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Context of 'January 19, 2002: Rumsfeld Tells Military Head Myers Geneva Conventions Do Not Apply to Al-Qaeda and Taliban'

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

Entity Tags: Federalist Society, John C. Yoo

Timeline Tags: Civil Liberties

August 21, 1996: War Crimes Act Becomes Law

The War Crimes Act (HR 3680) becomes Public Law No: 104-192. It prohibits Americans—top officials and soldiers alike—from committing “grave breaches” of the Geneva Conventions. It states: “Whoever, whether inside or outside the United States, commits a grave breach of the Geneva Conventions,” provided that the perpetrator or the victim is a member of the US military or a national of the US, “shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.” [Newsweek, 11/5/2001]

Entity Tags: Geneva Conventions, War Crimes Act

Timeline Tags: Torture of US Captives, Civil Liberties

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

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

Timeline Tags: Civil Liberties

Shortly after the 9/11 attacks, the NSA expands surveillance operations, relying on its own authorities; some sources indicate this includes a massive domestic data mining and call tracking program, and some contend that it is illegal. In a 2006 public briefing, NSA Director Michael Hayden will say, “In the days after 9/11, NSA was using its authorities and its judgment to appropriately respond to the most catastrophic attack on the homeland in the history of the nation.” Following an October 1 briefing by Hayden to the House Intelligence Committee, Representative Nancy Pelosi (D-CA) will write to Hayden on October 11, saying, “[Y]ou indicated that you had been operating since the September 11 attacks with an expansive view of your authorities with respect to the conduct of electronic surveillance” (see October 11, 2001). Some evidence indicates NSA domestic surveillance began even before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001). [Nancy Pelosi, 1/6/2006; Michael Hayden, 1/23/2006]
No Connection to Bush-Authorized Warrantless Domestic Call Monitoring - In his 2006 remarks, Hayden will clearly distinguish between the expansion he initiates under his own authorities, and the warrantless monitoring of calls with one end outside the US authorized later by President Bush (see October 4, 2001), saying, “[E]xcept that they involved NSA, these [Hayden-authorized] programs were not related… to the authorization that the president has recently spoken about.” [Michael Hayden, 1/23/2006]
'Stellar Wind' Is Name of Hayden-Authorized Program - In 2012 interviews, former NSA official William Binney will indicate that “Stellar Wind” is the name of the surveillance program initiated by Hayden. [Wired News, 2/15/2012; Democracy Now!, 4/20/2012] Some sources will refer to the Bush-authorized eavesdropping as being part of the Stellar Wind program. [Newsweek, 12/22/2008]
Differing Views on Authority for Surveillance - In his 2006 briefing, Hayden will say the Fourth Amendment only protects Americans against “unreasonable search and seizure,” and that 9/11 changed what was to be considered “reasonable.” Specifically, if communications are believed to have “[i]nherent foreign intelligence value,” interception of these communications is reasonable. In addition to referring to Hayden’s “view of [his] authorities” as “expansive,” Pelosi’s letter will give another indication that the NSA’s new standard is significantly broader than it was previously, stating, “You indicated that you were treating as a matter of first impression, [redacted] being of foreign intelligence interest.” Hayden will publicly clarify in 2006 that the authority for the NSA’s operational expansion exists under an Executive Order issued by President Reagan, saying, “These decisions were easily within my authorities as the director of NSA under and [sic] executive order; known as Executive Order 12333.” And, he will say, “I briefed the entire House