2008]
(For the record, on March 30, Obama went bowling in Pennsylvania during a campaign stop, in the company of Senator Bob Casey (D-PA). Newsmax is among the many media outlets that provided play-by-play coverage of Obama’s abysmal performance on the lanes—he scored a 37. The site reported that Obama lost “beautifully” and was “way out of his league.”) [NewsMax, 3/31/2008]
Media Attacks Obama's 'Elitism' - The Washington Post’s Howard Kurtz gives over much of his column to a discussion of Obama’s eating and bowling habits, making the argument, according to Greenwald, that Obama is “not a regular guy but an arrogant elitist.” Kurtz defends his argument by compiling a raft of “similar chatter about this from Karl Rove” and others. Bloomberg’s Margaret Carlson spent a week’s worth of columns calling Obama’s bowling his biggest mistake, a “real doozy.” MSNBC reported that Obama went bowling “with disastrous consequences.” Greenwald notes that the media “as always,” takes “their personality-based fixations from the right, who have been promoting the Obama is an arrogant, exotic, elitist freak narrative for some time.” In this vein, Time’s Joe Klein wrote of what he called Obama’s “patriotism problem,” saying that “this is a chronic disease among Democrats, who tend to talk more about what’s wrong with America than what’s right.” Greenwald notes, “He trotted it all out—the bowling, the lapel pin, Obama’s angry, America-hating wife, ‘his Islamic-sounding name.’” Greenwald calls the media fixation on Obama’s bowling and his apparent failure to be a “regular guy” another instance of their “self-referential narcissism—whatever they sputter about is what ‘the people’ care about, and therefore they must keep harping on it, because their chatter is proof of its importance. They don’t need Drudge to rule their world any longer because they are Matt Drudge now.” [Salon, 4/5/2008]

Entity Tags: Michael Mukasey, Matt Drudge, Richard (“Dick”) Cheney, MSNBC, Joe Klein, Barack Obama, Bob Casey, Jr, Bush administration (43), George W. Bush, Glenn Greenwald, Margaret Carlson, Jeremiah A. Wright Jr, Howard Kurtz, NewsMax

Timeline Tags: Torture of US Captives, Domestic Propaganda, 2008 Elections

Steven Bradbury, the head of the Justice Department’s Office of Legal Counsel (OLC), officially repudiates an OLC memo from seven years earlier claiming that the president has the unilateral authority to order military strikes or raids within the US (see October 23, 2001). “[C]aution should be exercised before relying in any respect” on the memo, Bradbury writes, and it “should not be treated as authoritative for any purpose.” The 2001 contention that the Fourth Amendment is, for all intents and purposes, irrelevant in the face of presidential authority “does not reflect the current views of this Office,” Bradbury writes. Another portion of that 2001 memo, the contention that the president can set aside First Amendment rights of free speech and freedom of the press (see October 23, 2001), are no longer operative, Bradbury writes. Much of Bradbury’s memo is an attempt to explain and justify the 2001 memo by recalling the period of anxiety and disarray after the 9/11 attacks. [US Department of Justice, 10/6/2008 pdf file; American Civil Liberties Union [PDF], 1/28/2009 pdf file] Yale law professor Jack Balkin will later note that the memo does not repudiate “any of the Bush administration’s specific policies regarding surveillance, detention, and interrogation.” [Jack Balkin, 3/3/2009]

Entity Tags: Office of Legal Counsel (DOJ), US Department of Justice, Bush administration (43), Steven Bradbury, Jack Balkin

Timeline Tags: Civil Liberties

President Barack Obama, in the same sweeping set of executive orders that mandates the closure of the Guantanamo Bay detention facility and orders the closure of the CIA’s secret prisons (see January 22, 2009), orders that the US no longer torture prisoners. And in a broad repudiation of Bush administration policies and legal arguments, Obama’s order nullifies every single legal order and opinion on interrogations issued by any lawyer in the executive branch—including the Department of Justice—since September 11, 2001 (see Shortly After September 11, 2001, Late September 2001, October 23, 2001, Late October 2001, November 6-10, 2001, January 9, 2002, January 25, 2002, and April 2002 and After). “Key components of the secret structure developed under Bush are being swept away,” the Washington Post reports. Obama orders that all interrogations conducted by the CIA and other US officials strictly follow the procedures outlined in the US Army Field Manual. Retired Admiral Dennis Blair, Obama’s nominee to become the director of national intelligence, says that the government may revise the Field Manual to include more coercive interrogation techniques; a commission will be appointed to determine if the Field Manual is adequate. Currently the Field Manual limits interrogators to 19 approved techniques, bans torture, and prohibits harsh questioning techniques in favor of using psychological approaches. “I can say without exception or equivocation that the United States will not torture,” Obama tells a group of listeners at the State Department. “The message that we are sending the world is that the United States intends to prosecute the ongoing struggle against violence and terrorism and we are going to do so vigilantly and we are going to do so effectively and we are going to do so in a manner that is consistent with our values and our ideals,” he adds. The US will now “observe core standards of conduct, not just when it’s easy, but also when it’s hard.” [Agence France-Presse, 1/22/2009; Los Angeles Times, 1/23/2009; Washington Post, 1/23/2009] Tom Malinowski of Human Rights Watch says that he is certain Obama will not secretly authorize torture. Malinowski says that while Obama might oversee some changes in the Field Manual, he says that Obama will not renege on his promise that detainees would not be tortured or treated inhumanely. [Financial Times, 1/22/2009]

