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Context of 'October 2, 2007: Goldsmith Testifies that Bush Sent White House Aides to Pressure Ashcroft'

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Newsweek reveals the existence of the January 9, 2002 draft memo written by Justice Department lawyers John Yoo and Robert Delahunty (see January 9, 2002). [Newsweek, 5/21/2004]

Entity Tags: Robert J. Delahunty, John C. Yoo

Timeline Tags: Torture of US Captives, Civil Liberties

David Ottaway.David Ottaway. [Source: AAAS.org]According to the Oregon branch of the Islamic charitable organization the Al-Haramain Islamic Foundation, Washington Post reporter David Ottaway receives a classified document that is evidence of illegal surveillance by the National Security Agency. The document shows that the NSA illegally intercepted telephone conversations and e-mails between Al Haramain officials in Oregon and Washington, DC. The document, dated May 24, 2004 and marked “Top Secret,” is accidentally provided to Al Haramain by Treasury Department officials that same month; Al Haramain quickly turns the document over to Ottoway, who is researching Islamic groups and individuals labeled as terrorists by the US government and are attempting to prove their innocence. Instead of reporting on the document, Ottaway will return it to the FBI when that organization demands it back in November 2004. In February 2006, Al Haramain will sue the Bush administration for illegally spying on it (see February 28, 2006) as part of its warrantless wiretapping program (see After September 11, 2001 and December 15, 2005). The Treasury Department has been investigating the charitable organization for possible ties to terrorism, and designated the group as a terrorist organization. The FBI will approach the organization and then Ottaway himself, demanding that all copies of the document be returned and threatening them with prosecution if the contents are revealed. Ottaway will consult with Post editors and lawyers, who will conclude, according to Ottaway, “that it was not relevant to what I was working on at the time.” Post executive editor Leonard Downie, Jr., will defend the decision, saying, “At the time we had this document, it was before we had any knowledge of the eavesdropping program. Without that knowledge, the document provided no useful information. At the time, all we knew was that this document was not relevant to David’s reporting.” [Washington Post, 3/3/2006]

Entity Tags: US Department of the Treasury, Washington Post, Leonard Downie, Jr., Al Haramain Islamic Foundation (Oregon branch), Bush administration (43), National Security Agency, David Ottaway, Federal Bureau of Investigation

Timeline Tags: Civil Liberties, Domestic Propaganda

The Washington Post reveals the existence of a secret August 2002 memo from the Justice Department. This memo advised the White House that torturing al-Qaeda terrorists in captivity “may be justified,” and that international laws against torture “may be unconstitutional if applied to interrogations” conducted in the US war on terrorism (see August 1, 2002). The legal reasoning was later used in a March 2003 report by Pentagon lawyers assessing interrogation rules governing the military detention center at Guantanamo Bay (see March 6, 2003). Bush officials say that despite the memo, it has abided by the Geneva Conventions and other international treaties proscribing torture (see February 7, 2002). The incidents at Abu Ghraib, where numerous Iraqi prisoners were tortured, maimed, and sometimes murdered, were not policy, officials say. Human rights organizations and civil libertarians are appalled at the memo. “It is by leaps and bounds the worst thing I’ve seen since this whole Abu Ghraib scandal broke,” says Tom Malinowski of Human Rights Watch. “It appears that what they were contemplating was the commission of war crimes and looking for ways to avoid legal accountability. The effect is to throw out years of military doctrine and standards on interrogations.” A senior Pentagon official says that the Judge Advocate Generals (JAGs) were quick to challenge the Justice Department opinion when it was promoted by the Pentagon. “Every flag JAG lodged complaints,” the official says. A senior military attorney says of the memo: “It’s really unprecedented. For almost 30 years we’ve taught the Geneva Convention one way. Once you start telling people it’s okay to break the law, there’s no telling where they might stop.” [Washington Post, 6/8/2004] Attorney General John Ashcroft tells the Senate Judiciary Committee that he will not discuss the contents of the August 2002 memo, nor turn it over to the committee. “I believe it is essential to the operation of the executive branch that the president has the opportunity to get information from the attorney general that is confidential,” he says. [Washington Post, 6/8/2004]

Entity Tags: Senate Judiciary Committee, Bush administration (43), Geneva Conventions, John Ashcroft, Tom Malinowski, US Department of Justice, Judge Advocate General Corps, US Department of Defense

Timeline Tags: Torture of US Captives, Civil Liberties

During the annual G-8 economic summit, held in Sea Island, Georgia [2004 G8 Summit, 2004] , President Bush rejects the notion that he approved the use of torture. “The authorization I gave,” the president says, “was that all we did should be in accordance with American law and consistent with our international treaty obligations. That’s the message I gave our people.” He adds, “What I authorized was that we stay within the framework of American law.” And to emphasize his point, he says: “Listen, I’ll say it one more time.… The instructions that were given were to comply with the law. That should reassure you. We are a nation of laws. We follow the law. We have laws on our books. You could go look at those laws and that should reassure you.” [US President, 6/21/2004] During the summit, the foreign ministers of the participating countries are suddenly called to Washington to meet with Bush and Secretary of State Colin Powell. As Canadian Foreign Minister Bill Graham will later recall: “Colin suddenly phoned us all up and said, ‘We’re going to the White House this morning.’ Now, this is curious, because normally the heads of government don’t give a damn about foreign ministers. We all popped in a bus and went over and were cordially received by Colin and President Bush. The president sat down to explain that, you know, this terrible news had come out about Abu Ghraib and how disgusting it was. The thrust of his presentation was that this was a terrible aberration; it was un-American conduct. This was not American. [German Foreign Minister] Joschka Fischer was one of the people that said, ‘Mr. President, if the atmosphere at the top is such that it encourages or allows people to believe that they can behave this way, this is going to be a consequence.’ The president’s reaction was: ‘This is un-American. Americans don’t do this. People will realize Americans don’t do this.’ The problem for the United States, and indeed for the free world, is that because of this—Guantanamo, and the ‘torture memos’ from the White House (see November 6-10, 2001 and August 1, 2002), which we were unaware of at that time—people around the world don’t believe that anymore. They say, ‘No, Americans are capable of doing such things and have done them, all the while hypocritically criticizing the human-rights records of others.’” [Vanity Fair, 2/2009]

Entity Tags: Bill Graham, George W. Bush, Colin Powell, Joschka Fischer

Timeline Tags: Torture of US Captives, Civil Liberties

The 9/11 Commission releases a new report on how the 9/11 plot developed. Most of their information appears to come from interrogations of prisoners Khalid Shaikh Mohammed (KSM), the 9/11 mastermind, and Ramzi bin al-Shibh, a key member of the al-Qaeda Hamburg cell. In this account, the idea for the attacks appears to have originated with KSM. In mid-1996, he met bin Laden and al-Qaeda leader Mohammed Atef in Afghanistan. He presented several ideas for attacking the US, including a version of the 9/11 plot using ten planes (presumably an update of Operation Bojinka’s second phase plot (see February-Early May 1995)). Bin Laden does not commit himself. In 1999, bin Laden approves a scaled-back version of the idea, and provides four operatives to carry it out: Nawaf Alhazmi, Khalid Almihdhar, Khallad bin Attash, and Abu Bara al Taizi. Attash and al Taizi drop out when they fail to get US visas. Alhazmi and Almihdhar prove to be incompetent pilots, but the recruitment of Mohamed Atta and the others in the Hamburg al-Qaeda cell solves that problem. Bin Laden wants the attacks to take place between May and July 2001, but the attacks are ultimately delayed until September. [9/11 Commission, 6/16/2004] However, information such as these accounts resulting from prisoner interrogations is seriously doubted by some experts, because it appears they only began cooperating after being coerced or tortured. For instance, it is said that KSM was “waterboarded,” a technique in which his head is pushed under water until he nearly drowns. Information gained under such duress often is unreliable. Additionally, there is a serious risk that the prisoners might try to intentionally deceive. [New York Times, 6/17/2004] For instance, one CIA report of his interrogations is called, “Khalid Shaikh Mohammed’s Threat Reporting—Precious Truths, Surrounded by a Bodyguard of Lies.” [Los Angeles Times, 6/23/2004] The Commission itself expresses worry that KSM could be trying to exaggerate the role of bin Laden in the plot to boost bin Laden’s reputation in the Muslim world. [9/11 Commission, 6/16/2004] Most of what these prisoners have said is uncorroborated from other sources. [New York Times, 6/17/2004] In 2007, it will be alleged that as much as 90 percent of KSM’s interrogation could be inaccurate, and that he has recanted some of his confessions (see August 6, 2007).

Entity Tags: Osama bin Laden, 9/11 Commission, Ramzi bin al-Shibh, Khalid Shaikh Mohammed

Timeline Tags: Torture of US Captives, Complete 911 Timeline, 9/11 Timeline

Jack Goldsmith, once considered a rising star in the Bush administration (see October 6, 2003), resigns under fire from his position as chief of the Justice Department’s Office of Legal Counsel (OLC). In his nine-month tenure, Goldsmith fought against the administration’s warrantless wiretapping program, its advocacy of torture, and its policy of extrajudicial detention and trial for terror suspects. Goldsmith will not discuss his objections to the administration’s policy initiatives until September 2007, when he will give interviews to a variety of media sources in anticipation of the publication of his book, The Terror Presidency. Goldsmith led a small, in-house revolt of administration lawyers against what they considered to be the constitutional excesses of the legal policies advocated by the administration in its war on terrorism. “I was disgusted with the whole process and fed up and exhausted,” he will recall. Goldsmith chooses to remain quiet about his resignation, and as a result, his silence will be widely misinterpreted by media, legal, and administration observers. Some even feel that Goldsmith should be investigated for his supposed role in drafting the torture memos (see January 9, 2002, August 1, 2002, and December 2003-June 2004) that he had actually opposed. “It was a nightmare,” Goldsmith will recall. “I didn’t say anything to defend myself, except that I didn’t do the things I was accused of.” [New York Times Magazine, 9/9/2007] Goldsmith will not leave until the end of July, and will take a position with the Harvard University Law School. Unlike many other Justice Department officials, he will not be offered a federal judgeship, having crossed swords with White House lawyers too many times. [Savage, 2007, pp. 191]

Entity Tags: US Department of Justice, Office of Legal Counsel (DOJ), Jack Goldsmith

Timeline Tags: Civil Liberties

Juan Jesus Sanchez Manzano.Juan Jesus Sanchez Manzano. [Source: PBS]It is revealed that the man accused of supplying the dynamite used in the March 2004 Madrid train bombings (see 7:37-7:42 a.m., March 11, 2004) was an informant who had the private telephone number of the head of Spain’s Civil Guard bomb squad. Emilio Suarez Trashorras, a miner with access to explosives, as well as an associate named Rafa Zouhier both regularly informed for the Spanish police, telling them about drug shipments. [New York Times, 4/30/2004; London Times, 6/19/2004] Trashorras began working as an informant after being arrested for drug trafficking in July 2001, while Zouhier became an informant after being released from prison early in February 2002. [Irujo, 2005, pp. 277-288] Shortly after the Madrid bombings, investigators discover that Trashorras’ wife Carmen Toro has a piece of paper with the telephone number of Juan Jesus Sanchez Manzano, head of Tedax, the Civil Guard bomb squad. She and her brother Antonio Toro are also informants (September 2003-February 2004). All four of them were arrested on charges of supplying the explosives for the Madrid bombings (see March 2003 and September 2003-February 2004). [New York Times, 4/30/2004; London Times, 6/19/2004] The London Times later comments, “The revelation has raised fresh concerns in Madrid about links between those held responsible for the March bombings, which killed 190 people, and Spain’s security services, and shortcomings in the police investigation.” [London Times, 6/19/2004] Trashorras will eventually be sentenced to life in prison for his role in the bombings, Zouhier will also get a ten or more year prison term, and the Toros will be acquitted (see October 31, 2007). [MSNBC, 10/31/2007]

Entity Tags: Rafa Zouhier, Juan Jesus Sanchez Manzano, Carmen Toro, Antonio Toro, Emilio Suarez Trashorras

Timeline Tags: Complete 911 Timeline

Aides to President Bush, including Alberto Gonzales, publicly renounce the internal memo of August 1, 2002 (see August 1, 2002) that outlined a legal opinion by the Justice Department’s Office of Legal Counsel (OLC). They say it created the false impression that the US government was claiming the right to authorize interrogation techniques in violation of international law. Gonzales agrees that some of its conclusions were “controversial” and “subject to misinterpretation.” [Washington Post, 6/23/2004] The White House announces that all legal advice rendered by the OLC on interrogations will be reviewed and that sections of the August memo will be rewritten. Gonzales says the section in the memo arguing that the president, as Commander-in-Chief, is not bound by anti-torture laws is “unnecessary.” Justice Department officials also say the section will be scrapped. [Washington Post, 6/27/2004] In his introductory statement, however, Gonzales describes the circumstances under which the memo had come about: “We face an enemy that lies in the shadows, an enemy that doesn’t sign treaties, they don’t wear uniforms, an enemy that owes no allegiance to any country, they do not cherish life. An enemy that doesn’t fight, attack, or plan according to accepted laws of war, in particular Geneva Conventions.” [Washington File, 6/23/2004] Gonzales claims that giving these people a protected status under the Geneva Conventions would be tantamount to rewarding the terrorists’ lawlessness. “[T]o protect terrorists when they ignore the law is to give incentive to continued ignoring that law,” he says. [Washington File, 6/23/2004] Gonzales says he thinks that Bush never actually saw the August 2002 memo: “I don’t believe the president had access to any legal opinions from the Department of Justice.” [New York Times, 6/24/2004]

Entity Tags: George W. Bush, Alberto R. Gonzales

Timeline Tags: Torture of US Captives, Civil Liberties

David Hicks.David Hicks. [Source: Associated Press]In the case of Rasul v. Bush, involving Guantanamo detainees Shafiq Rasul, Mamdouh Habib, David Hicks, and Asif Iqbal, the Supreme Court holds in a 6-3 ruling that the US exercises “complete jurisdiction and control” over Guantanamo Bay, and thus, that the Guantanamo prisoners have the right to challenge their detentions before a judge. Under the habeas corpus statute, Justice John Paul Stevens writes for the majority that “aliens held at the base, no less than American citizens, are entitled to invoke the federal courts’ authority.” [Supreme Court opinion on writ of certiorari. Shafiq Rasul, et al. v. George W. Bush, et al., 6/28/2004] It is unclear whether the court’s ruling is intended to extend to detainees held in other parts of the world, but given the court’s reasoning, it appears that decision applies to detainees both in Guantanamo and elsewhere. [New York Times, 6/29/2004]
Conservative Dissent - The three dissenting justices are conservatives William Rehnquist, Antonin Scalia, and Clarence Thomas. Scalia says the decision is “an irresponsible overturning of settled law in a matter of extreme importance to our forces currently in the field.” He acknowledges that the location of Guantanamo has in fact been intended to keep detainees outside of the reach of the judiciary. “Today, the court springs a trap on the executive, subjecting Guantanamo Bay to the oversight of federal courts even though it has never before been thought to be within their jurisdiction, and thus making it a foolish place to have housed alien wartime detainees,” Scalia writes. Stevens writes that it does not matter what status the Guantanamo inmates have regarding the question of whether they should have access to a US court. “What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.” And this, he writes, they do. The case is subsequently sent back to a lower court to consider the prisoners’ claims. [Guardian, 6/28/2004]
Side-Stepping the Ruling - The media characterizes the decision as a rebuke for the Bush administration, which had argued that the courts have no right to interfere in the commander in chief’s decisions involving wartime policies. However, the decision says nothing about what rights the detainees might have once they get inside a courtroom, and therefore actually places little real restraint on the government. White House officials will decide that the detainees have no rights in the courtroom whatsoever—although the Court has ruled that they can file lawsuits, those lawsuits must be dismissed out of hand because the detainees have no right to actually present a case. The Republican-led Congress will later pass a law stripping courts of jurisdiction over Guantanamo lawsuits. [Savage, 2007, pp. 192]

Entity Tags: William Rehnquist, Shafiq Rasul, Mamdouh Habib, Antonin Scalia, David Hicks, Asif Iqbal, John Paul Stevens, Clarence Thomas

Timeline Tags: Torture of US Captives, Civil Liberties

Navy General Counsel Alberto J. Mora writes a secret, but unclassified, memo to Vice Admiral Albert Church, who led a Pentagon investigation into abuses at the US detention facility at Guantanamo Bay. Mora writes the memo in an attempt to stop what he sees as a disastrous and unlawful policy of authorizing cruel and inhuman treatment of terror suspects. The memo details in chronological fashion Mora’s earlier attempts to speak out against the Bush administration’s decision to circumvent the Geneva Conventions (see January 9, 2002 and January 11, 2002).
Specific Problems - Mora, a veteran of the Reagan and George H. W. Bush administrations and a strong supporter of the “war on terror,” argues that a refusal to outlaw cruelty toward US-held terrorist suspects is an implicit invitation to abuse. Mora also writes that the Bush administration’s legal arguments that justify an expansion of executive power in everything from interrogations to warrantless wiretapping are “unlawful,” “dangerous,” and “erroneous” legal theories. Not only are they wrong in granting President Bush the right to authorize torture, he warns that they may leave US personnel open to criminal prosecution. While the administration has argued that it holds to humane, legal standards in interrogation practices (see January 12, 2006), Mora’s memo shows that from the outset of the administration’s “war on terror,” the White House, the Justice Department, and the Defense Department intentionally skirted and at times ignored domestic and international laws surrounding interrogation and detention of prisoners.
Cruelty and Torture - Mora will later recall the mood in the Pentagon: “The mentality was that we lost three thousand Americans [on 9/11], and we could lose a lot more unless something was done. It was believed that some of the Guantanamo detainees had knowledge of other 9/11-like operations that were under way, or would be executed in the future. The gloves had to come off. The US had to get tougher.” But, Mora will say, the authorization of cruel treatment of detainees is as pernicious as any defined torture techniques that have been used. “To my mind, there’s no moral or practical distinction,” he says. “If cruelty is no longer declared unlawful, but instead is applied as a matter of policy, it alters the fundamental relationship of man to government. It destroys the whole notion of individual rights. The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty. It applies to all human beings, not just in America—even those designated as ‘unlawful enemy combatants.’ If you make this exception, the whole Constitution crumbles. It’s a transformative issue.… The debate here isn’t only how to protect the country. It’s how to protect our values.” [Mora, 7/7/2004 pdf file; New Yorker, 2/27/2006]

Entity Tags: Geneva Conventions, Richard (“Dick”) Cheney, US Department of Defense, Alberto Mora, Albert T. Church III, US Department of Justice, Bush administration (43)

Timeline Tags: Torture of US Captives, Civil Liberties

Deforest B. Soaries Jr.Deforest B. Soaries Jr. [Source: MSNBC]On July 6, John Kerry named John Edwards as his running mate. [Rolling Stone, 9/21/2006 pdf file] This produced a slight increase in the opinion polls and a media focus on the Kerry campaign. [MSNBC, 6/4/2007] Two days later, Homeland Security Secretary Tom Ridge warns that “Al-Qaeda is moving forward with its plans to carry out a large-scale attack in the United States in an effort to disrupt our democratic process.” [Department of Homeland Security, 7/8/2004] Officials cite “alarming” intelligence about a possible al-Qaeda strike inside the United States this fall and admit they are reviewing a proposal that could allow for the postponement of the November presidential election in the event of an attack. Officials point to the recent Madrid train bombings as an attempt by al-Qaeda to influence the political process in a democratic nation (see 7:37-7:42 a.m., March 11, 2004). Intercepted chatter leads one analyst to say, “they want to interfere with the elections.” It is reported that the Department of Homeland Security (DHS) recently asked the Justice Department’s Office of Legal Counsel to analyze the necessary legal steps that would permit the postponement of the election were an attack to take place. [Newsweek, 7/19/2004] The head of the US Election Assistance Commission, Deforest B. Soaries Jr., confirms he has written to Tom Ridge to discuss this prospect. [MSNBC, 6/4/2007] Soaries notes that, while a primary election in New York on September 11, 2001 was suspended by the State Board of Elections after the attacks, “the federal government has no agency that has the statutory authority to cancel and reschedule a federal election.” Soaries advises Ridge to seek emergency legislation from Congress that would grant such power to the DHS. DHS spokesman Brian Roehrkasse says, “We are reviewing the issue to determine what steps need to be taken to secure the election.” [Newsweek, 7/19/2004] A top European spy says of the threat, “I am aware of no intelligence, nothing that shows there will be an attack before the US presidential election.” No attack will materialize and no further information on the threat will be presented to the public. [Rolling Stone, 9/21/2006 pdf file] Ridge will later concede that he had no “precise knowledge” of the attack he warned against, and he never made plans to raise the color-coded threat level. [Rich, 2006, pp. 146]

Entity Tags: US Election Assistance Commission, Deforest B. Soaries Jr., John Edwards, John Kerry, Tom Ridge, Brian Roehrkasse

Timeline Tags: Complete 911 Timeline, 2004 Elections

Former White House counsel John Dean examines the idea that the government may postpone the presidential elections in the light of an alleged terror threat (see July 8, 2004), and finds it wanting. Dean notes that the idea of postponing the elections is bogus: “There is no such proposal. In fact, it is not legally possible because there are no laws giving the president, or anyone else, such authority.” A Homeland Security spokesperson has said, “DHS is not looking into a contingency plan,” and National Security Adviser Condoleezza Rice has said, “I don’t know where the idea that there might be some postponement of elections comes from.” As others have noted, Rice pointed out that even during the Civil War, then-President Abraham Lincoln refused to consider the idea of postponing the 1864 elections. Christopher Cox (R-CA), the chairman of the House Homeland Security Committee, said flatly: “Were we to postpone the elections, it would represent a victory for the terrorists.… The election is going to go forward.” Dean writes “that the Bush administration has completely disregarded the need to protect the workings of our electoral process, which is highly susceptible to terror attacks,” noting that large-scale, well-timed terror strikes could catastrophically disrupt the election process. [FindLaw, 7/26/2004] Author and media critic Frank Rich is more prosaic, writing in 2006 that both the terror alerts and the vague threats to consider suspending the elections are merely attempts to frighten and cow the American citizenry. [Rich, 2006, pp. 146]

Entity Tags: US Department of Homeland Security, House Homeland Security Committee, Condoleezza Rice, Christopher Cox, Frank Rich, John Dean