Intelligence Committee on the 1st of October on what we had done under our previously existing authorities” (see October 1, 2001). In her October 11 letter, Pelosi will also write of having concerns about the program that haven’t been resolved due to restrictions on information-sharing with Congress imposed by Bush (see October 11, 2001). Binney, who pioneered the development of certain NSA data mining and surveillance technologies, will come to believe that what the NSA is doing is unconstitutional; he will first take his concerns to Congress (see Before October 31, 2001) and then resign on October 31 (see October 31, 2001). [Nancy Pelosi, 1/6/2006; Michael Hayden, 1/23/2006]
Surveillance Involves Domestic Communications - In his 2006 remarks, Hayden will not say the NSA is only targeting foreign communications under his post-9/11 authorization. Rather, the context of his remarks will indicate he is referring to domestic communications. More specifically, Hayden will state: “If the US person information isn’t relevant, the data is suppressed. It’s a technical term we use; we call it ‘minimized.’ The individual is not even mentioned. Or if he or she is, he or she is referred to as ‘US Person Number One’ or ‘US Person Number Two.’ Now, inherent intelligence value. If the US person is actually the named terrorist, well, that could be a different matter.” Hayden will also reveal that information is being passed to the FBI, an investigative agency with a primarily domestic jurisdiction, saying, “[A]s another part of our adjustment, we also turned on the spigot of NSA reporting to FBI in, frankly, an unprecedented way.” [Michael Hayden, 1/23/2006] One of Pelosi’s statements in her letter to Hayden may indicate an aspect of the domestic component: “You indicated that you were treating as a matter of first impression, [redacted] being of foreign intelligence interest,” she will write. [Nancy Pelosi, 1/6/2006] In a 2011 interview with Jane Mayer published in the New Yorker, Binney will say the NSA was obtaining “billing records on US citizens” and “putting pen registers [call logs] on everyone in the country.” [New Yorker, 5/23/2011] And in a 2012 Wired article, NSA expert James Bamford will write that Binney “explains that the agency could have installed its tapping gear at the nation’s cable landing stations—the more than two dozen sites on the periphery of the US where fiber-optic cables come ashore. If it had taken that route, the NSA would have been able to limit its eavesdropping to just international communications, which at the time was all that was allowed under US law. Instead it chose to put the wiretapping rooms at key junction points throughout the country—large, windowless buildings known as switches—thus gaining access to not just international communications but also to most of the domestic traffic flowing through the US.” Binney’s account is supported by other sources (see October 2001). [Wired News, 2/15/2012]
Surveillance Program Is Massive - Bamford, citing Binney, will write: “Stellar Wind… included not just eavesdropping on domestic phone calls but the inspection of domestic email. At the outset the program recorded 320 million calls a day, he says, which represented about 73 to 80 percent of the total volume of the agency’s worldwide intercepts.” It is unclear exactly when this level of surveillance began. According to whistleblower AT&T employee Mark Klein, construction of secret rooms splitting communications traffic does not begin until Fall 2002 (see Fall 2002). Bamford will write that Binney says, “[T]he taps in the secret rooms dotting the country are actually powered by highly sophisticated software programs that conduct ‘deep packet inspection,’ examining Internet traffic as it passes through the 10-gigabit-per-second cables at the speed of light.” [Wired News, 2/15/2012] Also, Binney’s remark to Jane Mayer that the NSA was “putting pen registers on everyone in the country” indicates the broad scope of the program. [New Yorker, 5/23/2011]