Entity Tags: Human Rights Watch, US Department of Justice, Central Intelligence Agency, Barack Obama, Tom Malinowski, Dennis C. Blair

Timeline Tags: Torture of US Captives, Civil Liberties

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

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

Timeline Tags: Civil Liberties

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

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

Timeline Tags: Civil Liberties

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

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

Timeline Tags: Domestic Propaganda

Law professor John Yoo, who during his tenure at the Justice Department wrote memos defending torture and the right of the executive branch to conduct its business in secret (see March 1996, September 25, 2001, September 25, 2001, October 4, 2001, October 23, 2001, October 23, 2001, November 2, 2001, November 5, 2001, and November 6-10, 2001), co-authors an article for the far-right American Enterprise Institute that attacks the Obama administration for considering the idea of an executive order to require government contractors to disclose their political contributions (see April 20, 2011 and May 26, 2011). The article, by Yoo and lawyer David W. Marston, is entitled “Overruling Citizens United with Chicago-Style Politics,” a reference to some of the unsavory and often-illegal political machinations undertaken by Chicago Democrats. The article repeatedly compares the Obama administration to the Nixon administration’s attempts to “use the available federal machinery to screw [their] political enemies,” as Yoo and Marston quote from a 1971 Nixon White House memo. Yoo and Marston say that the Obama administration, in an effort to recoup its losses from the Citizens United decision (see January 21, 2010]), “is making an unprecedented assault on free speech” by considering the executive order and by pushing the DISCLOSE Act (see July 26-27, 2010). (Yoo and Marston claim that the DISCLOSE Act, if passed into law, “would have forced all those doing business with the government to give up their ability to participate in the political process, as is their right under the First Amendment, aside from just voting on Election Day.”) They write: “Under the guise of ‘transparency’ and ‘accountability,’ the order curtails constitutionally protected speech rights and opens the door for retaliation against those not supporting the administration politically,” and go on to observe that in their opinion, this “assault on free speech” (see January 21, 2010 and January 22, 2010) is being joined by “the media [and] defenders of free speech.” Yoo and Marston claim that the Founding Fathers intended for corporations and other entities to be able to involve themselves in politics entirely anonymously, citing the example of Alexander Hamilton, John Jay, and James Madison publishing the Federalist Papers under the nom de plume “Publius.” Indeed, Yoo and Marston write, “disclosure of political contributions may be a prelude to the thuggish suppression of political speech by harassment and intimidation,” and they cite the instances of boycotts, vandalism, and death threats against people in California who donated money in support of Proposition 8, which declared gay marriage illegal. “Mandated disclosure of financial support for a political viewpoint can become the springboard for lawless retaliation against citizens for holding unpopular views,” the authors write. “Disclosure” and “transparency,” the “wonder drugs du jour,” are already “being used to silence core First Amendment speech rights and to threaten America’s long protection of anonymous political speech,” they contend, and claim that “thugs” are attempting to use violence and intimidation to nullify the Citizens United decision, force the issuance of the Obama executive order, and push the Federal Election Commission (FEC) to expand disclosure requirements. Only allowing financial donors to remain secret, the authors say, protects their rights to free speech and political involvement. “[D]isclosure invites retaliation,” they argue; only secrecy can protect free speech. The authors even cite a case brought on behalf of the NAACP, in which the organization was allowed to keep its membership lists secret for fear of attacks on its members or their families by white supremacists. [American Enterprise Institute, 7/20/2011] Ian Millhiser, a legal expert for the liberal news Web site Think Progress, angrily rebuts Yoo and Marston’s claims. Millhiser, referencing Yoo’s opinions issued during his stint in the Bush administration, writes, “If there is anyone in the universe who should think twice before criticizing a government lawyer for enabling a president to break the law, it is John Yoo.” He goes on to criticize Yoo’s legal thinking in the article, noting that the Citizens United ruling held that “disclosure could be justified based on a governmental interest in ‘provid[ing] the electorate with information’ about the sources of election-related spending.” Millhiser writes: “President Obama’s proposed executive order provides the electorate with information about the sources of election-related spending. So Yoo’s entire argument can be rebutted in exactly two sentences.” After rebutting other portions of Yoo and Marston’s arguments, Millhiser concludes, “Yoo’s defense of corporate America’s power to secretly buy elections is weak even by his own tragically incompetent standards.” [Think Progress, 7/22/2011]

Entity Tags: Ian Millhiser, American Enterprise Institute, DISCLOSE Act of 2010, Federal Election Commission, Nixon administration, US Department of Justice, John C. Yoo, David W. Marston, Obama administration

Timeline Tags: Civil Liberties

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