Timeline Tags: 2004 Elections

George Fay.George Fay. [Source: US Army]Generals George Fay and Anthony R. Jones release a final report describing the findings of their combined investigation of the abuses committed by US soldiers against detainees being held at Abu Ghraib. The investigation was initially ordered by Lt. Gen. Ricardo S. Sanchez, commander of CJTF-7, who charged Fay with determining whether the 205th Military Intelligence Brigade “requested, encouraged, condoned, or solicited Military Police (MP) personnel to abuse detainees and whether MI [military intelligence] personnel comported with established interrogation procedures and applicable laws and regulations.” Lt. Gen. Anthony R. Jones joined the investigation in June and was instructed to determine if “organizations or personnel higher” than the 205th Military Intelligence Brigade chain of command were involved in the Abu Ghraib abuses. [US Department of the Army, 3/9/2004] The report provides detailed descriptions of 44 separate incidents of abuse perpetrated by US soldiers against Abu Ghraib detainees beginning in September 2003. The abuses described include acts of sodomy, beatings, nudity, lengthy isolation, and the use of unmuzzled dogs aimed at making detainees urinate and defecate in fear. “The abuses spanned from direct physical assault, such as delivering head blows rendering detainees unconscious, to sexual posing and forced participation in group masturbation,” the authors say in the report. “At the extremes were the death of a detainee… an alleged rape committed by a US translator and observed by a female soldier, and the alleged sexual assault of an unknown female.” [Washington Post, 8/26/2005] Parts of the report are classified because, according to Army officials, they include references to secret policy memos. But when these classified sections are leaked to the New York Times by a senior Pentagon official, they do not appear to contain any sensitive material about interrogation methods or details of official memos. Instead, the secret passages demonstrate how interrogation practices from Afghanistan and Guantanamo were introduced to Abu Ghraib and how Sanchez played a major part in that process. [New York Times, 8/27/2004] Though the report lays most of the blame on MPs and a small group of military intelligence, civilian, and CIA interrogators, it does recommend disciplinary action for Col. Thomas M. Pappas and Lt. Col. Steven L. Jordan. “The primary causes are misconduct (ranging from inhumane to sadistic) by a small group of morally corrupt soldiers and civilians, a lack of discipline on the part of the leaders and soldiers of the 205 MI BDE [Military Intelligence Brigade] and a failure or lack of leadership by multiple echelons within CJTF-7.” Lt. Gen. Sanchez, the commander of Combined Joined Task Force (CJTF) 7, though mildly criticized, is still praised in the report as having performed “above expectations.” [US Department of the Army, 3/9/2004; Washington Post, 8/26/2005] Jones portrays the abuse as being only coincidentally linked to interrogations. “Most, though not all, of the violent or sexual abuses occurred separately from scheduled interrogations and did not focus on persons held for intelligence purposes.” Gen. Fay on the other hand writes that the majority of the victims of abuse were military intelligence holds, and thus held for intelligence purposes. In addition, he concludes that “confusion and misunderstanding between MPs and MI [military intelligence]” also contributed to acts of abuse. Military intelligence personnel ordered MPs to implement the tactic of “sleep adjustment.” “The MPs used their own judgment as to how to keep them awake. Those techniques included taking the detainees out of their cells, stripping them, and giving them cold showers. Cpt. [Carolyn A.] Wood stated she did not know this was going on and thought the detainees were being kept awake by the MPs banging on the cell doors, yelling, and playing loud music.” [US Department of Defense, 8/23/2004 pdf file]
Conclusions -
bullet Nearly 50 people were involved in the 44 incidents of abuse listed in the report: 27 military intelligence soldiers, 10 military police officers, four civilian contractors, and a number of other intelligence and medical personnel who failed to report the abuse. [Washington Post, 8/26/2005; Washington Post, 8/26/2005] Military intelligence soldiers were found to have requested or encouraged 16 of the 44 incidents. [Washington Post, 8/26/2005; Washington Post, 8/26/2005]
bullet The incidents of abuse included torture. “Torture sometimes is used to define something in order to get information,” Fay tells reporters. “There were very few instances where in fact you could say that was torture. It’s a harsh word, and in some instances, unfortunately, I think it was appropriate here. There were a few instances when torture was being used.” [Washington Post, 8/26/2005]
bullet Lt. Gen. Ricardo Sanchez and his staff “contributed indirectly to the questionable activities regarding alleged detainee abuse at Abu Ghraib” and failed “to ensure proper staff oversight of detention and interrogation operations.” [US Department of the Army, 3/9/2004; Washington Post, 8/26/2005] For example, Sanchez endorsed the use of stress positions, nudity, and military working dogs (see October 12, 2003), even though they had not been approved by Rumsfeld. [Washington Post, 8/26/2005] In spite of this, the executive summary of the report asserts that “the CJTF-7 Commander and staff performed above expectations… .” [US Department of the Army, 3/9/2004; Washington Post, 8/26/2005]
bullet Senior officers in Iraq failed to provide “clear, consistent guidance” for handling detainees. [US Department of the Army, 3/9/2004; Washington Post, 8/26/2005]
bullet There is no evidence that policy or instructions provided by senior US authorities sanctioned the types of abuses that occurred at Abu Ghraib. [Washington Post, 8/26/2005; Washington Post, 8/26/2005]
bullet CIA officials in the prison hid “ghost detainees” from human rights groups in violation of international law. [Washington Post, 8/26/2005]

Entity Tags: Steven L. Jordan, Ricardo S. Sanchez, George R. Fay, Anthony R. Jones, Thomas M. Pappas, Carolyn A. Wood

Timeline Tags: Torture of US Captives

The New York Times agrees to a White House request to withhold publication of a potential “bombshell” story: an in-depth article revealing an enormous, and possibly illegal, warrantless wiretapping program executed by the NSA at President Bush’s behest after the 9/11 attacks. The Times will publish the story almost a year later (see December 15, 2005). In August 2006, the Times’s public editor, Byron Calame, will confirm the delay, and note that he has been “increasingly intrigued” by the various descriptions of the delay by Times editor Bill Keller (see December 16, 2005) and others. Keller will tell Calame that, contrary to some statements he and others have made, the story was originally scheduled to be published just days before the November 2004 presidential election. “The climactic discussion about whether to publish was right on the eve of the election,” Keller will say, though he will refuse to explain why he makes the final decision to hold the story. However, he will say that at this time he is not sure the story’s sources are reliable enough to warrant its publication before a close election. [New York Times, 8/13/2006]

Entity Tags: Bush administration (43), Bill Keller, New York Times, Byron Calame, National Security Agency

Timeline Tags: Civil Liberties

Theo van Gogh.Theo van Gogh. [Source: Column Film]Dutch filmmaker Theo van Gogh is killed by al-Qaeda linked figures. He is shot while on the streets of Amsterdam, then his throat is slit and a note is pinned to his chest with a knife. Van Gogh had received death threats after the release of his short film Submission, which criticized the mistreatment of Muslim women. A Dutch Moroccan named Mohammed Bouyeri is soon captured after a shootout with police. He is later sentenced to life in prison for van Gogh’s murder. About 13 other mostly North African men are linked to Bouyeri, and most of them are later convicted for various crimes. This group is said to have ties to al-Qaeda cells in Spain and Belgium, and links to bombings in Casablanca and Madrid (see May 16, 2003 and 7:37-7:42 a.m., March 11, 2004). [PBS Frontline, 1/25/2005]

Entity Tags: Mohammed Bouyeri, Theo van Gogh

Timeline Tags: Complete 911 Timeline

Salim Ahmed Hamdan.Salim Ahmed Hamdan. [Source: Public domain]US District Judge James Robertson rules that the Combatant Status Review Tribunal being held at the Guantanamo base in Cuba to determine the status of detainee Salim Ahmed Hamdan is unlawful and cannot continue. At the time of the decision, Hamdan is before the Guantanamo military commission. [Washington Post, 11/9/2004; USA Today, 11/9/2004] The commission system, as set up by White House lawyers David Addington and Timothy Flanigan three years before (see Late October 2001), gives accused terrorists such as Hamdan virtually no rights; in author and reporter Charlie Savage’s words, “the [Bush] administration had crafted rules that would make it easy for prosecutors to win cases.” [Savage, 2007, pp. 195-196]
Violation of Geneva Conventions - Robertson, in his 45-page opinion, says the government should have conducted special hearings to determine whether detainees qualified for prisoner-of-war protections under the Geneva Conventions at the time of capture. [USA Today, 11/9/2004] He says that the Bush administration violated the Geneva Conventions when it designated prisoners as enemy combatants, denied them POW protections, and sent them to Guantanamo. [Boston Globe, 11/9/2004] The Combatant Status Review Tribunals that are currently being held in response to a recent Supreme Court decision (see June 28, 2004) are inadequate, Robertson says, because their purpose is to determine whether detainees are enemy combatants, not POWs, as required by the Third Geneva Convention. [USA Today, 11/9/2004]
Rejects Claims of Presidential Power - Robertson also rejects the administration’s claim that the courts must defer to the president in a time of war. “The president is not a ‘tribunal,’” the judge says. [USA Today, 11/9/2004] Robertson, a Clinton appointee, thus squarely opposes both the president’s military order of November 13, 2001 (see November 13, 2001) establishing the possibility of trial by military tribunal, and his executive order of February 7, 2002 (see February 7, 2002) declaring that the Geneva Conventions do not to apply to Taliban and al-Qaeda prisoners. “The government has asserted a position starkly different from the positions and behavior of the United States in previous conflicts,” Robertson writes, “one that can only weaken the United States’ own ability to demand application of the Geneva Conventions to Americans captured during armed conflicts abroad.” [USA Today, 11/9/2004; Washington Post, 11/9/2004; Boston Globe, 11/9/2004]
Orders Military Courts-Martial - Robertson orders that until the government conducts a hearing for Hamdan before a competent tribunal in accordance with the Third Geneva Conventions, he can only be tried in courts-martial, according to the same long-established military rules that apply to trials for US soldiers. [Washington Post, 11/9/2004; Boston Globe, 11/9/2004] Robertson’s ruling is the first by a federal judge to assert that the commissions are illegal. [Washington Post, 11/9/2004]
Hearings Immediately Recessed - When word of Robertson’s ruling comes to Guantanamo, Colonel Peter Brownback, presiding over a pretrial hearing for Hamdan, immediately gavels the hearing closed, declaring an “indefinite recess” for the tribunal. [Savage, 2007, pp. 195-196]
Ruling Applauded by Civil Libertarians, Rejected by Bush Lawyers - Anthony Romero, director of the American Civil Liberties Union; Eugene Fidell, president of the National Institute of Military Justice; and Michael Ratner, president of the Center for Constitutional Rights, all applaud Robertson’s ruling. [Boston Globe, 11/9/2004] The Bush administration rejects the court’s ruling and announces its intention to submit a request to a higher court for an emergency stay and reversal of the decision. “We vigorously disagree.… The judge has put terrorism on the same legal footing as legitimate methods of waging war,” Justice Department spokesman Mark Corallo says. “The Constitution entrusts to the president the responsibility to safeguard the nation’s security. The Department of Justice will continue to defend the president’s ability and authority under the Constitution to fulfill that duty.” [Washington Post, 11/9/2004; Boston Globe, 11/9/2004] He also says that the commission rules were “carefully crafted to protect America from terrorists while affording those charged with violations of the laws of war with fair process.” [Boston Globe, 11/9/2004]
Ruling May Affect Other Detainees - Though the ruling technically only applies to Hamdan, his civilian attorney, Neal Katyal, says it could affect other detainees. “The judge’s order is designed only to deal with Mr. Hamdan’s case,” Katyal says. “But the spirit of it… extends more broadly to potentially everything that is going on here at Guantanamo.” [USA Today, 11/9/2004]

Entity Tags: Mark Corallo, Neal Katyal, James Robertson, George W. Bush, Anthony D. Romero, Peter Brownback, Charlie Savage, US Supreme Court, American Civil Liberties Union, Salim Ahmed Hamdan

Timeline Tags: Torture of US Captives, Civil Liberties

President Bush names White House counsel and close personal friend Alberto Gonzales to succeed John Ashcroft as the new attorney general. Ashcroft submitted a letter of resignation on November 2. [Bloomberg, 11/10/2004]

Entity Tags: George W. Bush, John Ashcroft, Alberto R. Gonzales, US Department of Justice

Timeline Tags: Torture of US Captives, Civil Liberties

Referring to the recent appointment of former White House counsel Alberto Gonzales as US Attorney General (see November 10, 2004), retired chief judge of the Army Court of Appeals Brigadier General James Cullen says, “When you encounter a person who is willing to twist the law… even though for perhaps good reasons, you have to say you’re really undermining the law itself.” [Village Voice, 11/29/2004]

Entity Tags: James Cullen, Alberto R. Gonzales

Timeline Tags: Torture of US Captives, Civil Liberties

Recently retired Spanish Prime Minister Jose María Aznar says to a parliamentary investigation, “There is absolute proof that shows… a connection between ETA terrorists and Islamic terrorism.… I am one of those who believe that all [forms of] terrorism end up being connected.” ETA are a Basque separatist group. According to the Guardian, Aznar’s political party lost a national election three days after the March 2004 Madrid train bombings (see 7:37-7:42 a.m., March 11, 2004) “partly because voters mistrusted his government’s initial insistence that ETA, rather than Islamists, was to blame.” Since then, little evidence has come forward suggesting any ETA link with the bombing, although some of the Arab bomb suspects had contacts with some ETA associates in prison several years before. Aznar denies that his government lied about what it knew regarding who was responsible for the bombings. “My conscience is clear… we told the truth about what we knew.” [Guardian, 11/29/2004] Many Spaniards, especially supporters of Aznar’s conservative Popular Party, continue to assert that there was an ETA link. The Observer comments, “Few experts, however, give credence to the ETA theory. Some see it as an attempt by the [Popular] Party to muddy the waters in a vain bid to save the party’s battered reputation.” [Observer, 11/28/2004]

Entity Tags: Euzkadi Ta Azkatasuna, Jose Maria Aznar

Timeline Tags: Complete 911 Timeline

Daniel Levin.Daniel Levin. [Source: ABC News]Daniel Levin, the acting chief of the Justice Department’s Office of Legal Counsel (OLC), goes to a military base near Washington and has himself subjected to simulated waterboarding to judge for himself whether or not the interrogation tactic is torture. Levin then tells White House officials that he found the experience terrifying, and he is sure it simulates drowning. Levin concludes that waterboarding clearly qualifies as torture and should not be used by US personnel except in a highly limited and closely supervised fashion. Levin, who like his predecessor Jack Goldsmith (see June 17, 2004) is deeply troubled by the White House’s advocacy of torture as a method of securing information from terror suspects, and by its refusal to issue clear guidelines as to what is and what is not torture, decides to prepare a memo—legally binding—to replace the August 2002 Justice Department memo that established torture as an acceptable method of interrogation. Goldsmith had already withdrawn the memo after finding it deeply flawed (see December 2003-June 2004). In December 2004, Levin issues his new memo, which flatly states that “[t]orture is abhorrent” (see December 30, 2004), but he notes that the Justice Department is not declaring any previous positions by the administration illegal. Levin is planning a second memo that will impose tighter restrictions on specific interrogation techniques, but he never gets the chance to complete it. New attorney general Alberto Gonzales forces him out of the department instead, and replaces him with a much more compliant OLC chief, Steven Bradbury (see June 23, 2005). Most experts believe that waterboarding is indeed torture, and that torture is a poor way of extracting accurate information. Retired Rear Admiral John Hutson will say, “There is no question this is torture—this is a technique by which an individual is strapped to a board, elevated by his feet and either dunked into water or water poured over his face over a towel or a blanket.” [ABC News, 11/2/2007; Think Progress, 11/3/2007; GulfNews, 11/5/2007] Gonzales is widely believed to have been selected as the new attorney general in part to ease the way for the Bush administration to continue its support for torture as a valid method of interrogation. Shortly after taking the office, Gonzales pressured Levin to add the footnote exculpating the administration from any legal responsibility for its previous positions, and shortly thereafter, Gonzales has Levin removed from the department. In November 2007, the Washington Post’s editorial board will decry Gonzales’s ouster of Levin, and the administration’s support for torture, as a blatant “disregard for principle.” [Washington Post, 11/6/2007] MSNBC host Keith Olbermann, a harsh critic of the Bush administration, will later call Levin “an astonishingly patriotic American and a brave man.” He will fire a broadside directly at the president: “Daniel Levin should have a statue in his honor in Washington right now. Instead, he was forced out as acting assistant attorney general nearly three years ago because he had the guts to do what George Bush couldn’t do in a million years: actually put himself at risk for the sake of his country, for the sake of what is right.” [MSNBC, 11/5/2007]

Entity Tags: Washington Post, US Department of Justice, Steven Bradbury, Office of Legal Counsel (DOJ), Daniel Levin, Bush administration (43), Keith Olbermann, George W. Bush, John D. Hutson, Jack Goldsmith, Alberto R. Gonzales

Timeline Tags: Torture of US Captives, Civil Liberties

Daniel Levin, the outgoing chief of the Justice Department’s Office of Legal Counsel (OLC—see Late 2004-Early 2005), sends a memo to Deputy Attorney General James Comey. The memo will remain secret, but the American Civil Liberties Union (ACLU) will learn that it provides legal advice on communications between defense attorneys and detainees in combatant status review tribunals. [ProPublica, 4/16/2009]

Entity Tags: US Department of Justice, American Civil Liberties Union, Daniel Levin, James B. Comey Jr., Office of Legal Counsel (DOJ)

Timeline Tags: Civil Liberties

An extremist arrested and interrogated in Saudi Arabia appears to disclose details of an operation that is strikingly similar to the 7/7 London bombings that will occur in mid-2005 (see July 7, 2005). However, the intelligence does not yield any results before the attacks, even though it is shared with the US and Britain. It will later be unclear whether the arrested man, known as Adel, provided a truthful account or was a fabricator who just happened to predict some details of the plot. Adel is arrested in Buraydah, Saudi Arabia, in late 2004 for using a fraudulent passport, and a memo on his interrogation dated December 14 of that year, which is sent to the CIA and British intelligence, seems to reveal details of a multifaceted operation. Some details match those of the actual attack: it is to be carried out by four people in London in the middle of 2005, some of them British citizens, and will include a location around “Edgewood Road” (one of the bombs will explode at Edgeware Road tube station). The target is said to be a subway station or a nightclub. However, Adel, who is said to know Abu Musab al-Zarqawi, also says the explosives will come from Bosnia and the plot will be coordinated by a Libyan businessman in London, who will help with safe houses and transport. In addition, one of the bombers is said to have tattoos on his fingers. The Saudis send Britain and the US a second report in February 2005, providing more details about the alleged bombers, who are supposed to be from different countries, although there are also apparently Caucasian British and Germans involved. The CIA checks a Syrian phone number mentioned in one of the memos, but finds nothing. [Woodward, 2006, pp. 400-2; Observer, 2/5/2006] After the bombings, Saudi ambassador to London Prince Turki will say in a statement, “There was certainly close liaison between the Saudi Arabian intelligence authorities and the British intelligence authorities some months ago, when information was passed to Britain about a heightened terrorist threat to London,” although it is unclear whether this statement refers to this warning, another Saudi warning about a possible attack in Britain (see April 2005 or Shortly Before), or both. [New Statesman, 11/1/2007] Interest in the detainee will be revived after the attack and even President Bush will become involved, but veteran reporter Bob Woodward, who examines the story in a 2006 book, will conclude that Adel is a fabricator. [Woodward, 2006, pp. 400-2] However, a Saudi security adviser will later say that he is “convinced” the information passed on was “directly linked” to the 7/7 bombings. [Observer, 2/5/2006]

Entity Tags: Bob Woodward, Central Intelligence Agency, UK Security Service (MI5), Turki al-Faisal

Timeline Tags: Complete 911 Timeline

The Justice Department issues a 17-page memo which officially replaces the August 2002 memo (see August 1, 2002), which asserted that the president’s wartime powers supersede international anti-torture treaties and defined torture very narrowly, describing it as a tactic that produces pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” The new memo, authored by acting chief of the Office of Legal Counsel (OLC) and Acting Assistant Attorney General Daniel Levin, is ostensibly meant to deflect criticisms that the Bush administration condones torture. In fact, the very first sentence reads, “Torture is abhorrent both to American law and values and to international norms.” But the White House insists that the new memo does not represent a change in policy because the administration has always respected international laws prohibiting the mistreatment of prisoners. The primary concern of the new memo is to broaden the narrow definition of torture that had been used in the August memo. Levin adopts the definition of torture used in Congressional anti-torture laws, which says that torture is the infliction of physical suffering, “even if it does not involve severe physical pain.” But the pain must still be more than “mild and transitory,” the memo says. Like the original memo, Levin says that torture may include mental suffering. But to be considered so it would not have to last for months or years, as OLC lawyers Jay Bybee and John Yoo had asserted two years earlier. The most contested conclusions of the August 2002 memo—concerning the president’s wartime powers and potential legal defense for US personnel charged with war crimes—are not addressed in the Levin memo. “Consideration of the bounds of any such authority would be inconsistent with the president’s unequivocal directive that United States personnel not engage in torture,” the memo says. [US Department of Justice, 12/30/2004 pdf file; Associated Press, 12/31/2004]
National Security Not a Justification for Torture - The memo also attempts to quell concerns that the administration believes national security may be used as justification for tactics that could be considered as torture. It states, “[A] defendant’s motive (to protect national security, for example) is not relevant to the question whether he has acted with the requisite specific intent under the statute.” [US Department of Justice, 12/30/2004 pdf file]
Memo Divided White House Officials - Many in the White House opposed the issuance of the memo, but were rebuffed when other administration officials said the memo was necessary to ease the confirmation of Alberto Gonzales as Attorney General. [New York Times, 10/4/2007]
Torture Opponents Disappointed - Civil libertarians and opponents of torture within the Justice Department are sharply disappointed in the memo. While it gives a marginally less restrictive definition of the pain required to qualify as torture, and gives no legal defenses to anyone who might be charged with war crimes, it takes no position on the president’s authority to override interrogation laws and treaties, and finds that all the practices previously employed by the CIA and military interrogators were and are legal. Yoo will later write that “the differences in the opinions were for appearances’ sake. In the real world of interrogation policy, nothing had changed. The new opinion just reread the statute to deliberately blur the interpretation of torture as a short-term political maneuver in response to public criticism.” [Savage, 2007, pp. 196-197]
Secret Memo Will Allow Waterboarding; Dissidents Purged - A secret memo is completed a short time later that allows such torture techniques as waterboarding to be used again (see February 2005). The Levin memo triggers a department-wide “purge” of dissidents and torture opponents; some will resign voluntarily, while others will resign after being denied expected promotions. [Savage, 2007, pp. 197]

Entity Tags: Office of Legal Counsel (DOJ), Bush administration (43), Daniel Levin, Alberto R. Gonzales, Jay S. Bybee, John C. Yoo

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

2005: NSA Proposes New Data Mining Program

The National Security Agency calls for proposals in regard to a new electronic surveillance program, the Advanced Capabilities for Intelligence Analysis (ACIA). Like its cousin, the Novel Intelligence from Massive Data (NIMD) project (see After September 11, 2001), ACIA will use a huge electronic database of information on US citizens and foreign nationals to track potential terrorists and terror plots. Like NIMD, ACIA will look for ways “to construct and use plausible futures in order to provide additional, novel interpretations for today’s collection” of intelligence information, according to the call for proposals. [National Journal, 1/20/2006]

Entity Tags: National Security Agency, Advanced Capabilities for Intelligence Analysis, Novel Intelligence from Massive Data

Timeline Tags: Civil Liberties

Arlen Specter.Arlen Specter. [Source: US Senate]White House counsel Alberto Gonzales testifies before the US Senate as part of his confirmation as the Bush administration’s new attorney general. Much of the seven hours of testimony focuses on Gonzales’s position on torturing terrorist suspects. He is specifically questioned on the August 2002 Justice Department memo requested by Gonzales that outlined how US officials could interrogate subjects without violating domestic and international laws against torture by setting unusually high standards for the definition of torture (see August 1, 2002). [Democracy Now!, 1/7/2005] Arlen Specter (R-PA) asks Gonzales if he approves of torture. Gonzales replies, “Absolutely not,” but refuses to be pinned down on specifics of exactly what constitutes torture.
Equivocating on the Definition of Torture - Gonzales says he “was sickened and outraged” by the photographs of tortured Iraqis at Abu Ghraib prison (see Evening November 7, 2003), but refuses to say whether he believes any of that conduct is criminal, citing ongoing prosecutions. Joseph Biden (D-DE) retorts: “That’s malarkey. You are obliged to comment. That’s your judgment we’re looking at.… We’re looking for candor.” [CNN, 1/7/2005] When asked whether he agrees with the August 2002 memo that said, “[F]or an act to violate the torture statute, it must be equivalent in intensity to the pain accompanying serious physical injury such as organ failure, impairment of bodily function, or even death,” Gonzales says: “We were trying to interpret the standard set by Congress. There was discussion between the White House and Department of Justice as well as other agencies about what does this statute mean? It was a very, very difficult—I don’t recall today whether or not I was in agreement with all of the analysis, but I don’t have a disagreement with the conclusions then reached by the department.” He says that the standard “does not represent the position of the executive branch” today. Author and torture expert Mark Danner calls the standard “appalling… even worse the second time through.” Gonzales was obviously prepped for this line of questioning, Danner says: “He sat in front of the committee and asserted things, frankly, that we know not to be true.… He was essentially unwilling to say definitively there were no situations in which Americans could legally torture prisoners.… [T]here’s an assumption behind [this performance] that we have the votes. We’re going to get through. I just have to give them nothing on which to hang some sort of a contrary argument.”
Equivicating on Techniques - Edward Kennedy (D-MA) questions Gonzales about what techniques are defined as torture, including “live burial” (see February 4-5, 2004) and waterboarding. Kennedy says that, according to media reports, Gonzales never objected to these or other techniques. Gonzales does not have a “specific recollection” of the discussions or whether the CIA ever asked him to help define what is and is not torture. He also says that in “this new kind of” war against “this new kind of enemy, we realized there was a premium on receiving information” the US needs to defeat terrorists. Agencies such as the CIA requested guidance as to “[w]hat is lawful conduct” because they did not “want to do anything that violates the law.” Kennedy asks if Gonzales ever suggested that the Justice Department’s Office of Legal Counsel (OLC) ever “lean forward on this issue about supporting the extreme uses of torture?” Gonzales focuses on Kennedy’s phrasing: “Sir, I don’t recall ever using the term sort of ‘leaning forward,’ in terms of stretching what the law is.” He refuses to admit giving any opinions or requesting any documents, but only wanted “to understand [the OLC’s] views about the interpretation” of torture. Danner notes that Justice Department officials have told reporters that Gonzales pushed for the expansive definition of torture in the memos, but Gonzales refuses to admit to any of that in the questioning.
Ignoring the Uniform Code of Military Justice - Lindsey Graham (R-SC) tells Gonzales that the Justice Department memo was “entirely wrong in its focus” because it excluded the Uniform Code Of Military Justice, and that it “put our troops at jeopardy.” Gonzales replies that he does not think that because of the memo the US has lost “the moral high ground” in the world. Danner says, “[Graham] is arguing that these steps weakened the United States, not only by putting troops at risk, but by undermining the US’s reputation in the world, undermining the ideological side of this war… Graham is saying very directly that by torturing, and by supplying images like that one, of… a hooded man, the man with the hood over his head and the wires coming out of his fingers and his genitals which is known far and wide in the Arab world in the Middle East it’s become highly recognizable by supplying that sort of ammunition, you’re giving very, very strong comfort and aid to the enemy in fact.” [Democracy Now!, 1/7/2005]

Entity Tags: Clarence Thomas, Arlen Specter, Alberto R. Gonzales, Central Intelligence Agency, Uniform Code of Military Justice, US Department of Justice, Mark Danner, Patrick J. Leahy, Joseph Biden, Bush administration (43), Office of Legal Counsel (DOJ)

Timeline Tags: Torture of US Captives, Civil Liberties

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

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

Timeline Tags: Civil Liberties

Attorney general nominee Alberto Gonzales turns in supplementary written answers to expand upon and clarify his testimony before the Senate Judiciary Committee (see January 6, 2005 and January 6, 2005). Buried in the documents is what reporter Charlie Savage will call “an explosive new disclosure.” Gonzales reveals that the Bush administration had secretly decided that the Convention against Torture, an international treaty, only has force on domestic soil, where the US Constitution applies. Noncitizens held overseas have no rights under the treaty, Bush lawyers concluded. Legal scholars from all sides of the political continuum denounce the administration’s position. Judge Abraham Sofaer, who negotiated the treaty for the Reagan administration, will write a letter to Congress informing it that President Reagan had never intended the treaty’s prohibition on torture and brutal treatment to apply only on US soil. However, the Bush administration stands by its position. [Savage, 2007, pp. 213]

Entity Tags: Senate Judiciary Committee, Abraham Sofaer, Alberto R. Gonzales, Bush administration (43), Charlie Savage

Timeline Tags: Civil Liberties

The American Civil Liberty Union (ACLU) calls for the creation of a Special Counsel “to investigate and prosecute any criminal acts by civilians in the torture or abuse of detainees by the US Government” and appeals to senators to insist that Alberto Gonzales commit to appointing one, before voting on his nomination as attorney general. “[I]t is likely,” the ACLU concludes, that between the production of the August 1, 2002 OLC memo (see August 1, 2002) and its official replacement by another legal opinion on December 30, 2004 (see December 30, 2004), “criminal acts occurred under the looser interpretations in effect for more than two years.” According to the ACLU, “The appointment of an outside special counsel—with full investigatory and prosecutorial powers—is the only way to ensure that all civilians who violated federal laws against torture will be held responsible.” [American Civil Liberties Union, 1/30/2005]

Entity Tags: Alberto R. Gonzales, American Civil Liberties Union

Timeline Tags: Torture of US Captives, Civil Liberties

The Justice Department issues a secret opinion that countermands and contradicts the administration’s official policy that torture is “abhorrent” and will not be practiced by US military or law enforcement officials (see December 30, 2004). The secret opinion is, the New York Times writes two years later while publicly revealing its existence, “an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.” The opinion gives explicit authorization to abuse detainees with a combination of physical and psychological abuse, including head-slapping, stress positioning, simulated drowning (“waterboarding”), and prolonged exposure to intense cold. New attorney general Alberto Gonzales (see November 10, 2004) approves the memo over the objections of deputy attorney general James Comey, himself preparing to leave the Justice Department after a series of battles over the legality of torture and the domestic surveillance program (see March 10-12, 2004). Comey says at the time that everyone at the department will be “ashamed” of the new opinion once the world learns of it. [New York Times, 10/4/2007]

Entity Tags: US Department of Justice, Alberto R. Gonzales, Central Intelligence Agency, New York Times

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

Former White House counsel Alberto Gonzales is confirmed as attorney general by the Senate on a generally party-line vote of 60-36, one of the smallest margins of confirmation in Senate history. Gonzales’s confirmation hearings (see January 6, 2005 and January 6, 2005) have been the source of great controversy, with Senate Democrats accusing him of being deliberately evasive, obfuscutory (see January 17, 2005), and even obtuse during questioning, but with a solid Republican majority, Democrats have little ability to do anything to interfere with Gonzales’s ascension to power. [Savage, 2007, pp. 213] Senator Christopher Dodd (D-CT) explains his opposition to Gonzales: “What is at stake here is whether he has demonstrated to the Senate of the United States that he will discharge the duties of the office to which he’s been nominated, specifically whether he will enforce the Constitution and the laws of the United States and uphold the values upon which those laws are based. Regrettably, and disturbingly in my view, Alberto Gonzales has fallen short of meeting this most basic and fundamental standard.” Dodd adds that Gonzales “has endorsed, unfortunately, the position that torture can be permissible.” Fellow Senator Richard Durbin (D-IL) adds: “At the very least Mr. Gonzales helped to create a permissive environment that made it more likely that abuses would take place. You could connect the dots from the administration’s legal memos to the Defense Department’s approval of abusive interrogation techniques for Guantanamo Bay to Iraq and Abu Ghraib.” Republicans are incredulous that Democrats would oppose Gonzales’s candidacy, and imply that their opposition is racially based. “Is it prejudice?” asks Senator Orrin Hatch (R-UT). “Is it a belief that a Hispanic-American should never be in a position like this because he will be the first one ever in a position like this? Or is it because he’s constantly mentioned for the Supreme Court of the United States of America? Or is it that they just don’t like Judge Gonzales?” Senator Mel Martinez (R-FL) says: “This is a breakthrough of incredible magnitude for Hispanic-Americans and should not be diluted by partisan politics. Judge Gonzales is a role model for the next generation of Hispanic-Americans in this country.” [Fox News, 2/4/2005] When Gonzales is sworn in on February 14, President Bush will use the occasion to urge Congress to renew the controversial USA Patriot Act (see February 14, 2005). [Deseret News, 2/15/2005]

Entity Tags: Richard (“Dick”) Durbin, Mel Martinez, Alberto R. Gonzales, Orrin Hatch, Bush administration (43), George W. Bush, Christopher Dodd, US Department of Justice

Timeline Tags: Civil Liberties

The acting chief of the Justice Department’s Office of Legal Counsel, Daniel Levin, sends a memo to William J. Haynes, the chief counsel for the Defense Department, advising Haynes that he is withdrawing the Justice Department’s March 2003 memo that justified certain “harsh” methods of interrogation of prisoners in US custody. Levin, writing in carefully couched legal language, says that many of the interrogation methods currently in use by US interrogators are not within the legal parameters for interrogation—in other words, the methods qualify as torture under US law. [US Department of Justice, 2/4/2005 pdf file] Levin recently underwent a simulated waterboarding session to determine for himself if the practice qualified as torture, and determined that it did so. He will shortly be relieved of his position in the Justice Department, and the administration will continue its support for waterboarding and other “harsh” methods of interrogation (see Late 2004-Early 2005).

Entity Tags: Daniel Levin, William J. Haynes, Office of Legal Counsel (DOJ), US Department of Justice

Timeline Tags: Torture of US Captives, Civil Liberties

On March 18, 2005, Mouhannad Almallah is arrested in Madrid, Spain. The next day, his brother Moutaz Almallah is arrested in Slough, near London. Both are accused of involvement in the 2004 Madrid train bombings (see 7:37-7:42 a.m., March 11, 2004). [Independent, 3/20/2005] The arrests come less than two weeks after it was widely reported that in 2004 police had found a sketch of the New York Grand Central Station terminal in an apartment where Mouhannad was living, leading to suspicions that he was involved in a planned attack on New York. [El Mundo (Madrid), 3/2/2005] It appears that Moutaz was under surveillance in Spain for al-Qaeda links since 1995, and Mouhannad since 1998 (see November 1995). Mouhannad was arrested shortly after the Madrid bombings, but then released (see March 16, 2004). Moutaz will be extradited to Spain in March 2007, but he has yet to be put on trial. [Reuters, 3/8/2007] In 2007, Mouhannad will be sentenced to 12 years in prison for a role in the Madrid bombings (see October 31, 2007).

Entity Tags: Moutaz Almallah, Mouhannad Almallah

Timeline Tags: Complete 911 Timeline

Zacarias Moussaoui wants captured al-Qaeda leaders Khalid Shaikh Mohammed and Ramzi bin al-Shibh to testify in his trial. However, an appeals court in April 2004 had only allowed indirect access to those prisoners, and further appeals court decisions in September and October 2004 had reaffirmed that ruling. On this date, the US Supreme Court, without comment, refuses to hear a further appeal. This was expected because the Supreme Court typically doesn’t hear such appeals until after the case goes to trial. [Washington Post, 9/14/2004; Washington Post, 10/14/2004; Washington Post, 3/22/2005] Moussaoui’s guilty plea one month later (see April 22, 2005) may lead to a new round of appeals. Presiding judge Leonie Brinkema has indicated she believes witness access is “highly relevant to the sentencing phase,” which will begin next, and could constitute “mitigating evidence” that could make the difference between Moussaoui receiving the death penalty or not. [Washington Post, 4/23/2005]

Entity Tags: Zacarias Moussaoui, Khalid Shaikh Mohammed, US Supreme Court, Ramzi bin al-Shibh, Leonie Brinkema

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

After the 7/7 London bombings (see July 7, 2005), an official at the Saudi Arabian embassy will tell a British journalist that before the attack Saudi Arabia provided intelligence to Britain that was sufficient to dismantle the plot, but British authorities failed to act on it. The information is quite detailed, containing names of senior al-Qaeda members said to be involved in the plot, including Kareem al-Majati, whose calls the Saudis have been intercepting and who may have been in contact with lead bomber Mohammad Sidique Khan. Al-Majati is said to have been involved in attacks in Morocco (see May 16, 2003) and Madrid (see 7:37-7:42 a.m., March 11, 2004), before being killed in a shoot-out in Saudi Arabia in April 2005. Calls from Younes al-Hayari, an al-Qaeda logistics expert and al-Majati’s lieutenant, are also traced to Britain. Al-Hayari will die in a shootout in Saudi Arabia four days before the 7/7 bombings. Details of calls, e-mails, and text messages between an al-Qaeda cell in Saudi Arabia and a group in Britain are passed on to the British intelligence agencies MI5 and MI6. After the bombings, Saudi ambassador to Britain Prince Turki al-Faisal issues a statement, “There was certainly close liaison between the Saudi Arabian intelligence authorities and the British intelligence authorities some months ago, when information was passed to Britain about a heightened terrorist threat to London,” although it is not clear if this statement refers to this warning, another Saudi warning about a possible attack in Britain (see December 14, 2004-February 2005), or both. The public response by British authorities when asked about this alleged warning changes over time; initially they deny having received it at all, but after the issue is reignited by King Abdullah in 2007 (see October 29, 2007), they will say that the warning was not specific enough to act on. [Observer, 8/7/2005; New Statesman, 11/1/2007]

Entity Tags: Younes al-Hayari, Turki al-Faisal, UK Secret Intelligence Service (MI6), Kareem al-Majati, Mohammad Sidique Khan, UK Security Service (MI5)

Timeline Tags: Complete 911 Timeline

Jay Rockefeller.Jay Rockefeller. [Source: US Senate]Ranking member of the Senate Intelligence Committee Jay Rockefeller (D-WV) requests “over a hundred documents” from the CIA’s Inspector General. The documents are referenced in or pertain to a report the Inspector General drafted in May 2004 about the CIA’s detention and interrogation activities. Rockefeller also requests a report drafted by the CIA’s Office of General Counsel (see 2003) on the examination of videotapes of detainee interrogations stating whether the techniques they show comply with an August 2002 Justice Department opinion on interrogation (see August 1, 2002). However, the CIA refuses to provide these documents, as well as others, even after a second request is sent to CIA Director Porter Goss in September 2005. [US Congress, 12/7/2007] The videotapes Rockefeller is asking about will be destroyed by the CIA just two months after his second request (see November 2005).

Entity Tags: Senate Intelligence Committee, John D. Rockefeller, Office of the Inspector General (CIA), Central Intelligence Agency, Porter J. Goss

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

Excerpt from a diagram of a tracheotomy.Excerpt from a diagram of a tracheotomy. [Source: Gale Encyclopedia of Medicine]Steven Bradbury, the head of the Justice Department’s Office of Legal Counsel (OLC), issues a classified memo to John Rizzo, the senior deputy counsel for the CIA, the second of two memos issued on the same day by Bradbury to Rizzo (see May 10, 2005). This memo, a supplement to the first, considers interrogation techniques used in combination. Bradbury concludes, “Subject to the conditions and limitations set out here and in [the previous memo], we conclude that the authorized combined use of these specific techniques by adequately trained interrogators would not violate” US statutory law. The memo will not be released to the public for almost four years (see April 16, 2009).
Emergency Tracheotomy Procedures at Ready - The memo finds that, even though an earlier OLC memo had declared waterboarding to be a safe procedure (see August 1, 2002), a medical practicioner with a tracheotomy kit must be present to ensure the detainee is not injured or killed during the procedure. Bradbury writes: “[A] detainee could suffer spasms of the larynx that would prevent him from breathing even when the application of water is stopped and the detainee is returned to an upright position. In the event of such spasms, a qualified physician would immediately intervene to address the problem, and, if necessary, the intervening physician would perform a tracheotomy… we are informed that the necessary emergency medical equipment is always present—although not visible to the detainee—during any application of the waterboard.” In a heavily redacted section, the memo states: “In our limited experience, extensive use of the waterboard can introduce new risks. Most seriously, for reasons of physical fatigue or psychological resignation, the subject may simply give up, allowing excessive filling of the airways and loss of consciousness. An unresponsive subject should be righted immediately and the interrogator should deliver a sub-xyphoid thrust to expel the water. If this fails to restore normal breathing, aggressive medical intervention is required. Any subject who has reached this degree of compromise is not [REDACTED].” [Office of Legal Counsel, 5/10/2005 pdf file]
'Last-Resort Procedure' - According to the Gale Encyclopedia of Medicine: “A tracheotomy is a surgical procedure in which a cut or opening is made in the windpipe (trachea). The surgeon inserts a tube into the opening to bypass an obstruction, allow air to get to the lungs, or remove secretions.… A tracheotomy is performed if enough air is not getting to the lungs, if the person cannot breathe without help, or is having problems with mucus and other secretions getting into the windpipe because of difficulty swallowing.… Doctors perform emergency tracheotomies as last-resort procedures. They are done only if the patient’s windpipe is obstructed and the situation is life-threatening.” [Gale Encyclopedia of Medicine, 2009]

Entity Tags: Office of Legal Counsel (DOJ), Steven Bradbury, US Department of Justice, Central Intelligence Agency, Gale Encyclopedia of Medicine, John Rizzo

Timeline Tags: Torture of US Captives, Civil Liberties

Maussili Kalaji.Maussili Kalaji. [Source: El Mundo]The Madrid newspaper El Mundo reveals some curious details about Spanish police officer Ayman Maussili Kalaji and the 2004 Madrid bombings (see 7:37-7:42 a.m., March 11, 2004):
bullet Born in Syria, Kalaji belonged to the militant group Al Fatah and was also a Soviet intelligence agent. He moved to Spain in the early 1980s as a political refugee and eventually became a citizen and joined the national police by the late 1980s. He rose through the ranks and at some point he was the bodyguard to Baltasar Garzon, the Spanish judge presiding over trials of al-Qaeda-linked militants in Spain such as Barakat Yarkas.
bullet In 1995, Kalaji sold an apartment to Moutaz Almallah. Almallah is considered a key link between the bombing cell and al-Qaeda operatives overseas. His apartment is said to be a nerve center for the plot. Kalaji admits to being in close contact with Almallah.
bullet When a different apartment owned by Almallah was raided after the Madrid bombing, two documents were found with Kalaji’s name on it. One referenced the 1995 purchase, and the second was from 2001. This apartment, on Virgen de Coro street in Madrid, was a key hub of the Madrid bombers and was under surveillance for a full year leading up to the bombings (see January 17, 2003-Late March 2004).
bullet Kalaji is also said to have been on friendly terms with Barakat Yarkas, the leader of the al-Qaeda cell in Madrid until his arrest in November 2001. Kalaji played a role in the arrest.
bullet In 2001, Kalaji was investigated for credit card fraud.
bullet For many years, Kalaji’s sister Lina Kalaji was in charge of translating the monitored telephone calls from Islamist cells in Spain. In 2002, she translated the intercepts of Serhane Abdelmajid Fakhet, considered one of the bombing masterminds (see 2002).
bullet His ex-wife Marisol Kalaji is also a police officer and was the first on the scene to a van discovered the day of the bombings containing a cassette tape of the Koran. This is what first led investigators to believe the bombing was the work of Islamist and not Basque militants (see 10:50 a.m.-Afternoon, March 11, 2004).
bullet He owns a cell phone store. The phones used to trigger the bombs were bought in a different store, but in Kalaji’s store the phones’ internal codes were reset so they could be used by other phone services.
He is said to go on leave not long after the bombings, due to all his curious connections. He also gives a statement to investigators regarding his role in changing the phone codes, but he is not charged for any crime. [El Mundo (Madrid), 5/17/2005; National Review, 5/18/2005; El Mundo (Madrid), 5/20/2005; El Mundo (Madrid), 8/22/2005] For days after El Mundo publishes its first story about Kalaji, a Spanish police commissioner will officially request Kalaji be arrested, but apparently he never is (see May 20, 2005). In August 2005, El Mundo will conclude that “it is becoming increasingly evident” that Kalaji played a “leading role” in the Madrid bombings. [El Mundo (Madrid), 8/22/2005] Almallah will be arrested in Britain in 2005 and extradited to stand trial in Spain in 2007 (see March 18-19, 2005). [London Times, 3/9/2007]

Entity Tags: Barakat Yarkas, Baltasar Garzon, Lina Kalaji, Marisol Kalaji, Moutaz Almallah, Ayman Maussili Kalaji

Timeline Tags: Complete 911 Timeline

Spains’ Commissioner General of Police, Telesforo Rubio, recommends in a report that a Spanish police officer named Ayman Maussili Kalaji should be arrested for a role in the 2004 Madrid bombings (see 7:37-7:42 a.m., March 11, 2004). The report, addressed to Juan del Olmo, the judge in charge of the bombers’ trial, comes three days after the Madrid newspaper El Mundo reported on Kalaji’s numerous links to some of the accused bombers, as well as the investigation itself (see May 16, 2005). The report requesting Kalaji’s arrest is leaked to El Mundo in July. The judge’s reply is unknown, but Kalaji is never arrested. Reportedly, the report claims that after the bombing, he gave the suspects warnings about the investigation. [El Mundo (Madrid), 7/29/2005] The report also notes that Kalaji has a background in electronics and is the most likely suspect to have soldered wires in cell phones to connect the vibrators with the bomb detonators. None of the arrested suspects have the expertise to solder the wires. The report concludes that although there is no proof he acted maliciously in adjusting the cell phones used in the bombings, there are many reasons to doubt that he did so naively. [El Mundo (Madrid), 8/22/2005] Kalaji will testify in the Madrid bombings trial in 2007, and it will be reported that he retired after being interrogated several days after the bombings. [El Mundo (Madrid), 3/21/2007]

Entity Tags: Telesforo Rubio, Ayman Maussili Kalaji, Juan del Olmo

Timeline Tags: Complete 911 Timeline

In a Columbus, Ohio, speech praising the USA Patriot Act (see October 26, 2001), President Bush claims that when US government agencies wiretap anyone’s phones or email communications, they do so with a court order. Bush says: “Before the Patriot Act, agents could use wiretaps to investigate a person committing mail fraud, but not to investigate a foreign terrorist. The Patriot Act corrected all these pointless double standards—and America is safer as a result. One tool that has been especially important to law enforcement is called a roving wiretap. Roving wiretaps allow investigators to follow suspects who frequently change their means of communications. These wiretaps must be approved by a judge, and they have been used for years to catch drug dealers and other criminals. Yet, before the Patriot Act, agents investigating terrorists had to get a separate authorization for each phone they wanted to tap. That means terrorists could elude law enforcement by simply purchasing a new cell phone. The Patriot Act fixed the problem by allowing terrorism investigators to use the same wiretaps that were already being using against drug kingpins and mob bosses. The theory here is straightforward: If we have good tools to fight street crime and fraud, law enforcement should have the same tools to fight terrorism.” [White House, 6/9/2005] Bush made almost identical claims a year ago (see April 19-20, 2004). The same day as Bush makes his speech, the White House issues a fact sheet making the same claims (see June 9, 2005). Former AT&T senior technician Mark Klein (see July 7, 2009 and May 2004), who helped install the equipment used by the National Security Agency (NSA) and his firm to intercept foreign and domestic Internet communications (see January 16, 2004), will later say that Bush’s insistence that the administration gets court orders before wiretapping communications is false. AT&T, on behalf of the NSA, was monitoring “billions of messages a second,” Klein will write, all without court orders. [Klein, 2009, pp. 47-48]

Entity Tags: Mark Klein, George W. Bush, National Security Agency, USA Patriot Act

Timeline Tags: Civil Liberties

Steven Bradbury.Steven Bradbury. [Source: Mark Wilson / Getty Images]Steven Bradbury is nominated by President Bush to head the Justice Department’s Office of Legal Counsel (OLC). He will continue in that position on an acting basis into 2008, even though Congressional Democrats refuse to confirm him for the job, and even though his continuation in the post violates the Vacancies Reform Act, which precludes non-confirmed appointees for holding their positions for over 210 days (see October 16, 2007). [Washington Times, 9/20/2007; New York Times, 10/4/2007; TPM Muckraker, 10/19/2007] Bradbury takes over from Jack Goldsmith, who resigned the position under fire (see June 17, 2004).
Arm of the White House - Bradbury has a long history of supporting the White House’s agenda of expansive executive power. He came to the Justice Department after clerking with Supreme Court Justice Clarence Thomas and mentoring under former Whitewater special counsel Kenneth Starr. [New York Times, 10/4/2007] A co-founder of the Federalist Society [International Herald Tribune, 10/15/2007] , he is as staunchly conservative as any Bush appointee, but unlike some of the more outspoken of his colleagues, he comes across as low-key, pragmatic, and non-confrontational. As a Justice Department lawyer, Bradbury proved himself in line with the neoconservative views of Vice President Dick Cheney and Cheney’s chief of staff, David Addington. Former State Department senior official Philip Zelikow recalls Bradbury as being “fundamentally sympathetic to what the White House and the CIA wanted to do.” Bradbury was brought in to the OLC in part to rein in that office, which under its previous head Jack Goldsmith became the hub of the internal opposition to Bush’s policies of “enhanced interrogation” and domestic surveillance (see Late 2003-2005). In 2005, Bradbury signs two secret Justice Department memos giving broad authorization and legal justification for the CIA’s torture of terrorist suspects (see February 2005 and Late 2005),. Bradbury works closely with then-White House counsel and current attorney general Alberto Gonzales to bring the Justice Department back into line with White House demands. Conservative legal scholar Douglas Kmiec, who headed the OLC under former presidents Reagan and George H. W. Bush, says he believes the intense pressures from the current administration’s campaign against terrorism has warped the OLC’s proper role. “The office was designed to insulate against any need to be an advocate,” Kmiec says. Now the OLC has “lost its ability to say no.… The approach changed dramatically with opinions on the war on terror. The office became an advocate for the president’s policies.”
Probation - Bradbury was first considered for the job after Gonzales, newly confirmed as attorney general, rejected the idea of promoting Daniel Levin, the acting head of the OLC after Goldsmith’s departure. Gonzales considered Levin unsuitable for the job because of his independence and support for Goldsmith’s dissents. Instead, Gonzales chose Bradbury for the job. But the White House was uncertain of Bradbury’s reliability, and so placed him on a sort of “internal trial,” monitored by Gonzales’s replacement at the White House, Harriet Miers. Miers judged Bradbury’s loyalty to the president and his willingness to work with Gonzales in justifying White House policy decisions. Bradbury reportedly understands that his “probation” is intended for him to show just how compliant and supportive he is of the White House, and he soon wins the confidence of the White House by completely aligning himself with Addington. [New York Times, 10/4/2007]
'Sordid criminal conspiracy' - Harper’s Magazine commentator and lawyer Scott Horton will write in November 2007 that it is obvious “Bradbury was picked for one reason: to provide continuing OLC cover for the torture conspirators.… The Justice Department’s strategy has been to cloak Bradbury’s torture memoranda in secrecy classifications and then to lie aggressively about their very existence.… This episode demonstrates once more the intimate interrelationship between the policies of torture, secrecy, and the right to lie to the public and the courts in the interests of shielding the Bush administration from public embarrassment. And once more the Justice Department is enlisted not in the enforcement of the law, but rather in a sordid criminal conspiracy.” [Harper's, 11/7/2007]

Entity Tags: Kenneth Starr, Richard (“Dick”) Cheney, National Security Agency, Philip Zelikow, US Department of Justice, Steven Bradbury, Scott Horton, Vacancies Reform Act, James B. Comey Jr., Jack Goldsmith, Office of Legal Counsel (DOJ), Harper’s Magazine, Clarence Thomas, Central Intelligence Agency, Bush administration (43), Daniel Levin, Alberto R. Gonzales, Harriet E. Miers, Geneva Conventions, Douglas Kmiec, David S. Addington, George Herbert Walker Bush

Timeline Tags: Civil Liberties

Months after the Bush administration successfully convinced the New York Times to hold off publishing its report on the administration’s warrantless wiretapping program (see Early November 2004, December 6, 2005, and December 15, 2005), one of the reporters on the story, Eric Lichtblau, attempts to get a response on the program from one of the few Democrats briefed on it, House Intelligence Committee ranking member Jane Harman (D-CA). In his 2008 book Bush’s Law: The Remaking of American Justice, Lichtblau will write about covering a House hearing where Harman launches into a passionate call for stronger civil liberties safeguards in the reauthorization of the USA Patriot Act (see March 9, 2006). According to his recollection, Lichtblau approaches Harman and says, “I’m trying to square what I heard in there with what we know about that program.” He will write: “Harman’s golden California tan turned a brighter shade of red. She knew exactly what I was talking about. Shooing away her aides, she grabbed me by the arm and drew me a few feet away to a more remote section of the Capitol corridor. ‘You should not be talking about that here,’ she scolded me in a whisper. ’ They don’t even know about that,’ she said, gesturing to her aides, who were now looking on at the conversation with obvious befuddlement.” Harman tells Lichtblau, “The Times did the right thing by not publishing that story,” but will not discuss the details. When asked what intelligence capabilities would be lost by informing the public about something the terrorists already knew—that the government was listening to them—she simply replies, “This is a valuable program, and it would be compromised.” Lichtblau will add: “This was clearly as far as she was willing to take the conversation, and we didn’t speak again until months later, after the NSA story had already run. By then, Harman’s position had undergone a dramatic transformation. When the story broke publicly, she was among the first in line on Capitol Hill to denounce the administration’s handling of the wiretapping program, declaring that what the NSA was doing could have been done under the existing FISA law.” [TPM Muckraker, 3/19/2008]

Entity Tags: Eric Lichtblau, Bush administration (43), New York Times, House Intelligence Committee, Jane Harman

Timeline Tags: Civil Liberties

The four London bombers captured on closed circuit television. From left to right, Hasib Hussain, Germaine Lindsay, Mohammad Sidique Khan, and Shehzad Tanweer, pictured in Luton train station at 07:21 a.m., Thursday, July 7, 2005.The four London bombers captured on closed circuit television. From left to right, Hasib Hussain, Germaine Lindsay, Mohammad Sidique Khan, and Shehzad Tanweer, pictured in Luton train station at 07:21 a.m., Thursday, July 7, 2005. [Source: Scotland Yard]England suffers its worst terrorist attack when four bombs go off in London during the morning rush hour. At 8:50 a.m. bombs go off on three London Underground trains within 50 seconds of each other. A fourth bomb goes off at 9:47 a.m. on a double-decker bus, near Tavistock Square. Fifty-six people, including the four bombers, are killed. The bombings become popularly known as ‘7/7.’ [Daily Telegraph, 7/7/2005; Daily Mail, 7/8/2005; CNN, 7/22/2005] The alleged bombers, all British residents between the ages of 18 and 30, are Mohammad Sidique Khan, Hasib Mir Hussain, Shehzad Tanweer, and Germaine Lindsay. All were British nationals of Pakistani descent, except Lindsay, who was born in Jamaica, but moved to England when he was five. [Daily Telegraph, 7/16/2005; BBC, 7/21/2005] In 2004, Khan had been the subject of a routine threat assessment by the British intelligence agency MI5, after his name came up during an investigation into an alleged plot to explode a truck bomb in London. However, MI5 did not consider him a threat and did not place him under surveillance. [BBC, 7/17/2005; London Times, 7/17/2005] According to the Independent, Tanweer had similarly been scrutinized by MI5 that year, but was also not considered a threat. [Independent, 12/17/2005] Khan and Tanweer had flown to Pakistan together in November 2004, returning together in February 2005. However, what they did during their stay is unclear. [BBC, 7/18/2005; CNN, 7/20/2005] Less than a month before the bombings, the British government lowered its formal threat assessment one level, from “severe general” to “substantial,” prompted by a confidential report by the Joint Terrorist Analysis Centre (JTAC). JTAC, which is made up of 100 top intelligence and law enforcement officials, concluded, “At present there is not a group with both the current intent and the capability to attack [Britain]” (see Mid-June 2005). [New York Times, 7/19/2005; London Times, 7/19/2005] The attacks also coincide with the G8 summit in Gleneagles, Scotland, attended by British Prime Minister Tony Blair and US President George W. Bush, amongst others. [Guardian, 7/7/2005] Consequently, 1,500 officers from London’s Metropolitan Police, including many anti-terrorist specialists, are away in Scotland as part of the force of 12,000 created to police the event. [Press Association (London), 7/7/2005; London Times, 7/10/2005]

Entity Tags: Germaine Lindsay, Mohammad Sidique Khan, Hasib Mir Hussain, Shehzad Tanweer

Timeline Tags: Complete 911 Timeline

Abdelkader Belliraj, a Belgian government informant leading a Moroccan militant group, allegedly helps foil an attack in Britain. Shortly after the 7/7 London bombings (see July 7, 2005), Belgian intelligence gives the British government “very precise” information from Belliraj about a planned follow-up attack. Arrests are made and material is seized in Liverpool, but the incident is not reported in the media at the time. (Apparently this is a different plot to a largely unsuccessful copycat bomb plot two weeks after the 7/7 bombings (see July 21, 2005)). A Belgian newspaper will say the attacks could have killed dozens of people. Belliraj had developed links to al-Qaeda in 2001 while being paid by Belgian’s internal security service (see 2001). He will be arrested in Morocco in 2008 (see February 18, 2008). [Agence France-Presse, 3/15/2008]

Entity Tags: Abdelkader Belliraj, State Security (of Belgium)

Timeline Tags: Complete 911 Timeline

George Christian.George Christian. [Source: PBS]Librarian and data manager George Christian is served with a so-called “National Security Letter” (NSL) from the FBI demanding that his firm turn over private information on its patrons because of an apparent terrorist threat e-mailed from one of his libraries (see February 2005). Christian is the executive director of Library Connection, Inc., which manages catalog information, patron records, and circulation information for 27 libraries in and around Hartford, Connecticut, as well as providing telecommunications services to many of its member libraries. Christian is given the NSL, as well as a gag order preventing them from ever mentioning their receipt of the letter, or any details surrounding it. Christian is notified of the letter five days before actually receiving it; he spends those days frantically learning more about NSLs and the laws surrounding them (see October 25, 2005). He learns that a district court in New York had found the entire NSL statute unconstitutional because of what Christian calls “prima facie violations of the 1st, 4th and 5th amendments.” By the time they receive the letter, he has decided to oppose it. The letter, delivered by two FBI agents, orders Christian and Library Connection to turn over information about a specific IP address registered to the firm. One of the agents warns Christian that the gag order prohibits anyone in the firm from telling anyone that the FBI is attempting to secure information from its library business records. Christian, who will testify before the Senate Judiciary Committee about the NSL in April 2007 (see April 11, 2007), says neither he nor his colleagues could “fathom any ‘exigent’ nature for the FBI request.” The letter was dated May 19, nearly two months before its delivery, was not addressed to Christian, and requested information from the use of the IP address five months earlier, February 15. Christian later says that while he and his colleagues want to assist the FBI in any way they can, and have no desire to “impede the investigation of a perilous situation that endanger[s] my country or my fellow citizens,” because of the date of the letter and the IP usage, they conclude that the FBI has not been in any rush to get the information. Christian tells the FBI agents that he believes the use of NSLs is unconstitutional and that he will consult his attorney. Library Connection’s attorney says that the only way to contest compliance with an NSL is to take the Attorney General, Alberto Gonzales, to court. Christian is understandably reluctant to involve his firm in such a court challenge without authorization, and takes the case to the Executive Committee of the firm’s board of directors. The three members, Barbara Bailey, Peter Chase, and Janet Nocek (who will soon be dubbed the “Connecticut Four” by the media), after conferring with the attorney and reviewing the New York court’s decision against NSLs, decide to go forward with the complaint. They secure representation from the American Civil Liberties Union (ACLU). Together, they decide to ask for relief from the NSL, to seek a broader ruling that the use of NSLs is unconstitutional, and to have the gag order lifted so they can publicly discuss the incident as “part of the national debate over renewal of the Patriot Act” (see March 9, 2006). Christian will tell the Senate Judiciary Committee, “We… felt we were defending our democracy by insisting that the checks and balances established in the Constitution be observed. We had no court order, and there was no evidence that an independent judge had examined the FBI’s evidence and found there to be probable cause justifying their request for information.… [W]e did not want to aid terrorists or criminals.… But we did not feel we would be helping the country or making anyone safer by throwing out the Constitution either.” Because of the way the computer system is set up, to give the FBI the information about the specific IP address and usage it required, Christian would have to give the FBI information about everyone using every computer in the particular library on the day in question. He later says, “[S]ince there was no way of determining who was using the computers in the library five months after the fact, we felt that [the FBI wanted] information we had on all the patrons of that library. That seemed like a rather sweeping request. Some would call it a fishing expedition.” The case goes to trial in August 2005 (see August 2005-May 2006). [Senate Judiciary Committee, 4/11/2007] It is later learned that the original e-mailed threat is a hoax. [USA Today, 7/6/2006]

Entity Tags: Peter Chase, National Security Letters, Senate Judiciary Committee, Library Connection, Inc., Barbara Bailey, George Christian, American Civil Liberties Union, Janet Nocek, Alberto R. Gonzales, Federal Bureau of Investigation, Connecticut Four

Timeline Tags: Civil Liberties

Senator John McCain (R-AZ) introduces an amendment to the annual legislation to fund the Defense Department. McCain’s amendment, co-sponsored by Senate Armed Services Committee chairman John Warner (R-VA) and Senator Lindsey Graham (R-SC), a former military lawyer, states that military interrogators cannot exceed the limits on detainee treatment set forth in the US Army Field Manual. In essence, the amendment would prohibit the use of harsh interrogation techniques that many, including McCain, feel constitute torture. The Field Manual limits were specifically written to comply with the Geneva Conventions. The amendment also prohibits US officials, including CIA agents, from inflicting not just torture but any form of “cruel, inhuman, and degrading treatment” on anyone in their custody, no matter where in the world the prisoner is being kept. The amendment, later known as the McCain Amendment or the McCain Torture Ban, becomes the subject of fierce, largely private negotiations between McCain and the White House. Vice President Cheney quickly lobbies friendly Republicans in Congress to oppose the amendment, and has private meetings with Warner and McCain. At Cheney’s behest, Senate Majority Leader Bill Frist (R-TN) withdraws the entire bill from consideration rather than allow it to pass with the McCain amendment attached. [Savage, 2007, pp. 220-221]

Entity Tags: Geneva Conventions, Bill Frist, Central Intelligence Agency, Detainee Treatment Act, Richard (“Dick”) Cheney, John McCain, US Department of Defense, Lindsey Graham, John W. Warner

Timeline Tags: Civil Liberties

The Connecticut Four, from left to right: Janet Nocek, Peter Chase, George Christian, and Barbara Bailey.The Connecticut Four, from left to right: Janet Nocek, Peter Chase, George Christian, and Barbara Bailey. [Source: Robert Deutsch/ USA Today]A case filed against Attorney General Alberto Gonzales by four plaintiffs from Connecticut’s Library Connection, Inc.—George Christian, Barbara Bailey, Peter Chase, and Janet Nocek—goes to trial in federal district court (see July 13, 2005). The trial is filed as Doe v. Gonzales because the government has filed a gag order against the plaintiffs forbidding them from identifying themselves or discussing the case publicly. The case involves a demand for information from the FBI for information concerning library usage by patrons of a Connecticut library; the four plaintiffs, on behalf of their data management firm Library Connection, have refused. The case revolves around the use of a National Security Letter (NSL) by the FBI; the plaintiffs, with support from the American Civil Liberties Union, want the NSL voided, the gag order lifted, and such use of NSLs found unconstitutional. Christian and his three colleagues are not allowed to attend the hearings in person because of the possibility that they might be identified as the plaintiffs; they are forced to watch the proceedings on a closed-circuit broadcast from a locked room in the Hartford courthouse. When the judge in the proceeding asks to review the government’s evidence for keeping the gag rule in place, Justice Department lawyers insist on submitting secret evidence directly to the judge, without providing that evidence to the plaintiff’s lawyers. The judge is not pleased, and rules, as did her predecessor in New York, that a perpetual gag order amounts to prior restraint, and thereby is unconstitutional. She adds that her review of the secret evidence gives no national security rationale for keeping the plaintiffs gagged. The Justice Department immediately appeals the ruling, and the plaintiffs stay silent and gagged. While the four plaintiffs remain silent about the NSL and the court case, the Justice Department’s primary lawyer, Kevin O’Conner, does not: O’Conner has frequently debated one of the plaintiffs, Chase, about the Patriot Act, and though Chase is now required to remain silent, O’Conner continues to make frequent public appearances touting the Patriot Act. Christian later says, in 2007 testimony before the Senate Judiciary Committee (see April 11, 2007), that the continuing gag order causes the four “John Does” considerable professional and personal distress, especially after the national media begins reporting the story. The media eventually learns, through the careless redaction of information by government lawyers, of Chase’s identity as one of the four plaintiffs, and reveals that Library Connection is the firm involved in the lawsuit. Christian’s name comes to light shortly thereafter. The attorneys warn Christian and the others that even though their identities and their firm have been revealed, they still cannot comment at all on the case. Christian, for one, wants to testify before Congress in regards to the upcoming reauthorization of the Patriot Act (see March 9, 2006), but cannot. The four plaintiffs quickly become known in the media as the “Connecticut John Does” or the “Connecticut Four.”
Appeals Court - In November 2005, a New York court of appeals hears the case. Christian and his colleagues are allowed to be present at the case this time, but are required to conceal their identities by entering and leaving the court building separately, are not allowed to sit together, and are not allowed to confer with, or even make eye contact with, each other or their attorneys. The Justice Department lawyers argue that even revealing themselves as recipients of a NSL would violate national security, an argument refuted by submission of the raft of news articles identifying Christian, Chase, and Library Connection. The government argues that those news reports don’t matter because no one in Connecticut reads the primary newspaper carrying the story, the New York Times, and that surveys prove that most people don’t believe what they read in the news anyway. The Justice Department also tries to get the news articles to be kept under seal in court papers. Christian characterizes the entire proceeding as “absurd.” The court refuses to admit the plaintiff’s claim that 48 states, including Connecticut, have laws protecting the privacy of library patrons, but does admit into evidence the claims by Gonzales that there is no statutory justification for claims of privacy. In an attempt to get the gag order lifted before the Patriot Act reauthorization, the plaintiff’s attorneys make an emergency appeal directly to the Supreme Court, but are rebuffed. [Senate Judiciary Committee, 4/11/2007] In June 2006, Nocek tells a reporter, “Imagine the government came to you with an order demanding that you compromise your professional and personal principles. Imagine then being permanently gagged from speaking to your friends, your family or your colleagues about this wrenching experience.… Under the Patriot Act, the FBI demanded Internet and library records without showing any evidence or suspicion of wrongdoing to a court of law. We were barred from speaking to anyone about the matter and we were even taking a risk by consulting with lawyers.” [Interview: George Christian, 6/2/2006]
Gag Order Lifted, Case Dropped - Weeks after President Bush signs into law the Patriot Act reauthorization (see March 9, 2006), the FBI voluntarily lifts the gag order without waiting for a court order. The agency then tries to get the original ruling against the gag order vacated, an attempt that the appeals court refuses. The appellate judges are clearly disturbed by the breadth of the NSL gag provisions; one appellate judge writes, “A ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens… Unending secrecy of actions taken by government officials may also serve as a cover for possible official misconduct and/or incompetence.” The appeals court refers the case back to district court, allowing the original opinion to stand. Weeks later, the FBI withdraws its NSL, saying that it no longer needs the information it originally requested. Christian later testifies, “In doing so, they removed the Patriot Act from the danger of court review.” Christian later says that he believes the entire procedure was managed as an attempt to prevent the case from becoming public knowledge before Congress could vote on the reauthorization of the Patriot Act. [Senate Judiciary Committee, 4/11/2007]

Entity Tags: Peter Chase, Senate Judiciary Committee, National Security Letters, US Department of Justice, Library Connection, Inc., George Christian, George W. Bush, American Civil Liberties Union, Barbara Bailey, Connecticut Four, Alberto R. Gonzales, Federal Bureau of Investigation, Kevin O’Conner

Timeline Tags: Civil Liberties

Lawyers for Sibel Edmonds file a petition with the Supreme Court asking it “to provide guidance to the lower courts about the proper scope and application of the state secrets privilege (see March 9, 1953), and to prevent further misuse of the privilege to dismiss lawsuits at the pleading stage.” The petition also urges the court to affirm that the press and public may not be barred from court proceedings in civil cases without just cause. In May, the federal appeals court had closed the courtroom to the public and media. Edmonds’ lawyers include the American Civil Liberties Union and Mark Zaid of Krieger and Zaid, PLLC. If the Supreme Court rules in favor of Edmonds, she will return to the lower courts and start her case again. [Petition for a writ of certiorari. Sibel Edmonds v. Department of Justice, et all., 8/4/2005, pp. 2 pdf file; Government Executive, 8/8/2005]

Entity Tags: US Supreme Court, American Civil Liberties Union, Mark Zaid

Timeline Tags: Complete 911 Timeline

Deputy Attorney General James Comey, who has already tendered his resignation, gives his farewell speech to an assemblage in the Justice Department. Comey makes what author and reporter Charlie Savage will later call “a cryptic reference to the fights over warrantless surveillance and torture issues that he had fought alongside [former Office of Legal Counsel chief Jack] Goldsmith and the other non-team players” (see Late 2003-2005 and June 17, 2004). Comey tells the assembled employees that, during his tenure, he had dealt with issues that “although of consequence almost beyond my imagination, were invisible because the subject matter demanded it.” In these disputes, he says he worked with people whose loyalty “to the law… would shock people who are cynical about Washington.” Those people, he says, “came to my office, or my home, or called my cell phone late at night, to quietly tell me when I was about to make a mistake; they were people committed to getting it right—and to doing the right thing—whatever the price. These people know who they are. Some of them did pay a price for their commitment to [do] right, but they wouldn’t have it any other way.” [US Department of Justice, 8/15/2005; Consortium News, 2/8/2006; Savage, 2007, pp. 199] Comey will later testify that one of the people he is referring to is former Justice Department lawyer Patrick Philbin. [Savage, 2007, pp. 199]

Entity Tags: Patrick F. Philbin, Jack Goldsmith, Charlie Savage, US Department of Justice, James B. Comey Jr.

Timeline Tags: Civil Liberties

A Spanish court sentences a number of people to prison for connections to al-Qaeda. The main defendant, Imad Eddin Barakat Yarkas, is convicted of leading an al-Qaeda cell in Madrid and conspiring to commit the 9/11 attacks by hosting a meeting in Spain in July 2001 attended by Mohamed Atta, Ramzi bin al-Shibh, and others (see July 8-19, 2001). He is sentenced to 27 years in prison. [New York Times, 9/27/2005] However, in 2006, Spain’s supreme court will overturn his 9/11 conspiracy conviction, after prosecutors reverse themselves and ask that the conviction be dismissed. One of the reasons for the dismissal is that the US, which possesses evidence supporting the convictions, is reluctant to provide it (see Mid-2002-June 1, 2006). This will leave Zacarias Moussaoui the only person in the world jailed for a role in the 9/11 attacks. Yarkas will still have to serve a 12-year sentence for leading an al-Qaeda cell. [London Times, 6/1/2006] Seventeen men besides Yarkas, mostly Syrians, are also found guilty and are given sentences of six to eleven years. One of these is Tayseer Allouni, a correspondent for the Al Jazeera satellite network. He is convicted of giving $4,500 to a family of Syrian exiles in Afghanistan. The prosecutor alleged the family were al-Qaeda operatives, while Allouni argued he gave the money for humanitarian reasons. Two others, a Moroccan named Driss Chebli and a Syrian named Ghasoub al-Abrash Ghalyoun, were acquitted of being involved in the 9/11 plot, but Chebli was convicted of collaborating with a terrorist group. Ghalyoun was accused of videotaping the World Trade Center and other American landmarks in 1997 for the 9/11 plotters, but he claimed he was just a tourist (see 1998). [New York Times, 9/27/2005; Washington Post, 9/27/2005; Financial Times, 9/27/2005]

Entity Tags: Driss Chebli, Ghasoub al-Abrash Ghalyoun, Barakat Yarkas, Tayseer Allouni

Timeline Tags: Complete 911 Timeline

Senator John McCain (R-AZ), an ardent opponent of torture by US officials (see November 21, 2005), continues to press an amendment to a $440 billion defense appropriations bill that prohibits cruel, inhuman, and degrading treatment of prisoners held in US captivity (see July 24, 2005 and After). The bill also posits the US Army Field Manual as the uniform standard for interrogations by any Defense Department personnel. The Field Manual is being revised, and Pentagon sources have claimed the revisions will include a section on the importance of following the Geneva Conventions. The amendment is facing stiff opposition from the White House, which asserts that it would encroach on the power of the president as the commander in chief, and would threaten national security by reducing the ability of military interrogators to obtain critical intelligence from prisoners. On the floor of the Senate, McCain reads a letter from former Secretary of State Colin Powell, who had opposed Vice President Cheney on the issue of torture. Powell writes: “Our troops need to hear from Congress. The world will note that America is making a clear statement with respect to the expected future behavior of our soldiers.” McCain himself calls the White House’s legal theories on torture “strange,” and warns that enemies could use America’s justifications of torture as justifications for the torture of US captives. “We are Americans and we hold ourselves to humane standards of treatment of people no matter how evil or terrible they may be,” he says. Terrorists “don’t deserve our sympathy. But this isn’t about who they are. This is about who we are. These are the values that distinguish us from our enemies.” The White House continues to oppose the amendment. President Bush threatens to veto the entire bill, and Cheney circulates pro-torture talking points to friendly Congressional Republicans. Cheney, with CIA Director Porter Goss in tow, asks McCain to exempt CIA officials from the anti-torture amendment at the discretion of the president; McCain refuses. McCain is bolstered by a letter signed by over two dozen retired generals urging Congress to pass the amendment, including Powell and former Joint Chiefs chairman General John Shalikashvili. The amendment passes the Senate 90 to nine. However, the House leadership, steered by Speaker Dennis Hastert (R-IL), refuses to allow the amendment into the House version by refusing to let the House vote on it at all. It will take a House-Senate conference committee to decide the fate of the amendment. [Dubose and Bernstein, 2006, pp. 195; Savage, 2007, pp. 221]

Entity Tags: George W. Bush, Bush administration (43), Colin Powell, Dennis Hastert, US Department of Defense, Richard (“Dick”) Cheney, John McCain, Porter J. Goss, John M. Shalikashvili

Timeline Tags: Civil Liberties

David Addington.David Addington. [Source: Richard A. Bloom / Corbis]David Addington, the chief counsel for Vice President Dick Cheney, is named Cheney’s chief of staff to replace Lewis “Scooter” Libby, who was convicted of perjury and obstruction of justice in the Valerie Plame Wilson case (see February 13, 2002). [National Journal, 10/30/2005; MSNBC, 11/4/2005] Addington is described by one White House official as “the most powerful man you never heard of.” A former Justice Department official says of Addington, “He seems to have his hand in everything, and he has these incredible powers, energy, reserves in an obsessive, zealot’s kind of way.” He is, according to former Solicitor General Theodore Olson, Cheney’s “eyes, ears, and voice.” [US News and World Report, 5/21/2006] Addington is a neoconservative ideologue committed to dramatically expanding the power of the presidency, and a powerful advocate of the “unitary executive” theory of presidential power. He has been with Cheney for years, ever since Cheney chose him to serve as the Pentagon’s chief counsel while Cheney was Defense Secretary under Ronald Reagan. During that time, Addington was an integral part of Cheney’s battle to keep the Iran-Contra scandal from exploding (see 1984). [Washington Post, 10/11/2004; National Journal, 10/30/2005; MSNBC, 11/4/2005; US News and World Report, 5/21/2006] According to Larry Wilkerson, the former chief of staff to former Secretary of State Colin Powell, documentary evidence shows that Cheney’s office, and Addington in particular, were responsible for giving at least tacit approval for US soldiers to abuse and torture prisoners in Iraq (see January 9, 2002). In an administration devoted to secrecy, Addington stands out in his commitment to keeping information away from the public. [Washington Post, 10/11/2004] Though Addington claims to have a lifelong love affair with the Constitution, his interpretation of it is somewhat unusual. One senior Congressional staffer says, “The joke around here is that Addington looks at the Constitution and sees only Article II, the power of the presidency.” [US News and World Report, 5/21/2006] Addington’s influence in the White House is pervasive. He scrutinizes every page of the federal budget, hunting for riders that might restrict the power of the president. He worked closely with Gonzales to oppose attempts by Congress to pry information from the executive branch, and constantly battles the State Department, whose internationalist philosophy is at odds with his and Cheney’s own beliefs. [Washington Post, 10/11/2004] Former Reagan Justice Department official Bruce Fein calls Addington the “intellectual brainchild” of overreaching legal assertions that “have resulted in actually weakening the presidency because of intransigence.” According to Fein, Addington and Cheney are doing far more than reclaiming executive authority, they are seeking to push it farther than it has ever gone under US constitutional authority. They have already been successful in removing executive restraints formerly in place under the War Powers Act, anti-impoundment legislation, the legislative veto and the independent counsel statute. “They’re in a time warp,” Fein says. “If you look at the facts, presidential powers have never been higher.” [Washington Post, 10/11/2004] “He thinks he’s on the side of the angels,” says a former Justice Department official. “And that’s what makes it so scary.” [US News and World Report, 5/21/2006]

Entity Tags: Saddam Hussein, US Department of State, Theodore (“Ted”) Olson, US Department of Justice, US Department of Defense, Ronald Reagan, Lewis (“Scooter”) Libby, National Security Council, Bruce Fein, Bradford Berenson, 9/11 Commission, Richard (“Dick”) Cheney, David S. Addington, John Bellinger, Jack Goldsmith, Lawrence Wilkerson, John C. Yoo, Valerie Plame Wilson

Timeline Tags: Civil Liberties, Niger Uranium and Plame Outing

Mustafa Setmarian Nasar.Mustafa Setmarian Nasar. [Source: Public domain]Around this date, al-Qaeda leader Mustafa Setmarian Nasar, a.k.a. Abu Musab al-Suri, is arrested in a raid in Quetta, Pakistan. The US posted a $5 million reward for his capture in 2004. A red-haired, light-skinned Syrian citizen, he also is a citizen of Spain and long-time resident there. The raid takes place in a Quetta shop used as an office for the Madina Trust, a Pakistani charity that is linked to the Pakistani militant group Jaish-e-Mohammed. A man arrested with Nasar is believed to be a Jaish-e-Mohammed member; another man is killed in the raid. [CNN, 11/5/2005; Associated Press, 11/5/2005; Associated Press, 5/2/2006] He is believed to have taught the use of poisons and chemicals at Afghanistan training camps and he is suspected of a role in the 2004 Madrid train bombings (see 7:37-7:42 a.m., March 11, 2004) and the 7/7 London bombings (see July 7, 2005). But he is best known for his strategic writings. The Washington Post calls him “one of the jihad movement’s prime theorists.” He long advocated a decentralized militant movement, and was often critical of bin Laden’s and al-Qaeda’s mistakes. He says, “Al-Qaeda is not an organization, it is not a group, nor do we want it to be. It is a call, a reference, a methodology.” He is soon flown out of Pakistan and into US custody. In 2006, US intelligence sources will claim that he is now in the secret custody of another unnamed country. [Washington Post, 5/23/2006; New Yorker, 9/4/2006] In 2006, Baltasar Garzon, a Spanish judge involved in many al-Qaeda related cases, will complain that the US has not shared any information about Nasar since his secret arrest. He adds, “I don’t know where he is. Nobody knows where he is. Can you tell me how this helps the struggle against terrorism?” [New York Times, 6/4/2006]

Entity Tags: Baltasar Garzon, Mustafa Setmarian Nasar, Al-Qaeda, Jaish-e-Mohammed

Timeline Tags: Complete 911 Timeline

By November 2005, when the CIA destroys videotapes of the interrogations of al-Qaeda leaders Abu Zubaida and Abd al-Rahim al-Nashiri (see November 2005), there are numerous reasons to not destroy them, some of them possibly legal requirements. [New York Times, 12/8/2007]
bullet In February 2003, Porter Goss, chairman of the House Intelligence Committee in 2003, Congressperson Jane Harman, the top Democrat on the committee, requested that the videotapes be preserved (see February 2003).
bullet Beginning in 2003 and continuing through 2005, White House officials, including White House deputy chief of staff Harriet Miers, requested that the videotapes be preserved (see Between 2003-Late 2005).
bullet In 2003, Justice Department lawyers also advised the CIA to preserve the videotapes (see 2003).
bullet Beginning in 2003, lawyers in the Zacarias Moussaoui trial have requested access to evidence of interrogations of al-Qaeda leaders like Zubaida. The CIA twice misinformed the judge in the trial about the existence of the videotapes (see May 7-9, 2003 and November 3-14, 2005). The trial will not be concluded until mid-2006 (see May 3, 2006).
bullet In September 2004, a judge rules the CIA has to preserve all records about the treatment of detainees overseas, as part of a lawsuit filed by the American Civil Liberties Union. The videotapes of Zubaida and al-Nashiri would clearly qualify, since both are held overseas (see September 15, 2004).
bullet Beginning in May 2005, Sen. Jay Rockefeller of the Senate Intelligence Committee asked the CIA to preserve over 100 documents about the CIA interrogation program. One of the documents requested is a report about the videotapes of interrogations and their possible illegality (see May-September 2005).
bullet In June and July 2005, two judges ordered the CIA to preserve all evidence relevant to detainees being held in Guantanamo prison. The interrogation videotapes are indirectly relevant because the cases of some detainees hinge on their alleged ties to Zubaida (see June-July 2005).
bullet In the summer of 2005, Director of National Intelligence John Negroponte met with CIA Director Porter Goss and “strongly advised” him not to allow the videotapes to be destroyed (see Summer 2005).
bullet The videotapes are also needed for a trial of Jose Padilla, who is indicted in November 2005 (see November 22, 2005).
An unnamed official familiar with the case will comment, “Everybody from the top on down told them not to do it and still they went ahead and did it anyway.” [Los Angeles Times, 12/9/2007] Despite this, many later reports will indicate that the National Clandestine Service (NCS), the CIA unit that takes the decision to destroy the tapes, believes the advice about their destruction is ambiguous. NCS head Jose Rodriguez will be said to feel he never gets a straight answer to the question of whether the tapes should be destroyed, despite extensive correspondence about the issue at the CIA. [Newsweek, 12/11/2007; Newsweek, 12/24/2007] A former intelligence official will say, “They never told us, ‘Hell, no.’ If somebody had said, ‘You cannot destroy them,’ we would not have destroyed them.” [New York Times, 12/11/2007]

Entity Tags: Central Intelligence Agency, Jose Rodriguez, Jr., Abd al-Rahim al-Nashiri, Abu Zubaida, National Clandestine Service

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

Larry Wilkerson, the former chief of staff to former Secretary of State Colin Powell, says that he has seen documents that show a “visible audit trail” that links the practice of abuse and torture of prisoners by US soldiers directly back to the office of Vice President Dick Cheney. “There’s no question in my mind,” he says, “where the philosophical guidance and the flexibility in order to [torture prisoners] originated—in the vice president of the United States’ office.” Wilkerson, while in Powell’s office, had access to a raft of documents concerning the allegations of prisoner abuse. He says that Cheney and Defense Secretary Donald Rumsfeld led a quiet push to deny prisoners Geneva Convention protections. According to Wilkerson, Cheney’s then-chief counsel, David Addington (now Cheney’s chief of staff—see October 28, 2005), helped begin the process. Addington “was a staunch advocate of allowing the president in his capacity as commander in chief to deviate from the Geneva Conventions.” Cheney, Rumsfeld, Addington, and others “began to authorize procedures within the armed forces that led to, in my view, what we’ve seen,” Wilkerson says. The Pentagon’s contentions that such prisoner abuses, particularly at Abu Ghraib, were limited to a few soldiers of low rank are false, he says: “I’m privy to the paperwork, both classified and unclassified, that the secretary of state asked me to assemble on how this all got started, what the audit trail was, and when I began to assemble this paperwork, which I no longer have access to, it was clear to me that there was a visible audit trail from the vice president’s office through the secretary of defense down to the commanders in the field that in carefully couched terms—I’ll give you that—that to a soldier in the field meant two things: We’re not getting enough good intelligence and you need to get that evidence, and, oh, by the way, here’s some ways you probably can get it. And even some of the ways that they detailed were not in accordance with the spirit of the Geneva Conventions and the law of war. You just—if you’re a military man, you know that you just don’t do these sorts of things because once you give just the slightest bit of leeway, there are those in the armed forces who will take advantage of that.” [Washington Post, 11/4/2005; Savage, 2007, pp. 220]

Entity Tags: Geneva Conventions, Lawrence Wilkerson, Richard (“Dick”) Cheney, Colin Powell, Donald Rumsfeld, David S. Addington

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

Brett Tolman.Brett Tolman. [Source: ABC4 (.com)]Brett Tolman, a Republican Senate Judiciary Committee official, tells Assistant Attorney General William Moschella that he will perform a “comprehensive fix” to the USA Patriot Act reauthorization coming up for approval in Congress (see March 9, 2006). Tolman and Moschella are referring to a provision in the reauthorization legislation that would allow the attorney general to appoint interim US Attorneys on an indefinite basis without having them go through Senate confirmation, and remove the ability of a federal court to appoint a US Attorney (see July 2005 - March 2006). Moschella suggests Tolman use the “comprehensive fix” of repealing Section 546 of Title 28 of the United States Code, subsections C and D, and replacing them with the following language: “A person appointed as United States Attorney under this section may serve until the qualification of a United States Attorney for such district appointed by the president under section 541 of this title.” Late the same evening, Tolman receives an email from Moschella instructing him to quietly insert the provision in the USA Patriot Act reauthorization bill that would eliminate a 120-day limit for “interim” US Attorneys to serve without Senate confirmation. In essence, the provision would allow such “interims” to serve indefinitely, cutting the Senate entirely out of the process of naming US Attorneys and allowing the attorney general to make political appointments without oversight. Tolman replies, “I will get the comprehensive fix done.” He slips the provision into a draft of the bill while it is in conference committee. None of the members notice the provision, and it is part of the bill as signed into law in March 2006 (see March 9, 2006). Tolman himself is one of the first beneficiaries of the new provision, becoming the US Attorney for Utah. When the new provision comes to light in early 2007, both chambers of Congress vote overwhelmingly to repeal it. This is one of numerous “stealth provisions” the White House will have inserted into legislation with the help of compliant Congressional Republicans and staffers. [Savage, 2007, pp. 316; US Department of Justice, 3/23/2007 pdf file] Moschella will later take the credit for the provision, and will tell reporters that he made the change on behalf of the Justice Department “without the knowledge or coordination of his superiors at the Justice Department or anyone at the White House.” [Talking Points Memo, 2011]

Entity Tags: William E. Moschella, USA Patriot Act, Senate Judiciary Committee, Bush administration (43), Brett Tolman, US Department of Justice

Timeline Tags: Civil Liberties

Attorney General Alberto Gonzales sends a letter to a federal judge in Montana, assuring him that US Attorney William W. Mercer is not violating federal law by spending almost all of his time in Washington as a temporary Justice Department official. The same day, Mercer has a Republican Senate staffer insert language into the USA Patriot reauthorization bill (see March 9, 2006) that would retroactively change the rules and allow federal prosecutors such as himself to live outside their districts and serve in other positions. Congress will include the language in the bill when it passes the legislation. Mercer and a small number of other Justice Department employees are the only ones to benefit from the provision. In 2007, when the provision is revealed to the public, Justice Department officials will say the provision was necessary to ensure that prosecutors such as Mercer could fill temporary positions in Washington, Iraq, and elsewhere. Critics will accuse Gonzales of being, in the Washington Post’s words, “less than truthful” about the actions of himself, his staff, and the White House. The question surrounding Mercer involves residency. Mercer is the US Attorney for Montana, appointed in 2001. In June 2005, he was appointed to serve as principal associate deputy attorney general, at Gonzales’s request. US District Chief Judge Donald W. Molloy of Billings has become increasingly irked at Mercer’s absence from Montana for the last two years. In October, Molloy wrote Gonzales to say that Mercer was violating federal law because he “no longer resides in Montana” and was living with his family in the Washington area. Gonzales replies three weeks later to tell Molloy that Mercer “is in compliance with the residency requirement” under federal law because he “is domiciled there, returns there on a regular basis, and will live there full-time as soon as his temporary assignment is completed.” At the same time Gonzales writes Molloy, Mercer has a Senate staffer, Brett Tolman, insert the provision into the Patriot Act legislation. Tolman is the counsel for Senator Arlen Specter (R-PA), chairman of the Senate Judiciary Committee. Tolman will later be named the US Attorney for Utah. Specter’s office will characterize the provision as “unremarkable” and aboveboard. Mercer currently serves as acting associate attorney general and has been nominated for the position on a permanent basis. He spends only about three days a month in Montana and delegates almost all of his duties as US Attorney to underlings. [ePluribus Media, 3/26/2007; Washington Post, 5/2/2007] Mercer will be nominated to serve as associate attorney general, the third-highest position in the Justice Department, in September 2006. He will not be confirmed for the position by the Senate, as confirmation would require his leaving the position of US Attorney. In June 2007, Mercer will resign from the associate attorney general position, retaining his position as US Attorney for Montana (see June 22, 2007). [ePluribus Media, 3/26/2007; Washington Post, 6/22/2007]

Entity Tags: Donald W. Molloy, Alberto R. Gonzales, Brett Tolman, Washington Post, Arlen Specter, Senate Judiciary Committee, William W. Mercer, US Department of Justice

Timeline Tags: Civil Liberties

McCain speaking against torture on Fox News.McCain speaking against torture on Fox News. [Source: Daily Gadfly (.com)]Senator John McCain (R-AZ), a former prisoner of war during the Vietnam War and a victim of torture, writes an impassioned op-ed for Newsweek exhorting the US not to resort to torture in its interrogations of terror suspects. He writes: “I do, respectfully, take issue with the position that the demands of this war require us to accord a lower station to the moral imperatives that should govern our conduct in war and peace when they come in conflict with the unyielding inhumanity of our vicious enemy.… We should not torture or treat inhumanely terrorists we have captured. The abuse of prisoners harms, not helps, our war effort.”
Produces False Information - He gives numerous reasons: abusing prisoners does not produce reliable information, but instead “often produces bad intelligence because under torture a person will say anything he thinks his captors want to hear—whether it is true or false—if he believes it will relieve his suffering.” McCain recounts his own example of providing false information under torture, giving his captors the names of the Green Bay Packers’ offensive line instead of the names of his flight squadron. “It seems probable to me that the terrorists we interrogate under less than humane standards of treatment are also likely to resort to deceptive answers that are perhaps less provably false than that which I once offered.”
Betrays America's 'Commitment to Basic Humanitarian Values' - Moreover, McCain writes, America’s “commitment to basic humanitarian values affects—in part—the willingness of other nations to do the same. Mistreatment of enemy prisoners endangers our own troops who might someday be held captive.” We cannot expect al-Qaeda and other such enemies to be “bound by the principle of reciprocity,” but “we should have concern for those Americans captured by more traditional enemies, if not in this war then in the next.” Global public criticism of North Vietnam’s brutality towards US prisoners resulted in a substantial decrease in their abuse of POWs. The war against terrorism is “a war of ideas,” he writes, “a struggle to advance freedom in the face of terror in places where oppressive rule has bred the malevolence that creates terrorists. Prisoner abuses exact a terrible toll on us in this war of ideas. They inevitably become public, and when they do they threaten our moral standing, and expose us to false but widely disseminated charges that democracies are no more inherently idealistic and moral than other regimes.” To defeat the idea of terrorism, “we must prevail in our defense of American political values as well. The mistreatment of prisoners greatly injures that effort.”
'We Are Different and Better than Our Enemies' - McCain writes that while he does not “mourn the loss of any terrorist’s life… [w]hat I do mourn is what we lose when by official policy or official neglect we allow, confuse, or encourage our soldiers to forget that best sense of ourselves, that which is our greatest strength—that we are different and better than our enemies, that we fight for an idea, not a tribe, not a land, not a king, not a twisted interpretation of an ancient religion, but for an idea that all men are created equal and endowed by their Creator with inalienable rights.”
Waterboarding Is Torture - McCain states flatly that any interrogation technique that simulates an execution, including waterboarding, is torture. “[I]f you gave people who have suffered abuse as prisoners a choice between a beating and a mock execution, many, including me, would choose a beating. The effects of most beatings heal. The memory of an execution will haunt someone for a very long time and damage his or her psyche in ways that may never heal. In my view, to make someone believe that you are killing him by drowning is no different than holding a pistol to his head and firing a blank. I believe that it is torture, very exquisite torture.”
Exceptions Do Not Require New Laws - There is always the extreme circumstance bandied about in discussions: what should be done with a terror suspect who holds critical information about an imminent terrorist attack? While such an extreme circumstance may well require extreme interrogation methods, McCain writes, “I don’t believe this scenario requires us to write into law an exception to our treaty and moral obligations that would permit cruel, inhumane, and degrading treatment. To carve out legal exemptions to this basic principle of human rights risks opening the door to abuse as a matter of course, rather than a standard violated truly in extremis. It is far better to embrace a standard that might be violated in extraordinary circumstances than to lower our standards to accommodate a remote contingency, confusing personnel in the field and sending precisely the wrong message abroad about America’s purposes and practices.” [Newsweek, 11/21/2005]

Entity Tags: John McCain

Timeline Tags: Torture of US Captives

The Supreme Court declines, without comment, to hear the case (see August 4, 2005) brought by former FBI translator Sibel Edmonds. [New York Times, 11/28/2005; Reuters, 11/28/2005] The decision puts an end to Edmonds’ legal efforts to hold the bureau accountable for its failure to address several security issues raised by Edmonds in late 2001 and early 2002 (see December 2, 2001 and Afternoon February 12, 2002, respectively). On August 4, Edmonds had filed a petition with the Supreme Court asking it “to provide guidance to the lower courts about the proper scope and application of the state secrets privilege (see March 9, 1953), and to prevent further misuse of the privilege to dismiss lawsuits at the pleading stage.” The petition also urged the court to affirm that the press and public may not be barred from court proceedings in civil cases without just cause. (In May, the federal appeals court had closed the courtroom to the public and media.) Had the Supreme Court had ruled in favor of Edmonds, she would have been able to return to the lower courts and start her case again. [Petition for a writ of certiorari. Sibel Edmonds v. Department of Justice, et all., 8/4/2005, pp. 2 pdf file; Government Executive, 8/8/2005]

Entity Tags: US Supreme Court, Sibel Edmonds

Timeline Tags: Complete 911 Timeline

As Congress debates legislation that will outlaw “cruel, inhuman, and degrading” treatment of terrorist suspects and detainees in US custody, the Justice Department issues a secret opinion, one that few lawmakers even know exists, ruling that none of the CIA’s interrogation methods violate that standard. The Justice Department has already issued one secret opinion countermanding the Bush administration’s stated position that torture is “abhorrent” (see February 2005). Both rulings are efforts by Attorney General Alberto Gonzales and White House officials to realign the Justice Department with the White House after an in-house revolt by many Justice officials threw administration policies on torture and domestic surveillance into doubt (see Late 2003-2005). Though the public debate on torture becomes ever more pervasive during President Bush’s second term, the two rulings will remain in effect through the end of 2007 and beyond, helping the White House give US officials the broadest possible legal latitude for abusing and torturing prisoners. As late as October 2007, the White House will insist that it has always followed US and international law in its authorization of interrogation practices. Those assurances will be countered by an array of current and former officials involved in counterterrorism (see October 3, 2007). [New York Times, 10/4/2007] In 2007, Jameel Jaffer of the American Civil Liberties Union (ACLU) will say in conjunction with a lawsuit filed against the Justice Department’s interrogation practices, “These torture memos should never have been written, and it is utterly unacceptable that the administration continues to suppress them while at the same time declaring publicly that it abhors torture. It is now obvious that senior administration officials worked in concert over a period of several years to evade and violate the laws that prohibit cruelty and torture. Some degree of accountability is long overdue.” The ACLU will also note that the administration had failed to disclose the existence of the two opinions in its court filings, a failure characterized by the administration as an accidental oversight. [Harper's, 11/7/2007]

Entity Tags: Jameel Jaffer, Alberto R. Gonzales, American Civil Liberties Union, Bush administration (43), George W. Bush, US Department of Justice, Central Intelligence Agency

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

Arthur Sulzberger.Arthur Sulzberger. [Source: New York Times]George W. Bush summons New York Times publisher Arthur Sulzberger and Times editor Bill Keller to the Oval Office to try to dissuade them from running a landmark story revealing the NSA’s illegal wiretapping program (see December 15, 2005) that he authorized in 2002 (see Early 2002). In the meeeting, Bush warns Sulzberger and Keller that “there’ll be blood on your hands” if another terrorist attack were to occur, obviously implying that to reveal the nature of the program would invite terrorist strikes. Bush is unsuccessful in his attempt to quash the story. [Newsweek, 12/21/2005; Newsweek, 12/22/2008]

Entity Tags: New York Times, Arthur Sulzberger, George W. Bush, National Security Agency, Bill Keller

Timeline Tags: Civil Liberties

An FBI investigation into Jane Harman (D-CA), the ranking minority member of the House Intelligence Committee, is halted by Attorney General Alberto Gonzales, according to three former top national security officials. The investigation was to determine whether she agreed to use her influence on behalf of accused Israeli spies in return for Israeli support in being named chairman of the committee (see Summer 2005, October 2005 and December 2, 2006). In contrast to the former officials’ claims, the media will report that the investigation is ended due to “lack of evidence” of impropriety or illegal behavior on Harman’s part. However, according to the former officials, Gonzales wants Harman to help defend the administration’s warrantless wiretapping program, which is about to be revealed by a long-simmering New York Times story (see December 15, 2005). The evidence against Harman includes NSA wiretaps of a conversation between her and an Israeli agent. Reporter Jeff Stein will write, “As for there being ‘no evidence’ to support the FBI probe, a source with first-hand knowledge of the wiretaps called that ‘bull****.’” Another former national security officer will confirm Harman’s presence on the wiretaps. “It’s true,” the official will say. “She was on there.” Justice Department attorneys in the intelligence and public corruption units have concluded that Harman had committed what they called a “completed crime,” meaning there was evidence to show that she had attempted to complete it; they were prepared to open a case on her that would include wiretaps approved by the Foreign Intelligence Surveillance Court (FISC). CIA Director Porter Goss certified the FISA wiretapping request, and decided to inform House Speaker Dennis Hastert (R-IL) and ranking House Democrat Nancy Pelosi (D-CA) of the impending FBI investigation. At this point, say Stein’s sources, Gonzales intervenes to stop the investigation. Two officials with knowledge of the events will say that, in Gonzales’s words, he “needed Jane” to help support the warrantless wiretapping program once it became public knowledge. Gonzales tells Goss that Harman had helped persuade the Times to refrain from publishing the story in late 2004 (see Early November 2004, December 6, 2005, and Mid-2005), and although the Times would no longer wait on the story, Harman could be counted on to help defend the program. She will do just that (see December 21, 2005 and February 8-12, 2006). Hastert and Pelosi are never told of the FBI investigation. Stein will also learn that Goss’s successor, Michael Hayden, will later be informed of the potential investigation, but choose to take no action. Likewise, Director of National Intelligence John Negroponte will oppose any such investigation. Former officials who will pursue the Israeli espionage case for years will say, in Stein’s words, that “Harman dodged a bullet… [s]he was protected by an administration desperate for help.” A recently retired national security official closely involved in the investigation will add: “It’s the deepest kind of corruption. It’s a story about the corruption of government—not legal corruption necessarily, but ethical corruption.” [Congressional Quarterly, 4/19/2009]

Entity Tags: Jeff Stein, Federal Bureau of Investigation, Dennis Hastert, Alberto R. Gonzales, Foreign Intelligence Surveillance Court, Jane Harman, Michael Hayden, Porter J. Goss, John Negroponte, House Intelligence Committee, New York Times, Nancy Pelosi

Timeline Tags: Civil Liberties

The Army adopts a new, classified set of interrogation methods that some feel may change the nature of the debate over cruel and inhuman treatment of detainees in US custody. The Detainee Treatment Act (DTA—see December 30, 2005), which bases its definition of torture in part on Army standards, is currently wending its way through Congress. The new set of instructions are being added to the revised Army Field Manual, after they are approved by undersecretary of defense Stephen Cambone. The addendum provides exact details on what kinds of interrogation procedures can and cannot be used, and under what circumstances, pushing the legal limit of what interrogations can be used in ways that the Army has never done before. Some military observers believe that the new guidelines are an attempt by the Army to undercut the DTA, and many believe the bill’s sponsor, Senator John McCain (R-AZ) will be unhappy with the addendum. “This is a stick in McCain’s eye,” one official says. “It goes right up to the edge. He’s not going to be comfortable with this.” McCain has not yet been briefed on the contents of the new guidelines. McCain spokesman Mark Salter says, “This is politically obtuse and damaging. The Pentagon hasn’t done one molecule of political due diligence on this.” One Army officer says that the core of the definition of torture—what is and is not “cruel, inhumane, and degrading” treatment—“is at the crux of the problem, but we’ve never defined that.” The new Army Field Manual specifically prohibits such tactics as stress positioning, stripping prisoners, imposing dietary restrictions, using police dogs to intimidate prisoners, and sleep deprivation. The new manual is expected to be issued before the end of the year. [New York Times, 12/14/2005] The day after this is reported, President Bush agrees not to veto the DTA (see December 15, 2005).

Entity Tags: Stephen A. Cambone, Detainee Treatment Act, US Department of Defense, John McCain, US Department of the Army

Timeline Tags: Torture of US Captives, 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

Times executive editor Bill Keller.Times executive editor Bill Keller. [Source: New York Times]The New York Times’s executive editor, Bill Keller, defends his paper’s decision to reveal the Bush administration’s warrantless wiretapping program, conducted through the NSA (see December 15, 2005), after holding the story for over a year. Keller writes: “We start with the premise that a newspaper’s job is to publish information that is a matter of public interest. Clearly a secret policy reversal that gives an American intelligence agency discretion to monitor communications within the country is a matter of public interest.… A year ago, when this information first became known to Times reporters, the administration argued strongly that writing about this eavesdropping program would give terrorists clues about the vulnerability of their communications and would deprive the government of an effective tool for the protection of the country’s security. Officials also assured senior editors of The Times that a variety of legal checks had been imposed that satisfied everyone involved that the program raised no legal questions. As we have done before in rare instances when faced with a convincing national security argument, we agreed not to publish at that time. We also continued reporting, and in the ensuing months two things happened that changed our thinking. First, we developed a fuller picture of the concerns and misgivings that had been expressed during the life of the program. It is not our place to pass judgment on the legal or civil liberties questions involved in such a program, but it became clear those questions loomed larger within the government than we had previously understood. Second, in the course of subsequent reporting we satisfied ourselves that we could write about this program—withholding a number of technical details—in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record. The fact that the government eavesdrops on those suspected of terrorist connections is well-known. The fact that the NSA can legally monitor communications within the United States with a warrant from the Foreign Intelligence Surveillance Court is also public information. What is new is that the NSA has for the past three years had the authority to eavesdrop on Americans and others inside the United States without a warrant. It is that expansion of authority—not the need for a robust anti-terror intelligence operation—that prompted debate within the government, and that is the subject of the article.” [CNN, 12/16/2005]

Entity Tags: Foreign Intelligence Surveillance Court, New York Times, George W. Bush, Bill Keller

Timeline Tags: Civil Liberties

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

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

Timeline Tags: Civil Liberties

After the NSA’s warrantless wiretapping program is revealed (see Early 2002 and December 15, 2005), some commentators criticize the program. Americans have fundamental Constitutional protections that are enforceable in court whether their conversations are domestic or international, says law scholar Geoffrey Stone. Stone says that President Bush’s emphasis that NSA wiretapping only takes place on US calls to overseas phones or overseas e-mails “is no different, as far as the law is concerned, from saying we only do it on Tuesdays.” Former FBI national security law chief Michael Woods, who served in the position when Bush signed the NSA directive, calls the program “very dangerous.” Though Woods says the program was justifiable in the immediate aftermath of 9/11, “[By now] we ought to be past the time of emergency responses. We ought to have more considered views now…. We have time to debate a legal regime and what’s appropriate.” [Washington Post, 12/18/2005] Kate Martin, director of the Center for National Security Studies, says the secret order may amount to Bush authorizing criminal activity in direct violation of FISA. “This is as shocking a revelation as we have ever seen from the Bush administration,” she says. “It is, I believe, the first time a president has authorized government agencies to violate a specific criminal prohibition and eavesdrop on Americans.” The American Civil Liberties Union’s Caroline Frederickson says of the program, “It’s clear that the administration has been very willing to sacrifice civil liberties in its effort to exercise its authority on terrorism, to the extent that it authorizes criminal activity.” [Washington Post, 12/16/2005]

Entity Tags: Center for National Security Studies, Geoffrey Stone, American Civil Liberties Union, National Security Agency, Caroline Frederickson

Timeline Tags: Civil Liberties

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

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

Timeline Tags: Civil Liberties

DARPA logo.DARPA logo. [Source: Duke University]The computer and technology experts at Ars Technica, a well-regarded Web publication which describes itself as focusing on “the art of technology,” speculate on the technology behind the NSA warrantless wiretapping program recently revealed to the public (see December 15, 2005). The Ars Technica experts believe that Senator Jay Rockefeller (D-WV)‘s 2003 comparison between the program and the Total Information Awareness (TIA) project (see March 2002) is the most apt. They believe that the NSA wiretapping program may be built upon the foundation of a shadowy, highly classified surveillance program called Echelon. They write, “This system’s purpose would be to monitor communications and detect would-be terrorists and plots before they happen… This project is not interested in funding ‘evolutionary’ changes in technology, e.g., bit-step improvements to current data mining and storage techniques. Rather, the amount of data that the directors are anticipating (petabytes!) would require massive leaps in technology (and perhaps also some massive leaps in surveillance laws).” [Ars Technica, 12/20/2005; Ars Technica, 2007] Data storage measured in petabytes is a colossal capacity; a petabyte is 1,024 terabytes, and a single terabyte is 1,024 gigabytes, the usual measurement for hard drive capacity. [TechTerms, 2007] The Ars Technica experts continue, “According to DARPA, such data collection ‘increases information coverage by an order of magnitude,’ and ultimately ‘requires keeping track of individuals and understanding how they fit into models.’” They go on to note that the NSA wiretapping program was instituted shortly after the TIA project was quashed by Congress, and say they believe the NSA program is an extension and an outgrowth of TIA. They note that “the FBI requested the legal authorization to do very high-volume monitoring of digital calls” in 1995, that there is “no way for the judicial system to approve warrants for the number of calls that the FBI wanted to monitor,” and that the FBI “could never hire enough humans to be able to monitor that many calls simultaneously, which means that they’d have to use voice recognition technology to look for ‘hits’ that they could then follow up on with human wiretaps.” The Ars Technica experts believe the NSA is using “some kind of high-volume, automated voice recognition and pattern matching system,” employing a form of “smart filtering” that would weed through perhaps hundreds of thousands of computer-monitored calls and turning a fraction of those calls over to human analysts for evaluation: “[Y]es, this kind of real-time voice recognition, crude semantic parsing and pattern matching is doable with today’s technology, especially when you have a budget like the NSA.” In a follow-up, Ars Technica technology specialist and self-described conservative and “privacy nazi” Jon Stokes writes of his own concerns over the program, noting that the program is too wide-reaching and too blunt to actually catch many real terrorists, and that the program is a tremendous intrusion into Americans’ fundamental privacy: “The problem is not that such large-scale industrial fishing invariably catches a few dolphins along with the tuna, but that between 99.999 and 100 percent of what you’re going to get is dolphin.” Stokes also warns that such an intrusive surveillance program will not only violate privacy rights, but be quite ineffective: “As the TSA, with its strip-searching of people’s elderly grandparents, abundantly proves every holiday season, blunt instruments and scorched earth tactics are of dubious value in catching genuine bad actors. In fact, blunt instruments and wide nets are the easiest for professional bad guys to evade. All you need to beat such surveillance tools is patience and know-how.…Blunt instruments like airport facial recognition software and random subway bag searches produce much more noise than they do signal, and any engineer or computer scientist worth his or her salt will tell you that an intelligent, targeted, low-tech approach beats a brute-force high-tech approach every time. There is no high-tech substitute for human intelligence gathering. In fact…an overload of crudely processed information is actually more likely to lead an analyst astray than it is to produce any useful insight.…In the end, brute force security techniques are not only corrosive to democratic values but they’re also bad for national security. They waste massive resources that could be spent more effectively elsewhere, and they give governments and countries a false sense of security that a savvy enemy can exploit to devastating effect.…[I]t’s not just enough to have sound intelligence; you also need political leaders who have the wisdom to use that intelligence appropriately.” [Ars Technica, 12/20/2005]

Entity Tags: Transportation Safety Administration, Total Information Awareness, Federal Bureau of Investigation, John D. Rockefeller, Defense Advanced Research Projects Agency, Jon Stokes, National Security Agency

Timeline Tags: Civil Liberties

Judge James Robertson.Judge James Robertson. [Source: US Courts.gov]US District Judge James Robertson resigns from the Foreign Intelligence Surveillance Court (FISC), a special, secret court set up to oversee government surveillance operations. Robertson refuses to comment on his resignation from FISC, but two of Robertson’s associates say that Robertson’s resignation stems from his deep concerns that the NSA’s warrantless domestic wiretapping program (see Early 2002) is not legal, and has tainted the work of the court. Robertson, formerly one of ten “revolving” members of FISC who periodically rotate in and out of duty on the court, continues to serve as a Washington, DC district judge. Colleagues of Robertson say that he is concerned that information gained from the warrantless surveillance under Bush’s program subsequently could have been used to obtain warrants under the FISA program, a practice specifically prohibited by the court. Robertson, a Clinton appointee selected for FISC by Chief Justice William Rehnquist, has also been critical of the Bush administration’s treatment of detainees at the Guantanamo Bay prison camp, and recently issued a decision that sidetracked Bush’s use of military tribunals for some Guantanamo detainees (see November 8, 2004). Even though Robertson was hand-picked for FISC by the deeply conservative Rehnquist, who expressly selected judges who took an expansive view of wiretapping and other surveillance programs, [Associated Press, 12/21/2005] some conservative critics such as Jim Kouri, a vice-president of the National Association of Chiefs of Police, call Robertson a “left-leaning, liberal” “Clintonista” jurist with ties to “ultra-liberal” civil rights associations and a desire for media attention (though Robertson has refused to speak to the press about his resignation). Critics also demand that less attention be directed at the NSA wiretapping program and more on finding out who leaked the information that led to the New York Times’s recent revelatory articles on the program (see Early 2002). GOP strategist Mike Baker says in response to Robertson’s resignation, “Only the Democrats make confirmations and appointments of people by Republican President [sic] a question of ideology. The news media try to portray [Robertson] as non-partisan. He’s as liberal as they come and as partisan as they come.” [Men's News, 12/23/2005] Presiding judge Colleen Kollar-Kotelly is arranging for a classified briefing of all the remaining FISC judges on the wiretapping program, partly in order to bring any doubts harbored by other justices into the open. Sources say Kollar-Kotelly expects top NSA and Justice Department officials to outline the program for the judges. No one on FISC except for Kollar-Kotelly and her predecessor, Judge Royce Lambeth, have ever been briefed on the program. If the judges are not satisfied with the information provided in this briefing, they could take action, which could include anything from demanding proof from the Justice Department that previous wiretaps were not tainted, could refuse to issue warrants based on secretly-obtained evidence, or, conceivably, could disband the entire court, especially in light of Bush’s recent suggestions that he has the power to bypass the court if he so desires. [Washington Post, 12/22/2005]

Entity Tags: US Department of Justice, Royce Lambeth, William Rehnquist, National Security Agency, Jim Kouri, Mike Baker, Foreign Intelligence Surveillance Court, George W. Bush, James Robertson, Colleen Kollar-Kotelly

Timeline Tags: Civil Liberties

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

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

Timeline Tags: Civil Liberties

Suzanne Spaulding, a former counsel for the CIA, the Senate and House intelligence commission, and executive director of the National Terrorism Commission from 1999 through 2000, writes an op-ed criticizing the Bush administration for its domestic surveillance program. She writes that the three main sources of oversight and restraint on Bush’s unfettered efforts to monitor US citizens—Congress, the judiciary, and the American people—have failed to halt what she calls “this extraordinary exercise of presidential power.” Spaulding, who will testify along similar lines before the Senate over a year later (see April 11, 2007), writes, “Ironically, if it is ultimately determined that this domestic surveillance program reflects the exercise of unchecked power in contravention of law, it will wind up weakening the presidency. Once again, we will confront the challenge of restoring Americans’ faith in the rule of law and our system of checks and balances.” The pretense of oversight by the administration, in providing limited and perhaps misleading briefings on the program only to the so-called “Gang of Eight” Congressional leaders, is superficial and ineffective, she writes; the entire process “effectively eliminates the possibility of any careful oversight.” She notes that because of the severe restrictions both in the information doled out to these Congressional leaders, and their strict prohibition on discussing the information with anyone else, even other intelligence panel members, “[i]t is virtually impossible for individual members of Congress, particularly members of the minority party, to take any effective action if they have concerns about what they have heard in one of these briefings. It is not realistic to expect them, working alone, to sort through complex legal issues, conduct the kind of factual investigation required for true oversight and develop an appropriate legislative response.” Congressional oversight is key to retaining the trust of the US citizenry, she writes, and adds that that particular principle was well understood at the CIA while she was there. Oversight “is vital for a secret agency operating in a democracy. True oversight helps clarify the authority under which intelligence professionals operate. And when risky operations are revealed, it is important to have members of Congress reassure the public that they have been overseeing the operation. The briefings reportedly provided on the National Security Agency (NSA) surveillance program reflect, instead, a ‘check the box’ mentality—allowing administration officials to claim that they had informed Congress without having really achieved the objectives of oversight.” While those few members of Congress are given little real information, the judiciary, particularly the Foreign Intelligence Surveillance Court (FISC), is cut out of the process entirely. “Instead of going to a judge on the secret court that was specifically established to authorize foreign intelligence surveillance inside the United States, we are told that an NSA shift supervisor was able to sign off on the warrantless surveillance of Americans,” she writes. “That’s neither a check nor a balance. The primary duty of the NSA shift supervisor, who essentially works for the president, is to collect intelligence. The task of the judge is to ensure that the legal standards set out in the 1978 Foreign Intelligence Surveillance Act (FISA) have been met. Which one has stronger independence to say no, if no needs to be said? The objectives of the surveillance program, as described in news reports, seem laudable. The government should be running to ground the contacts listed in a suspected terrorist’s cell phone, for example. What is troubling is that this domestic spying is being done in apparent contravention of FISA, for reasons that still are not clear.” In her piece she takes issue with the Bush administration’s insistence that its surveillance program is legal and necessary. She makes the following case:
Specious Arguments to Duck FISA Court - The argument that the FISA Court is too slow to respond to immediate needs for domestic surveillance is specious, she says. “FISA anticipates situations in which speed is essential. It allows the government to start eavesdropping without a court order and to keep it going for a maximum of three days. And while the FISA application process is often burdensome in routine cases, it can also move with remarkable speed when necessary, with applications written and approved in just a few hours.” Instead, she says that the Bush administration must have dodged FISC because their wiretaps didn’t meet FISA standards of probable cause. Since FISC is staffed by judges hand-picked by conservative then-Supreme Court Chief Justice William Rehnquist, “who presumably felt that they had the right temperament and expertise to understand the national security imperatives as well as the need to protect civil liberties,” and since FISC has granted all but four of the more than 5,645 requests for wiretaps and surveillance made by the administration since 2001, to argue that FISC is unresponsive is simply wrong-headed. And, she notes, if the administration felt that FISA’s standards were too strict, it could have moved to amend the law to allow more leniency in obtaining such warrants. It has not done so since the passage of the 2001 Patriot Act. She writes, “The administration reportedly did not think it could get an amendment without exposing details of the program. But this is not the first time the intelligence community has needed a change in the law to allow it to undertake sensitive intelligence activities that could not be disclosed. In the past, Congress and the administration have worked together to find a way to accomplish what was needed. It was never previously considered an option to simply decide that finding a legislative solution was too hard and that the executive branch could just ignore the law rather than fix it.”
No Justification for Keeping Program Secret - In addition, the administration has consistently failed to make a case for keeping the domestic wiretapping policy secret for four years. US-designated terrorist groups already know that the government listens to their cell phone conversations whenever possible, and they are well aware of the various publicly known programs to search through millions of electronic communications, such as the NSA’s Echelon program (see April 4, 2001). “So what do the terrorists learn from a general public discussion about the legal authority being relied upon to target their conversations?” she asks. “Presumably very little. What does the American public lose by not having the public discussion? We lose the opportunity to hold our elected leaders accountable for what they do on our behalf.”
Assertions that Program Authorized by Congress Fallacious - The argument advanced by Attorney General Alberto Gonzales that says the program does not violate the law because Congress’s post-9/11 authorization of force against terrorists gives the administration the right to circumvent FISA is equally specious, she argues. “FISA does provide for criminal penalties if surveillance is conducted under color of law ‘except as authorized by statute.’ This is a reference to either FISA or the criminal wiretap statute. A resolution, such as the Use of Force resolution, does not provide statutory authority. Moreover, FISA specifically provides for warrantless surveillance for up to 15 days after a declaration of war. Why would Congress include that provision if a mere Use of Force resolution could render FISA inapplicable? The law clearly states that the criminal wiretap statute and FISA are ‘the exclusive means by which electronic surveillance…and the interception of domestic wire, oral, and electronic communications may be conducted.’ If these authorities are exclusive, there is no other legal authority that can authorize warrantless surveillance. Courts generally will not view such a clear statutory statement as having been overruled by a later congressional action unless there is an equally clear indication that Congress intended to do that.” Therefore, by any legal standard, the administration’s program is, apparently, illegal.
No Inherent Presidential Authority - The ultimate argument by Bush officials, that the president has some sort of inherent authority as commander-in-chief to authorize illegal wiretaps, is the same groundless legal argument recently used to justify the use of torture by US intelligence and law enforcement agents (see December 28, 2001). That argument was withdrawn, Spaulding notes, after it became publicly known. While the courts have not specifically ruled on this particular argument, Spaulding notes that the Supreme Court refused to recognize then-President Harry Truman’s attempt to seize control of the nation’s steel mills to avert a possible strike during the Korean War. The Supreme Court ruled “that the president’s inherent authority is at its weakest in areas where Congress has already legislated. It ruled that to find inherent presidential authority when Congress has explicitly withheld that authority—as it has in FISA—‘is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between president and Congress.’” She notes that in 2004, the Supreme Court rejected the argument for unchecked presidential power in the Hamdi case (see June 28, 2004), with Justice Sandra Day O’Connor writing for the court, “We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation’s citizens. …Whatever power the United States Constitution envisions for the Executive in its exchanges with… enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” Spaulding concludes, “The rule of law and our system of checks and balances are not a source of weakness or a luxury of peace. As O’Connor reminded us in Hamdi, ‘It is during our most challenging and uncertain moments…that we must preserve our commitment at home to the principles for which we fight abroad.’” [Washington Post, 12/25/2005]

Entity Tags: Sandra Day O’Connor, William Rehnquist, USA Patriot Act, Suzanne Spaulding, National Security Agency, US Supreme Court, Harry S. Truman, Alberto R. Gonzales, “Gang of Eight”, National Commission on Terrorism, Central Intelligence Agency, Foreign Intelligence Surveillance Act, Foreign Intelligence Surveillance Court, Echelon, Bush administration (43)

Timeline Tags: Civil Liberties

The Justice Department opens an investigation into the leak of classified information about the Bush domestic surveillance program. The investigation focuses on disclosures to the New York Times about the secret warrantless wiretapping program conducted by the National Security Agency since shortly after the 9/11 attacks (see Early 2002). The White House claims that the Justice Department initiated the investigation on its own after receiving a request from the NSA, and that it was not even informed of the investigation until the decision had already been made. But White House spokesman Trent Duffy hails the investigation, and implicitly accuses the Times of aiding and abetting terrorists by printing its stories. “The leaking of classified information is a serious issue,” Duffy says. “The fact is that al-Qaeda’s playbook is not printed on Page One, and when America’s is, it has serious ramifications.” [Associated Press, 12/30/2005] President Bush fuels the attack on the Times when he says, “The fact that we’re discussing this program is helping the enemy.” [New York Times, 12/30/2005] Many outside of the administration have accused the wiretapping program, which functions without external oversight or court warrants, of being illegal, and Bush of breaking the law by authorizing it. Administration officials insist that Bush has the power to make such a decision, both under the Constitution’s war powers provision and under the post-9/11 Congressional authorization to use military force against terrorism, even though, as former Senate Majority Leader Tom Daschle recalls, Congress explicitly refused to give Bush the authority to take military action inside the US itself (see December 21-22, 2005). And, in a recent letter to the chairs of the House and Senate Intelligence Committees, the White House claimed that the nation’s security needs outweigh the needs of the citizenry to be secure from secret government surveillance. [Associated Press, 12/30/2005] Others disagree. The American Civil Liberties Union’s Anthony Romero says, “President Bush broke the law and lied to the American people when he unilaterally authorized secret wiretaps of US citizens. But rather than focus on this constitutional crisis, Attorney General [Alberto] Gonzales is cracking down on critics of his friend and boss. Our nation is strengthened, not weakened, by those whistle-blowers who are courageous enough to speak out on violations of the law.” And Marc Rotenberg, the executive director of the Electronic Privacy Information Center, says the NSA should be the focus of an investigation to determine if it broke federal surveillance laws. Tom Devine of the Government Accountability Project suggests a middle course. His group does not object to a limited investigation into the leak of classified information, but, he says, if the administration does “a blanket witch hunt, which I fear, it would trample all over good government laws” designed to protect government workers who expose wrongdoing. “The whole reason we have whistle-blower laws is so that government workers can act as the public’s eyes and ears to expose illegality or abuse of power.” [New York Times, 12/30/2005] Ultimately, this leak investigation may not achieve much, according to law professor Carl Tobias. “It doesn’t seem to me that this leak investigation will take on the importance of the Plame case,” Tobias says. “The bigger story here is still the one about domestic spying and whether the president intends, as he said, to continue doing it.” [Washington Post, 12/31/2005]

Entity Tags: Anthony D. Romero, Tom Devine, Trent Duffy, American Civil Liberties Union, Al-Qaeda, Tom Daschle, Senate Intelligence Committee, US Department of Justice, National Security Agency, Carl Tobias, Electronic Privacy Information Center, Alberto R. Gonzales, New York Times, Government Accountability Project, George W. Bush, Marc Rotenberg, House Intelligence Committee

Timeline Tags: Civil Liberties

Attorney General Alberto Gonzales testifies before the Senate Judiciary Committee that the new “reasonable belief” standard for wiretaps is just another term for “probable cause.” Gonzales’s claim is legally false. The difference between the two standards is significant: while administration officials must present relatively compelling evidence that a US citizen has ties to US-designated terrorist organizations or is involved in terror plots to meet the “probable cause” standard for authorizing electronic surveillance, the “reasonable belief” standard is far more lenient. Gonzales also repeats for the committee President Bush’s claims that the Foreign Intelligence Surveillance Court (FISC) isn’t “agile” or “nimble” enough to assist the Justice Department and the US intelligence community in finding and arresting terrorists, a claim that FISC judges find baffling. FISC routinely approves almost all warrant requests, and FISA allows the government to conduct surveillance for 72 hours before even applying for a warrant. Additionally, FISC has consistently worked with the government to expedite requests and streamline the warrant-issuance procedure. For example, in March 2002, when the FBI and Pakistani police arrested al-Qaeda operative Abu Zubaida, agents found that almost all of Zubaida’s contacts were already being monitored under FISA warrants or through international surveillance efforts (see March 28, 2002). One government official says that the Zubaida discovery gave them “some comfort” that surveillance efforts were working as needed. [Washington Post, 2/9/2006]

Entity Tags: Foreign Intelligence Surveillance Court, Abu Zubaida, Al-Qaeda, Alberto R. Gonzales, US Department of Justice, Senate Judiciary Committee

Timeline Tags: Civil Liberties

Vice President Cheney mentioned NSA intercepts of the 9/11 hijackers’ calls in a speech to the Heritage Foundation.Vice President Cheney mentioned NSA intercepts of the 9/11 hijackers’ calls in a speech to the Heritage Foundation. [Source: David Bohrer / White House]Vice President Dick Cheney uses calls between the 9/11 hijackers in the US and an al-Qaeda communications hub in Yemen that were intercepted by the NSA (see Early 2000-Summer 2001) to justify the NSA’s warrantless wiretapping program (see December 15, 2005). Cheney points out that, “There are no communications more important to the safety of the United States than those related to al-Qaeda that have one end in the United States,” and says that if the NSA’s warrantless program had been implemented before 9/11, “we might have been able to pick up on two hijackers [Nawaf Alhazmi and Khalid Almihdhar] who subsequently flew a jet into the Pentagon.” He adds: “They were in the United States, communicating with al-Qaeda associates overseas. But we did not know they were here plotting until it was too late.” [White House, 1/4/2006] Other administration officials make similar claims about the calls by Almihdhar and Alhazmi in the years after the program is revealed by the New York Times (see December 17, 2005).

Entity Tags: Khalid Almihdhar, Nawaf Alhazmi, Richard (“Dick”) Cheney

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

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

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

Timeline Tags: Civil Liberties

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

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

Timeline Tags: Civil Liberties

After Human Rights Watch, an organization which works to end torture of government detainees around the globe, claims that the Bush administration has made a “deliberate policy choice” to abuse detainees at Guantanamo Bay, Defense Secretary Donald Rumsfeld says, “What took place at Guantanamo is a matter of public record today, and the investigations turned up nothing that suggested that there was any policy in the department other than humane treatment.” In 2002, President Bush declared that detainees in US custody should be treated “humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles” of the Geneva Conventions (see January 19, 2002). Shortly after Rumsfeld’s statement, White House press secretary Scott McClellan says that Human Rights Watch has damaged its own credibility by making such claims. [New Yorker, 2/27/2006]

Entity Tags: Donald Rumsfeld, Bush administration (43), Human Rights Watch, Scott McClellan, George W. Bush, Geneva Conventions

Timeline Tags: Torture of US Captives, Civil Liberties

Al Gore speaks to the Liberty Coalition and the American Constitution Society.Al Gore speaks to the Liberty Coalition and the American Constitution Society. [Source: American Constitution Society]Former Vice President Al Gore delivers a long, impassioned speech on civil liberties and constitutional issues to the Liberty Coalition and the American Constitution Society. Gore joins former Representative Bob Barr (R-GA) in speaking out against the Bush administration’s infringement on American civil liberties. Gore and Barr have what Gore calls a “shared concern that America’s Constitution is in grave danger.”
Patently Illegal Domestic Surveillance - Gore’s speech is sparked by recent revelations that the NSA has been spying on American citizens for years (see December 15, 2005), and in response, the administration “has brazenly declared that it has the unilateral right to continue without regard to the established law enacted by Congress precisely to prevent such abuses.” As the Foreign Intelligence and Surveillance Act (FISA) is perfectly sufficient, there was no need for the Bush administration to circumvent that law. “At present, we still have much to learn about the NSA’s domestic surveillance,” Gore says. “What we do know about this pervasive wiretapping virtually compels the conclusion that the president of the United States has been breaking the law, repeatedly and insistently. A president who breaks the law is a threat to the very structure of our government.” Gore says he agrees with Bush on the threat of terrorism, but disagrees that the US has to “break the law or sacrifice our system of government” to protect itself, as this will make it “weaker and more vulnerable.” In addition, he says, “once violated, the rule of law is itself in danger,” and, “Unless stopped, lawlessness grows, the greater the power of the executive grows, the more difficult it becomes for the other branches to perform their constitutional roles.” It is patently obvious that the Bush administration has broken the law in conducting and approving its warrantless wiretaps, Gore says, regardless of what arguments and defenses administration officials may put forth (see September 12-18, 2001 and Early 2002). So, Gore says, “When President Bush failed to convince Congress to give him the power he wanted when this measure was passed, he secretly assumed that power anyway, as if Congressional authorization was a useless bother. But as [Supreme Court] Justice [Felix] Frankfurter once wrote, ‘To find authority so explicitly withheld is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between the president and the Congress.‘… And the disrespect embodied in these apparent mass violations of the law is part of a larger pattern of seeming indifference to the Constitution that is deeply troubling to millions of Americans in both political parties.”
Illegal Seizure of American Citizens - Gore notes that Bush has declared that he has “a heretofore unrecognized inherent power to seize and imprison any American citizen that he alone determines to be a threat to our nation, and that notwithstanding his American citizenship that person in prison has no right to talk with a lawyer, even if he wants to argue that the president or his appointees have made a mistake and imprisoned the wrong person” (see November 13, 2001 and March 5, 2002). He says: “The president claims that he can imprison that American citizen—any American citizen he chooses—indefinitely, for the rest of his life, without even an arrest warrant, without notifying them of what charges have been filed against them, without even informing their families that they have been imprisoned.” Gore then says: “No such right exists in the America that you and I know and love. It is foreign to our Constitution. It must be rejected.”
Specious Authority to Torture - Neither does the executive branch have the right to authorize torture, Gore says. After citing horrific examples from Guantanamo and Abu Ghraib, he calls it “a shameful exercise of power that overturns a set of principles that you’re nation has observed since General George Washington first enunciated them during our Revolutionary War. They have been observed by every president since then until now. They violate the Geneva Conventions, the International Convention Against Torture, and our own laws against torture.”
Unlawful Kidnapping of Foreign Citizens - The president has no right to have foreign citizens kidnapped from their homes and brought to the US for interrogation and imprisonment, or worse, delivered to other nations for harsh interrogations and torture, says Gore. The closest allies of the US have been shocked by such claims.
No Restraint in the Constitution? - Gore asks whether the president really has such powers under the Constitution and, if so, “are there any acts that can on their face be prohibited?” He quotes the dean of Yale’s law school, Harold Koh, who said, “If the president has commander in chief power to commit torture, he has the power to commit genocide, to sanction slavery, to promote apartheid, to license summary execution.” Gore is “deeply troubl[ed]” that “our normal American safeguards have thus far failed to contain this unprecedented expansion of executive power.” He cites the numerous usage of “signing statements” by Bush that signal his intent “not to comply” with particular legislation (see December 30, 2005). When the Supreme Court struck down Bush’s indefinite detention of “enemy combatants” (see June 28, 2004), “the president then engaged in legal maneuvers designed to prevent the court from providing any meaningful content to the rights of the citizens affected.”
Historical Cycles - Since the founding of America, Gore says, the country has abrogated its citizens’ rights in one circumstance or another, and cites numerous examples. But those abrogations were always rectified to some degree in a repeated cycle of what he calls “excess and regret.” Gore is worried that the country may not be in such a cycle now. Instead, he says, the US may be on a path to permanent, state-sanctioned authoritarianism, with the constitutional safeguards American citizens have come to expect eroded and undermined to the point of irretrievability. Gore specifically cites the administration’s support for the so-called “unitary executive” theory of government, which he says “ought to be more accurately described as the unilateral executive.” That theory “threatens to expand the president’s powers until the contours of the Constitution that the framers actually gave us become obliterated beyond all recognition.”
Stark Authoritarianism - Why are Bush and his top officials doing this? Gore says that “[t]he common denominator seems to be based on an instinct to intimidate and control. The same pattern has characterized the effort to silence dissenting views within the executive branch, to censor information that may be inconsistent with its stated ideological goals, and to demand conformity from all executive branch employees.” Gore continues: “Intellectually, it is possible to carry on this process for an indefinite time. The only check on it is that, sooner or later, a false belief bumps up against solid reality, usually on a battlefield. Two thousand two hundred American soldiers have lost their lives as this false belief bumped into a solid reality.”
Gutting Congress - Though serious damage has been done to the judicial branch, Gore acknowledges, “the most serious damage in our constitutional framework has been to the legislative branch. The sharp decline of Congressional power and autonomy in recent years has been almost as shocking as the efforts by the executive to attain this massive expansion of its power.… [T]he legislative branch of government as a whole, under its current leadership, now operates as if it were entirely subservient to the executive branch.… [T]he whole process is largely controlled by the incumbent president and his political organization” (see February 1, 2004). Gore says each member of Congress, Republican and Democrat, must “uphold your oath of office and defend the Constitution. Stop going along to get along. Start acting like the independent and co-equal branch of American government that you are supposed to be under the Constitution of our country.”
We the People - The American people still, for the moment, have the power to enforce the Constitution, Gore says, quoting former President Dwight Eisenhower, who said, “Any who act as if freedom’s defenses are to be found in suppression and suspicion and fear confess a doctrine that is alien to America.” Gore continues: “Fear drives out reason. Fear suppresses the politics of discourse and opens the door to the politics of destruction.… The founders of our country faced dire threats. If they failed in their endeavors, they would have been hung as traitors. The very existence of our country was at risk. Yet in the teeth of those dangers, they insisted on establishing the full Bill of Rights. Is our Congress today in more danger than were their predecessors when the British army was marching on the Capitol? Is the world more dangerous than when we faced an ideological enemy with tens of thousands of nuclear missiles ready to be launched on a moment’s notice to completely annihilate the country?” [Congressional Quarterly, 1/16/2006; American Constitutional Society, 1/16/2006]

Entity Tags: National Security Agency, Liberty Coalition, US Supreme Court, Harold Koh, George W. Bush, Albert Arnold (“Al”) Gore, Jr., American Constitution Society, Bush administration (43), Convention Against Torture, Felix Frankfurter, George Washington, Geneva Conventions, Foreign Intelligence Surveillance Act, Robert “Bob” Barr

Timeline Tags: Civil Liberties

Journalist and columnist Joshua Micah Marshall says of former Vice President Al Gore’s speech on civil liberties the previous day (see January 16, 2006): “The point Gore makes in his speech that I think is most key is the connection between authoritarianism, official secrecy, and incompetence. The president’s critics are always accusing him of law-breaking or unconstitutional acts and then also berating the incompetence of his governance. And it’s often treated as, well… he’s power-hungry and incompetent to boot! Imagine that! The point though is that they are directly connected. Authoritarianism and secrecy breed incompetence; the two feed on each other. It’s a vicious cycle. Governments with authoritarian tendencies point to what is in fact their own incompetence as the rationale for giving them yet more power.… The basic structure of our Republic really is in danger from a president who militantly insists that he is above the law.” [Dean, 2006, pp. 170-171; Talking Points Memo, 1/17/2006]

Entity Tags: Albert Arnold (“Al”) Gore, Jr., George W. Bush, Joshua Micah Marshall

Timeline Tags: Civil Liberties

The Congressional Research Service (CRS) finds that the Bush administration broke the law when it refused to provide timely and complete briefings to the appropriate members of Congress on the National Security Agency’s domestic wiretapping program. The CRS’s legal analysis concludes that the administration’s limited briefings are “inconsistent with the law.” The CRS performed the analysis at the request of Representative Jane Harman (D-CA), the ranking Democrat on the House Intelligence Committee and a member of the so-called “Gang of Eight,” the eight members of Congress that Bush allows to receive limited information on the NSA program. Harman, who calls the CRS report “a solid piece of work,” wrote to Bush on January 4, 2006, to inform him that she believes the information should be provided to all the members of the House and Senate Intelligence Committees. The briefings, which are intentionally limited in scope, are provided only to eight members of Congress: the Speaker of the House, the House Minority Leader, the Senate Majority and Minority Leaders, and the ranking members of the House and Senate Intelligence Committees. Harman says that an upcoming briefing, scheduled for February 6, should include all members of the intelligence committees. The briefings on the NSA program are held through the office of Vice President Dick Cheney. Though Harman is in agreement with the CRS that the briefings are legally inadequate, House Intelligence Committee chairman Peter Hoekstra (R-MI) has said he believes the briefings are adequate for Congressional oversight.
bullet The CRS finding is based on the requirements of the 1947 National Security Act, that mandates that all of the members of the House and Senate Intelligence Committees be “fully and currently informed” of intelligence activities. The Act says that “covert actions” can only be revealed to the “Gang of Eight,” but, the CRS finds, since the NSA’s domestic surveillance program does not appear to be covert, limiting the briefings to just eight members of Congress “would appear to be inconsistent with the law.” The memo gives several options for the administration to bring itself into compliance with the law, noting, for example, that “[t]he executive branch may assert that the mere discussion of the NSA program generally could expose certain intelligence sources and methods to disclosure.” [New York Times, 1/18/2006; Washington Post, 1/19/2006]

Entity Tags: Jane Harman, “Gang of Eight”, Bush administration (43), House Intelligence Committee, National Security Act, Peter Hoekstra, National Security Agency, Congressional Research Service, Richard (“Dick”) Cheney, Senate Intelligence Committee

Timeline Tags: Civil Liberties

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

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

Timeline Tags: Civil Liberties

President Bush’s top political adviser, deputy White House chief of staff Karl Rove, tells a meeting of the Republican National Committee that the warrantless wiretapping controversy (see December 15, 2005 and December 18, 2005) can be used to boost Republicans’ election chances in the 2006 midterm elections. Republicans should emphasize that the wiretapping proves that Bush is willing to do whatever it takes to defeat terrorism and keep Americans safe. Critics of the program, therefore, can be painted as weak on terrorism. “The United States faces a ruthless enemy, and we need a commander in chief and a Congress who understand the nature of the threat and the gravity of the moment America finds itself in,” Rove says. “President Bush and the Republican Party do; unfortunately, the same cannot be said of many Democrats.… Let me be clear as I can be: President Bush believes if al-Qaeda is calling somebody in America, it is in our national security interests to know who they’re calling and why. Some important Democrats clearly disagree.” [WIS-TV, 1/20/2006; Savage, 2007, pp. 203]

Entity Tags: George W. Bush, Democratic Party, Republican Party, Republican National Committee, Karl C. Rove

Timeline Tags: Civil Liberties

In a public speech, former National Security Agency chief Michael Hayden claims that everything the NSA does is with authorization from the White House, specifically the warrantless wiretapping program that spies on US citizens (see Early 2002). “I didn’t craft the authorization,” he says. “I am responding to a lawful order.” Hayden claims that while the NSA continues to use court warrants from the Foreign Intelligence Surveillance Court (FISC), technological advances and terrorist threats have made the law that created and supports FISC, the Foreign Intelligence Surveillance Act of 1978 (see 1978), obsolete. Therefore, the NSA has carried out domestic surveillance operations with or without FISC warrants. Hayden says the warrantless surveillance operations are “operationally more relevant, operationally more effective” than anything FISA can handle. Hayden repeatedly denies, in the face of reams of evidence collected by journalists and others to the contrary, that the NSA is spying on domestic antiwar groups and religious organizations like the Quakers who publicly advocate nonviolence and peace. [Michael Hayden, 1/23/2006]

Entity Tags: Foreign Intelligence Surveillance Court, Al-Qaeda, Foreign Intelligence Surveillance Act, Religious Society of Friends (Quakers), Terrorist Surveillance Program, National Press Club, Bush administration (43), National Security Agency, Michael Hayden, George W. Bush

Timeline Tags: Civil Liberties

President Bush at the National Security Agency.President Bush at the National Security Agency. [Source: Eric Draper / White House]President George Bush uses calls between the 9/11 hijackers in the US and an al-Qaeda communications hub in Yemen that were intercepted by the NSA (see Early 2000-Summer 2001) to justify the NSA’s warrantless wiretapping program (see December 15, 2005). Bush says: “We know that two of the hijackers who struck the Pentagon [Nawaf Alhazmi and Khalid Almihdhar] were inside the United States communicating with al-Qaeda operatives overseas. But we didn’t realize they were here plotting the attack until it was too late.” Bush also quotes former NSA Director Michael Hayden, who previously said, “Had this program been in effect prior to 9/11… we would have detected some of the 9/11 al-Qaeda operatives in the United States, and we would have identified them as such” (see January 23, 2006). Bush and other administration officials make similar claims about the calls by Almihdhar and Alhazmi in the years after the program is revealed by the New York Times (see December 17, 2005). [White House, 1/25/2006] Bush made similar remarks at Kansas State University two days previously. [White House, 1/23/2006]

Entity Tags: Khalid Almihdhar, Nawaf Alhazmi, George W. Bush

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

Washington Post reporter William Arkin reveals that the National Security Agency (NSA) is “building a new warning hub and data warehouse” in Aurora, Colorado, just outside of Denver, on the grounds of Buckley Air Force Base. The agency is transferring many key personnel from its Fort Meade, Maryland, headquarters to Aurora. Arkin calls the new NSA facility, named the Aerospace Data Facility (ADF), “massive,” and says he believes it is the hub of the NSA’s data mining operation (see January 16, 2004). According to Government Executive magazine, the NSA’s new data storage facility “will be able to hold the electronic equivalent of the Library of Congress every two days.” While the NSA explains that the new facility is a cost-cutting measure and part of the agency’s post-9/11 decentralization—“This strategy better aligns support to national decision makers and combatant commanders,” an NSA spokesman tells one reporter—Arkin says that the “NSA is aligning its growing domestic eavesdropping operations—what the administration calls ‘terrorist warning’ in its current PR campaign—with military homeland defense organizations, as well as the CIA’s new domestic operations [in] Colorado.… Colorado is now the American epicenter for national domestic spying.” Arkin notes that previous news reports have said that the CIA is planning to move much of its domestic National Resources Division to Aurora as well. He also notes that Colorado is the home of the US military’s Northern Command (NORTHCOM), the military arm responsible for homeland defense. The move also allows the NSA to better coordinate its efforts with private contractors such as Lockheed Martin, Northrup Grumman Mission Systems, and Raytheon, all of which have presences in Colorado. Arkin names all three firms as partners with the NSA in building the ADF. Former senior AT&T technician Mark Klein (see July 7, 2009 and May 2004) will later write, “Over months and years, the database would be huge, ready for data mining whenever the government wants to go after someone.” [Washington Post, 1/31/2006; Klein, 2009, pp. 40-41]

Entity Tags: National Security Agency, Aerospace Data Facility, Government Executive Magazine, Mark Klein, Northrup Grumman Mission Systems, William Arkin, Lockheed Martin Corporation, Raytheon, US Northern Command

Timeline Tags: Civil Liberties

Electronic Frontier Foundation logo.Electronic Frontier Foundation logo. [Source: Flickr.com]The Electronic Frontier Foundation (EFF), a civil liberties and privacy-advocacy organization, files a lawsuit against telecommunications giant AT&T for allegedly violating the law and the privacy of its citizens by cooperating with the National Security Agency in the NSA’s construction of what the EFF calls a “massive, illegal program to wiretap and data-mine Americans’ communications.” EFF lawyer Kevin Bankston says: “Our goal is to go after the people who are making the government’s illegal surveillance possible. They could not do what they are doing without the help of companies like AT&T. We want to make it clear to AT&T that it is not in their legal or economic interests to violate the law whenever the president asks them to.”
Unprecedented Access to Communications System - EFF alleges that as part of the NSA’s domestic spying program, AT&T has allowed the NSA direct access to the phone and Internet communications passing over its network, and has given the government “unfettered access to its over 300 terabyte ‘Daytona’ database of caller information—one of the largest databases in the world.” One of AT&T’s databases, nicknamed “Hawkeye,” contains 312 terabytes of data detailing nearly every telephone communication on AT&T’s domestic network since 2001, the lawsuit alleges. The suit goes on to claim that AT&T allowed the NSA to use the company’s powerful Daytona database management software to quickly search this and other communication databases. AT&T, the suit claims, is in violation of the First and Fourth Amendments, federal wiretapping statutes, telecommunications laws, and the Electronic Communications Privacy Act. The suit requests fines up to $22,000 for each AT&T customer, and punitive fines—damages that could potentially reach into the billions of dollars. The EFF lawsuit is one of over 30 lawsuits filed for similar reasons (see June 26, 2006). The lawsuit will survive a number of initial legal challenges by the Justice Department and AT&T, including AT&T’s contention that “whatever we did, the government told us to do” and therefore it should be immune from such lawsuits, and the Justice Department’s invocation of “national security” and the possibility of the revelation of “state secrets” (see March 9, 1953). EFF retorts, “In this country we follow the law, we don’t just follow orders.” Bankston tells a reporter, “If state secrecy can prevent us from preserving the rights of millions upon millions of people, then there is a profound problem with the law.”
Suit Alleges Criminal Actions, Does Not Challenge Government's Right to Wiretap - The lawsuit does not challenge the government’s right to electronically monitor legitimate terrorism suspects, nor does it challenge the judicial right to issue warrants for such surveillance. Rather, EFF writes: “Wiretaps on terrorists are allowed under the law, and this lawsuit is not challenging the wiretap laws. We have sued AT&T for breaking those laws—the telecommunications giant gave the government access to its communications switches and its huge databases of information on millions of ordinary Americans. These are AT&T customers who have not even been accused of affiliations with terrorists. Americans can be both safe and free: if the government truly believes it has cause to wiretap a suspect, it can order AT&T to provide information under FISA [the Foreign Intelligence Surveillance Act]—for up to 72 hours before going to the court. But AT&T has no business providing direct access to the communications of millions of ordinary Americans, without the checks and balances of Congress or the courts.” [Electronic Frontier Foundation, 1/31/2006; Wired News, 1/31/2006]

Entity Tags: Electronic Frontier Foundation, Foreign Intelligence Surveillance Act, National Security Agency, AT&T, US Department of Justice, Kevin Bankston

Timeline Tags: Civil Liberties

Retired AT&T technician Mark Klein (see December 15-31, 2005 and July 7, 2009), working with a civil liberties group and a reporter to expose the collusion of AT&T and the National Security Agency in pushing the government’s illegal surveillance program (see Early January 2006 and January 23, 2006 and After), contacts the office of Senator Dianne Feinstein (D-CA) at the advice of Electronic Frontier Foundation lawyer Kevin Bankston. Klein talks to Feinstein’s chief attorney in Washington, DC, Steven Cash. Klein will later write: “I instinctively recoiled at the thought of trying to approach her as my memory of her record told me she was no friend of civil liberties, though she plays one on TV. My instinct was not wrong.” After an initial discussion with Cash, Klein emails him his packet of documentation (see December 31, 2005). On the afternoon of February 3, Cash calls Klein and says he is very interested in his story, though Feinstein’s staff rates the probability of the NSA performing illegal acts at somewhere around “50-50,” according to Klein. Cash promises to get back in touch with Klein on February 6, but fails to do so. Neither Klein nor his attorneys (see Early January 2006) are able to talk to anyone on Feinstein’s staff from here on. Klein later writes: “The silent message was unmistakable: the senator did not want to sully her political skirts by having contact with a whistleblower. And this was a foretaste of her behavior and voting for the next two and a half years. At every turn, she was there pushing for immunity for the telecom companies in the Senate Intelligence and Judiciary Committees; peddling her toothless restatement of the ‘exclusive means’ clause of FISA [the Foreign Intelligence Surveillance Act—see 1978] as a substitute for any confrontation with the president over ongoing illegal NSA spying; ushering former NSA Director Michael Hayden through his nomination for CIA director; and backing Michael Mukasey as a clone replacement for the resigning Attorney General [Alberto] Gonzales. Moreover, this ultimately turned out to be the attitude of virtually the entire Democratic Party leadership, not to mention the Republicans.” Klein will explain that FISA’s “exclusive means” clause states that FISA should be the “exclusive means” for the federal government to conduct surveillance. Congress’s duty under the law was, Klein will state, to enforce the law against President Bush, “who openly flouted the law.” Instead, Klein will claim, Feinstein uses the “exclusive means” clause to protect the Bush administration and the telecom firms. [Klein, 2009, pp. 57-60]

Entity Tags: Electronic Frontier Foundation, AT&T, Dianne Feinstein, Mark Klein, National Security Agency, Steven Cash, Kevin Bankston

Timeline Tags: Civil Liberties

The Justice Department’s Office of Professional Responsibility (OPR) opens an internal investigation into the department’s role in approving the Bush administration’s domestic warrantless wiretapping program. OPR counsel Marshall Jarrett informs Representative Maurice Hinchey (D-NY) of the investigation into the program, initiated after the 9/11 attacks by the National Security Agency and authorized via a secret executive order from President Bush shortly thereafter (see Early 2002). Jarrett writes that the OPR probe will include “whether such activities are permissible under existing law.” Justice Department spokeswoman Tasia Scolinos says the inquiry will be quite limited: “They will not be making a determination on the lawfulness of the NSA program but rather will determine whether the department lawyers complied with their professional obligations in connection with that program.” Scolinos calls the OPR probe “routine.” Hinchey says he welcomes the probe, which may determine “how President Bush went about creating this Big Brother program.” [Washington Post, 2/16/2006] The OPR inquiry is derailed after the NSA, with Bush’s authorization, refuses to give routine security clearances to OPR lawyers that would allow them to examine the relevant documents (see May 9, 2006).

Entity Tags: US Department of Justice, Tasia Scolinos, H. Marshall Jarrett, National Security Agency, George W. Bush, Bush administration (43), Maurice Hinchey, Office of Professional Responsibility

Timeline Tags: Civil Liberties

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

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

Timeline Tags: Civil Liberties

Retired AT&T technician Mark Klein (see December 15-31, 2005 and July 7, 2009), working with a civil liberties group about his knowledge of governmental illegality in eavesdropping on Americans’ telephone and Internet communications (see Early January 2006), has contacted Los Angeles Times reporter Joseph Menn about publishing an article expising AT&T’s collusion with the National Security Agency (NSA) to illegally conduct surveillance against American citizens (see January 23, 2006 and After). Klein believed Menn was enthusiastic about exposing AT&T and the NSA in his newspaper. Instead, Klein is shocked to hear from Menn that the Times’s “top guy” is preparing to meet with Director of National Intelligence John Negroponte to discuss any such publication. “I nearly fell down in shock,” Klein will later write. “[T]hey were actually negotiating with the government on whether to publish!” Menn describes himself to Klein as “demoralized,” and says the chances of getting the story published are “grim.” In his seven years at the Times, Menn tells Klein, he has never seen a story “spiked” for “nefarious reasons,” implying that the reason behind the story’s non-publication are “nefarious.” Klein is also dismayed that the Times has now revealed his existence as a whistleblower to Negroponte, and by extension to the US intelligence apparatus. Two days ago, Klein began emailing a New York Times reporter, James Risen, the co-author of a 2005 expose about the NSA’s surveillance program (see December 15, 2005). After hearing from Menn, Klein emails Risen to inform him of the Los Angeles Times’s decision to “consult” with Negroponte, and also of the lack of interest he has received from Senator Dianne Feinstein’s office (see February 1-6, 2006). Risen calls in fellow reporter Eric Lichtblau, his co-author on the 2005 story, and the two begin working on their own story. Klein remains worried about his personal and professional safety, since, as he will write, “[t]he government was on to me, but I did not yet have a published article and the protection that comes with publicity. I had visions, perhaps paranoid in hindsight, of being disappeared in the night, like [nuclear industry whistleblower] Karen Silkwood.” The Los Angeles Times story will drag on until March 29, when Menn will inform Klein that it is officially dead, blocked by Times editor Dean Baquet. Klein will later learn that Baquet had not only been in contact with Negroponte, but with NSA Director Michael Hayden. In 2007, Baquet will tell ABC News reporters that “government pressure played no part in my decision not to run with the story,” and will say that he and managing editor Doug Frantz decided “we did not have a story, that we could not figure out what was going on” with Klein’s documentation (see March 26, 2007). Klein will call Baquet’s explanation an “absurd and flimsy excuse,” and will say it is obvious that the Los Angeles Times “capitulated to government pressure.” [PBS Frontline, 5/15/2007; Klein, 2009, pp. 59-62]

Entity Tags: James Risen, Dean Baquet, AT&T, Dianne Feinstein, Eric Lichtblau, Joseph Menn, Michael Hayden, John Negroponte, Douglas Frantz, National Security Agency, Los Angeles Times, Mark Klein

Timeline Tags: Civil Liberties

Attorney General Alberto Gonzales says he will sharply limit the testimony of former attorney general John Ashcroft and former deputy attorney general James Comey before the Senate Judiciary Committee. The committee is preparing for hearings on the warrantless wiretapping program authorized by President Bush several months after the 9/11 attacks (see Early 2002). Gonzales says that “privilege issues” will circumscribe both men’s testimony: “As a general matter, we would not be disclosing internal deliberations, internal recommendations. That’s not something we’d do as a general matter, whether or not you’re a current member of the administration or a former member of the administration.” He adds, “You have to wonder what could Messrs. Comey and Ashcroft add to the discussion.” Comey was an observer to the late-night visit by Gonzales and then-White House chief of staff Andrew Card to Ashcroft’s hospital room, where Gonzales and Card unsuccessfully attempted to persuade the heavily sedated Ashcroft to reauthorize the program after Comey, as acting attorney general, determined the program was likely illegal (see March 10-12, 2004). Committee chairman Arlen Specter (R-PA) says he has asked Gonzales for permission to call Comey and Ashcroft to testify, but has not yet received an answer. Specter says, “I’m not asking about internal memoranda or any internal discussions or any of those kind of documents which would have a chilling effect.” Specter will ask Ashcroft and Comey to talk about the legal issues at play in the case, including the events surrounding the hospital visit. In the House Judiciary Committee, Republicans block an attempt by Democrats to ask Gonzales to provide legal opinions and other documents related to the program. [Washington Post, 2/16/2006]

Entity Tags: Andrew Card, Alberto R. Gonzales, Arlen Specter, George W. Bush, John Ashcroft, House Judiciary Committee, James B. Comey Jr., Senate Judiciary Committee

Timeline Tags: Civil Liberties

The American Civil Liberties Union (ACLU) releases Defense Department documents showing that senior Pentagon officials approved harsh interrogation techniques that FBI agents termed abusive, ineffective, and unlawful. “We now possess overwhelming evidence that political and military leaders endorsed interrogation methods that violate both domestic and international law,” according to ACLU lawyer Jameel Jaffer. “It is entirely unacceptable that no senior official has been held accountable.” One document shows that FBI personnel at Guantanamo questioned harsh methods being used by military interrogators (see May 30, 2003). Another shows that senior Pentagon officials approved interrogation methods considered abusive by FBI agents (see May 5, 2004). The ACLU says that, combined with a memo from Navy general counsel Alberto Mora (see January 15-22, 2003), evidence “show[s] conclusively that Pentagon officials at the highest levels authorized the abuse of prisoners and persisted in their endorsement of unlawful interrogation methods even after FBI and Navy personnel objected to those methods orally and in writing.” The documents released by the ACLU also show that interrogators from the Department of Homeland Security identified themselves as FBI agents while using harsh methods against detainees. One FBI memo observed, “The next time a real agent tries to talk to that guy, you can imagine the result.” The documents also show that while FBI agents expressed concern about the harsh interrogation methods being employed by military and other interrogators, the FBI itself did little to counter such tactics (see January 24, 2004). [American Civil Liberties Union, 2/23/2006]

Entity Tags: US Department of the Navy, Alberto Mora, American Civil Liberties Union, Federal Bureau of Investigation, Jameel Jaffer, US Department of Homeland Security, US Department of Defense

Timeline Tags: Torture of US Captives

The Al Haramain Islamic Foundation, a now-defunct Saudi Arabian charitable organization that once operated in Oregon, sues the Bush administration [Associated Press, 2/28/2006] over what it calls illegal surveillance of its telephone and e-mail communications by the National Security Agency, the so-called Terrorist Surveillance Program. The lawsuit may provide the first direct evidence of US residents and citizens being spied upon by the Bush administration’s secret eavesdropping program, according to the lawsuit (see December 15, 2005). According to a source familiar with the case, the NSA monitored telephone conversations between Al Haramain’s director, then in Saudi Arabia, and two US citizens working as lawyers for the organization and operating out of Washington, DC. The lawsuit alleges that the NSA violated the Foreign Intelligence Surveillance Act (see 1978), the US citizens’ Fourth Amendment rights, and the attorney-client privilege. FISA experts say that while they are unfamiliar with the specifics of this lawsuit, they question whether a FISA judge would have allowed surveillance of conversations between US lawyers and their client under the circumstances described in the lawsuit. Other lawsuits have been filed against the Bush administration over suspicions of illegal government wiretapping, but this is the first lawsuit to present classified government documents as evidence to support its contentions. The lawsuit alleges that the NSA illegally intercepted communications between Al Haramain officer Suliman al-Buthe in Saudi Arabia, and its lawyers Wendell Belew and Asim Ghafoor in Washington. One of its most effective pieces of evidence is a document accidentally turned over to the group by the Treasury Department, dated May 24, 2004, that shows the NSA did indeed monitor conversations between Al Haramain officials and lawyers. When Al Haramain officials received the document in late May, 2004, they gave a copy to the Washington Post, whose editors and lawyers decided, under threat of government prosecution, to return the document to the government rather than report on it (see Late May, 2004). [Washington Post, 3/2/2006; Washington Post, 3/3/2006] Lawyer Thomas Nelson, who represents Al Haramain and Belew, later recalls he didn’t realize what the organization had until he read the New York Times’s December 2005 story of the NSA’s secret wiretapping program (see December 15, 2005). “I got up in the morning and read the story, and I thought, ‘My god, we had a log of a wiretap and it may or may not have been the NSA and on further reflection it was NSA,’” Nelson will recall. “So we decided to file a lawsuit.” Nelson and other lawyers were able to retrieve one of the remaining copies of the document, most likely from Saudi Arabia, and turned it over to the court as part of their lawsuit. [Wired News, 3/5/2007]
Al Haramain Designated a Terrorist Organization - In February 2004, the Treasury Department froze the organization’s US financial assets pending an investigation, and in September 2004, designated it a terrorist organization, citing ties to al-Qaeda and alleging financial ties between Al Haramain and the 1998 bombings of two US embassies in Africa (see 10:35-10:39 a.m., August 7, 1998). The organization was disbanded by the Saudi Arabian government in June 2004 and folded into an “umbrella” private Saudi charitable organization, the Saudi National Commission for Relief and Charity Work Abroad (see March 2002-September 2004). In February 2005, the organization was indicted for conspiring to funnel money to Islamist fighters in Chechnya. The charges were later dropped. [US Treasury Department, 9/9/2004; Washington Post, 3/2/2006] The United Nations has banned the organization, saying it has ties to the Taliban. [United Nations, 7/27/2007]
Challenging Designation - In its lawsuit, Al Haramain is also demanding that its designation as a terrorist organization be reversed. It says it can prove that its financial support for Chechen Muslims was entirely humanitarian, with no connections to terrorism or violence, and that the Treasury Department has never provided any evidence for its claims that Al Haramain is linked to al-Qaeda or has funded terrorist activities. [Associated Press, 8/6/2007] The lawsuit also asks for $1 million in damages, and the unfreezing of Al Haramain’s US assets. [Associated Press, 8/5/2007]
Administration Seeks to Have Lawsuit Dismissed - The Bush administration will seek to have the lawsuit thrown out on grounds of national security and executive privilege (see Late 2006-July 2007, Mid-2007).

Entity Tags: Wendell Belew, Suliman al-Buthe, Taliban, Washington Post, United Nations, Saudi National Commission for Relief and Charity Work Abroad, US Department of the Treasury, National Security Agency, Thomas Nelson, Foreign Intelligence Surveillance Act, Al Haramain Islamic Foundation, Al-Qaeda, Al Haramain Islamic Foundation (Oregon branch), Foreign Intelligence Surveillance Court, Asim Ghafoor, Bush administration (43)

Timeline Tags: Civil Liberties

Zacarias Moussaoui.Zacarias Moussaoui. [Source: WNBC / Jonathan Deinst]Zacarias Moussaoui becomes the first and only person charged in direct connection with the 9/11 attacks to stand trial in the US. [Associated Press, 3/17/2006] He was preparing to hijack an aircraft and fly it into a target when he was arrested 26 days before 9/11 (see August 16, 2001 and April 22, 2005). Although there has been disagreement whether Moussaoui was to take part in the actual attack of 9/11 or a follow-up plot (see January 30, 2003), the prosecution alleges that Moussaoui had information related to the attacks (see August 16, 2001) and facilitated them by lying and not disclosing everything he knew to the FBI. He is charged with six counts, including conspiracy to commit acts of terrorism and conspiracy to commit aircraft piracy. [US District Court for the Eastern District of Virginia, Alexandria Division, 12/11/2001 pdf file] The trial receives much media coverage and the highlights include the playing of United 93’s cockpit recorder (see April 12, 2006), a row over a government lawyer coaching witnesses (see March 13, 2006), and testimony by FBI agent Harry Samit (see March 9 and 20, 2006), former FBI assistant director Michael Rolince (see March 21, 2006), and Moussaoui himself (see March 27, 2006). Moussaoui is forced to wear a stun belt, controlled by one of the marshalls, under his jumpsuit. The belt is to be used if Moussaoui lunges at a trial participant. [New York Times, 4/17/2006] He has already pleaded guilty (see April 22, 2005) and the trial is divided into two phases; in the first phase the jury decides that Moussaoui is eligible for the death penalty, but in the second phase it fails to achieve unanimity on whether Moussaoui should be executed (see May 3, 2006). [Associated Press, 4/3/2006; New York Times, 4/17/2006]

Entity Tags: Zacarias Moussaoui

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

Republicans on the Senate Intelligence Committee refuse to allow an inquiry into the Bush administration’s warrantless wiretapping program (see December 15, 2005 and December 18, 2005), with the committee voting 10-8 along party lines to reject such a probe. Senate Judiciary Committee chairman Arlen Specter (R-PA) had advocated such a probe, but White House officials refused to cooperate with his committee, saying they would only cooperate via classified briefings to the Intelligence Committee. However, committee Republicans, led by chairman Pat Roberts (R-KS), have no intention of allowing such an inquiry. Roberts and his fellows say they will push to impose limitations on the program. Committee Democrats accuse their Republican colleagues of colluding with the administration to block the inquiry. “The committee is, to put it bluntly, is basically under the control of the White House,” says ranking committee member John D. Rockefeller (D-WV). “You can’t legislate properly unless you know what’s going on.” The Republicans have left Congress to “legislate in darkness and ignorance,” he says. Republicans say that a new, select subcommittee will increase oversight of the administration’s wiretapping. “It provides for a case-by-case examination and oversight by the United States Congress,” says Mike DeWine (R-OH), who is helping draft the bill for the new oversight subcommittee. “It will be very consistent with what our constitutional obligations are.” DeWine’s bill would allow the administration to ignore restrictions on wiretapping merely by invoking national security, and would not allow the committee to intervene even in clearly unjustified cases of wiretapping. “The White House could just decide not to tell them everything, and there’s no sanction,” says Bruce Fein, a former Reagan administration lawyer. “And the president can still claim that he has inherent power to conduct surveillance.” The bill is “extremely generous to the president,” says conservative law professor Douglas Kmiec. “It is not significantly different from the status quo. And I think the president would be quite delighted by that.” [Boston Globe, 3/8/2006; Savage, 2007, pp. 204]

Entity Tags: Senate Judiciary Committee, Bruce Fein, Arlen Specter, Bush administration (43), Pat Roberts, Douglas Kmiec, Mike DeWine, John D. Rockefeller, Senate Intelligence Committee

Timeline Tags: Civil Liberties

President Bush signs the USA Patriot Improvement and Reauthorization Act of 2005 into law. The bill, which extends and modifies the original USA Patriot Act (see October 26, 2001), was driven through Congress primarily by the Republican majorities in both Houses. However, Senator Dianne Feinstein (D-CA) cosponsored the Senate bill, numerous Democrats in both Houses voted with the Republicans in favor of the bill, and the final bill sailed through the Senate by an 89-10 vote on March 2. [GovTrack, 3/9/2006; Library of Congress, 3/9/2006] In the signing ceremony, Bush calls the Reauthorization Act “a really important piece of legislation… that’s vital to win the war on terror and to protect the American people.” He repeatedly evokes the 9/11 attacks as a reason why the new law is needed. [Government Printing Office, 3/9/2006]
Provisions for Oversight Added - One of the reasons why the reauthorization bill received such support from Congressional moderates on both sides of the aisle is because Congress added numerous provisions for judicial and Congressional oversight of how government and law enforcement agencies conduct investigations, especially against US citizens. Representative Butch Otter (R-ID) said in 2004 that Congress came “a long way in two years, and we’ve really brought an awareness to the Patriot Act and its overreaches that we gave to law enforcement.” He adds, “We’ve also quieted any idea of Patriot II, even though they snuck some of Patriot II in on the intelligence bill” (see February 7, 2003). [Associated Press, 1/23/2004]
Opposition From Both Sides - Liberal and conservative organizations joined together in unprecedented cooperation to oppose several key provisions of the original reauthorization and expansion of the Patriot Act, including easing of restrictions on government and law enforcement agencies in obtaining financial records of individuals and businesses, “sneak-and-peek” searches without court warrants or the target’s knowledge, and its “overbroad” definition of the term “terrorist.” Additionally, lawmakers in Congress insisted on expiration dates for the various surveillance and wiretapping methodologies employed by the FBI and other law enforcement agencies (see Early 2002). [Associated Press, 5/23/2005] The final bill mandates that anyone subpoenaed for information regarding terrorist investigations has the right to challenge the requirement that they not reveal anything about the subpoena, those recipients will not be required to tell the FBI the name of their lawyer, and libraries that are not Internet service providers will not be subject to demands from “national security letters” for information about their patrons. Many of the bill’s provisions will expire in four years. [Christian Science Monitor, 3/3/2006]
Reauthorizing Original Provisions - The bill does reauthorize many expiring provisions of the original Patriot Act, including one that allows federal officials to obtain “tangible items,” such as business records from libraries and bookstores, in connection with foreign intelligence and international terrorism investigations. Port security provisions are strengthened, and restrictions on the sale of over-the-counter cold and allergy medicine that can be used in the illegal manufacture of methamphetamine are imposed, forcing individuals to register their purchases of such medicines and limiting the amounts they can buy. [CBS News, 3/9/2006]
Bush Signing Statement Says He Will Ignore Oversight Mandates - But when he signs the bill into law, Bush also issues a signing statement that says he has no intention of obeying mandates that enjoin the White House and the Justice Department to inform Congress about how the FBI is using its new powers under the bill. Bush writes that he is not bound to tell Congress how the new Patriot Act powers are being used, and in spite of what the law requires, he can and will withhold information if he decides that such disclosure may “impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive’s constitutional duties.” [Statement on Signing the USA PATRIOT Improvement and Reauthorization Act, 3/9/2006; Boston Globe, 3/24/2006] Senator Patrick Leahy (D-VT) says that Bush’s assertion that he can ignore provisions of the law as he pleases, under the so-called “unitary executive” theory, are “nothing short of a radical effort to manipulate the constitutional separation of powers and evade accountability and responsibility for following the law.” Law professor David Golove says the statement is illustrative of the Bush administration’s “mind-bogglingly expansive conception” of executive power, and its low regard for legislative power. [Boston Globe, 3/24/2006] Author and legal expert Jennifer Van Bergen warns of Bush using this signing statement to avoid accountability about the NSA’s warrantless wiretapping program, writing: “[I]t is becoming clearer every day that Bush has no qualms about violating either international laws and obligations or domestic laws. The recent revelations about the secret NSA domestic surveillance program revealed Bush flagrantly violating the Foreign Intelligence Surveillance Act which was specifically enacted to prevent unchecked executive branch surveillance. … His signing statements, thus, are nothing short of an attempt to change the very face of our government and our country.” [Institute for Public Accuracy, 3/27/2006]
Request to Rescind Signing Statement - In late March, Democratic House members Jane Harman and John Conyers will write to Attorney General Alberto Gonzales requesting that the administration rescind the signing statement, writing: “As you know, ‘signing statements’ do not have the force of law. Legislation passed by both Houses and signed by the president does. As Article 1, Section 7, of the Constitution states: ‘Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it.’” Bush and Gonzales will ignore the request. [US House of Representatives, 3/29/2006]

Entity Tags: US Department of Justice, Domestic Security Enhancement Act of 2003, David Golove, Alberto R. Gonzales, Butch Otter, Dianne Feinstein, Patrick J. Leahy, USA Patriot Act, John Conyers, Federal Bureau of Investigation, National Security Agency, Foreign Intelligence Surveillance Act, Jennifer Van Bergen, Jane Harman, George W. Bush

Timeline Tags: Civil Liberties

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

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

Timeline Tags: Civil Liberties

Responding to President Bush’s signing statement indicating that he will not comply with several oversight provisions in the USA Patriot Act reauthorization (see March 9, 2006), House members Jane Harman (D-CA) and John Conyers (D-MI) write to Attorney General Alberto Gonzales asking that the administration rescind the statement. They write, “As you know, ‘signing statements’ do not have the force of law. Legislation passed by both Houses and signed by the President does. As Article 1, Section 7, of the Constitution states: ‘Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it.’ If the President does not like part of a bill, he has only one option: to veto the entire thing. This signing statement, and many of the 107 similar statements the President has issued on other legislation, have the effect of corrupting the legislative process. Indeed, during consideration of this matter, many Members who supported the final law did so based upon the guarantee of additional reporting and oversight. This Administration cannot, after the fact, unilaterally repeal provisions of the law implementing such oversight.” [US House of Representatives, 3/29/2006]

Entity Tags: Jane Harman, Alberto R. Gonzales, George W. Bush, John Conyers, USA Patriot Act, Bush administration (43)

Timeline Tags: Civil Liberties

Judges Harold Baker, Allan Kornblum, and Stanley Brotman.Judges Harold Baker, Allan Kornblum, and Stanley Brotman. [Source: New York Times]Five former judges on the secretive Foreign Intelligence Surveillance Court (FISC) speak out against the continued use of warrantless wiretaps against US citizens, and urge that Congress give the court a formal role in overseeing the program. The five judges include James Robertson, who resigned from the court in apparent protest over the domestic eavesdropping program (see December 21, 2005). Four of the five judges speak at hearings by the Senate Judiciary Committee; Robertson is absent, but parts of a letter by Robertson are entered into testimony. The judges tell the senators that they are skeptical at best about Bush administration claims of inherent presidential authority to order surveillance of US citizens without court approval, and suggest that any evidence obtained through the program might taint criminal prosecutions growing out of the wiretaps. Former FISC judge Harold Baker says Bush is bound by the law “like everybody else.” If a law such as the Foreign Intelligence Surveillance Act (FISA) is passed by Congress and considered constitutional by the courts, then, Baker says, “the president ignores it at the president’s peril.” The other judges, whose identities as FISC judges has until recently been kept from the public, include Stanley Brotman, John Keenan, and William Stafford. Magistrate judge Allan Kornblum, who supervised Justice Department wiretap applications for years, and who also testifies before the committee, calls the public discussion of the FISA court “unprecedented.” Robertson’s statements, from a March 23 letter to committee chairman Arlen Specter, are perhaps the most telling of anything disclosed in the hearings. Robertson agrees with Specter’s proposal “to give approval authority over the administration’s electronic surveillance program” to the court; that proposal is opposed by the Bush administration, and White House-favored legislation by Senator Mike DeWine (R-OH) would not only exempt the program from FISA, but would give President Bush the authority to order wiretaps for 45 days without any Congressional or judicial oversight or authorization. Robertson strongly disagrees with the Bush/DeWine position. “Seeking judicial approval for government activities that implicate constitutional protections is, of course, the American way,” he wrote. Robertson also wrote that the FISA court should not conduct a “general review” of the surveillance operation, as Specter has also proposed. Instead, he wrote that the court should rule on individual warrant applications for eavesdropping under the program lasting 45 or 90 days. FISC is “best situated” for such matters because of the secretive nature of the court. “Its judges are independent, appropriately cleared, experienced in intelligence matters, and have a perfect security record,” he notes. None of the judges directly answer questions about whether the program is legal or not. Baker’s response is emblematic of the judges’ reticence on that issue: he says he feels more comfortable talking about legislative changes to strengthen FISA. “Whether something’s legal or illegal goes beyond that,” he says, “and that’s why I’m shying away from answering that.” [New York Times, 3/29/2006]

Entity Tags: US Department of Justice, Stanley Brotman, Senate Judiciary Committee, William Stafford, Mike DeWine, James Robertson, Bush administration (43), Arlen Specter, Allan Kornblum, John Keenan, George W. Bush, Foreign Intelligence Surveillance Court, Harold Baker, Foreign Intelligence Surveillance Act

Timeline Tags: Civil Liberties

John Dean.John Dean. [Source: Truthdig.com]Nixon White House counsel and Watergate veteran John Dean says that President Bush’s domestic spying program is worse than anything his former boss, Richard Nixon, did while he occupied the Oval Office. Testifying before the Senate Judiciary Committee during a hearing on Senator Russ Feingold’s (D-WI) motion to censure Bush over the program (see March 12, 2006 and After), Dean says Bush “needs to be told he cannot simply ignore a law with no consequences.” Republican committee leaders grudgingly agreed to hold the hearing over the censure motion, but dismiss the motion as little more than an election-year stunt designed by Democrats to, in committee member Orrin Hatch’s (R-UT) words, “weaken the commander in chief” in a time of war. Feingold’s measure, if passed, would condemn Bush’s “unlawful authorization of wiretaps of Americans within the United States without obtaining the court orders required” by the Foreign Intelligence Surveillance Act (FISA). The measure has little chance of passing, with even most Senate Democrats refusing to get behind the resolution. “To me, this is not really and should not be a partisan question,” Dean says. “I think it’s a question of institutional pride of this body, of the Congress of the United States.… [T]he president needs to be reminded that separation of powers does not mean an isolation of powers.” Dean has previously suggested, in his book Worse Than Watergate and in op-eds, that Bush may deserve impeachment over the surveillance program. [Associated Press, 3/31/2006]

Entity Tags: Senate Judiciary Committee, Russell D. Feingold, John Dean, Orrin Hatch, Foreign Intelligence Surveillance Act, Richard M. Nixon, George W. Bush

Timeline Tags: Civil Liberties

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