Entity Tags: Religious Society of Friends (Quakers), US Department of Justice, National Security Agency, George W. Bush, Michael Hayden, Al-Qaeda, Foreign Intelligence Surveillance Court, House Intelligence Committee, Nancy Pelosi, Ronald Reagan

Timeline Tags: Civil Liberties

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

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

Timeline Tags: Torture of US Captives, Civil Liberties

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

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

Timeline Tags: Torture of US Captives, Civil Liberties

Former AT&T employee Mark Klein.Former AT&T employee Mark Klein. [Source: PBS]The National Security Agency, as part of its huge, covert, and possibly illegal wiretapping program directed at US citizens (see Spring 2001 and After September 11, 2001), begins collecting telephone records of tens of millions of Americans, using data provided by telecommunications firms such as AT&T, Verizon, and BellSouth (see February 5, 2006). The media will not report on this database until May 2006 (see May 11, 2006). The program collects information on US citizens not suspected of any crime or any terrorist connections. Although informed sources say the NSA is not listening to or recording actual conversations, the agency is using the data to analyze calling patterns in an effort to detect terrorist activity. “It’s the largest database ever assembled in the world,” says one anonymous source. The NSA intends “to create a database of every call ever made.” As a result, the NSA has detailed records of the phone activities of tens of millions of US citizens, from local calls to family and friends to international calls. The three telecommunications companies are working with the NSA in part under the Communications Assistance Act for Law Enforcement (CALEA) (see January 1, 1995 and June 13, 2006) and in part under contract to the agency.
Surveillance Much More Extensive Than Acknowledged - The wiretapping program, which features electronic surveillance of US citizens without court warrants or judicial oversight, is far more extensive than anything the White House or the NSA has ever publicly acknowledged. President Bush will repeatedly insist that the NSA focuses exclusively on monitoring international calls where one of the call participants is a known terrorist suspect or has a connection to terrorist groups (see December 17, 2005 and May 11, 2006), and he and other officials always insist that domestic calls are not monitored. This will be proven false. The NSA has become expert at “data mining,” sifting through reams of information in search of patterns. The warrantless wiretapping database is one source of information for the NSA’s data mining. As long as the NSA does not collect “personal identifiers”—names, Social Security numbers, street addresses, and the like—such data mining is legal. But the actual efficacy of the wiretapping program in learning about terrorists and possibly preventing terrorist attacks is unclear at best. And many wonder if the NSA is not repeating its activities from the 1950s and 1960s, when it conducted “Operation Shamrock” (see 1945-1975), a 20-year program of warrantless wiretaps of international phone calls at the behest of the CIA and other intelligence agencies. Operation Shamrock, among other things, led to the 1978 passage of the Foreign Intelligence Surveillance Act (see 1978). [USA Today, 5/11/2006] In May 2006, former NSA director Bobby Ray Inman will say, “[T]his activity is not authorized” (see May 12, 2006). [Democracy Now!, 5/12/2006]
Secret Data Mining Center - In May 2006, retired AT&T technician Mark Klein, a 22-year veteran of the firm, will file a court affidavit saying that he saw the firm construct a secret data-mining center in its San Francisco switching center that would let the NSA monitor domestic and international communications (see January 2003). And former AT&T workers say that, as early as 2002, AT&T has maintained a secret area in its Bridgeton, Missouri, facility that is likely being used for NSA surveillance (see Late 2002-Early 2003).
Domestic Surveillance Possibly Began Before 9/11 - Though Bush officials admit to beginning surveillance of US citizens only after the 9/11 attacks, some evidence indicates that the domestic surveillance program began some time before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001).

Entity Tags: Terrorist Surveillance Program, Verizon Communications, Mark Klein, George W. Bush, AT&T, BellSouth, Central Intelligence Agency, Communications Assistance for Law Enforcement Act (CALEA), Foreign Intelligence Surveillance Act, Qwest, National Security Agency

Timeline Tags: Civil Liberties

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

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

Timeline Tags: Civil Liberties

The Geneva Conventions are mentioned in a memo issued the day after the publication of the Heritage Foundation paper (see November 5, 2001), but only to suggest that suspected terrorists should not be entitled to the rights enclosed in them. Patrick F. Philbin, a deputy in the OLC, sends a confidential 35-page memo to the White House legal counsel Gonzales, arguing that the president, as Commander-in-Chief, has “inherent authority” to establish military commissions without authorization from the US Congress. The 9/11 attacks are themselves “plainly sufficient” to justify the application of the laws of war. Furthermore, putting terrorists on trial under the laws of war, “does not mean,” according to Philbin, “that terrorists will receive the protections of the Geneva Conventions or the rights that laws of war accord to lawful combatants.” The Philbin memo will serve as a basis for a Presidential order (see November 13, 2001) establishing the option of military commissions, which will be drafted by Deputy White House Counsel Timothy E. Flanigan and David S. Addington, the legal counsel to Vice President Cheney. [New York Times, 10/24/2004]

Entity Tags: Patrick F. Philbin, Alberto R. Gonzales

Timeline Tags: Torture of US Captives

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

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

Timeline Tags: Torture of US Captives, Civil Liberties

Two psychologists, James Mitchell and Bruce Jessen, draft a paper on the use of harsh interrogations to break suspected al-Qaeda terrorists. Mitchell, a retired Air Force psychologist, and Jessen, the senior psychologist in charge of the Joint Personnel Recovery Agency (JPRA)‘s Survival, Evasion, Resistance, and Escape (SERE) training program, will soon begin consulting for both the Pentagon and a variety of US intelligence agencies on the harsh methods—torture—they advocate. Jessen proposes an interrogation program similar to those later adopted by the CIA and Pentagon. His proposal recommends creating what he calls an “exploitation facility,” off-limits to outside observers including journalists and representatives of the International Committee of the Red Cross, the agency detailed to ensure that captives in the custody of other nations are being treated properly in accordance with the Geneva Conventions. In the “exploitation facility,” interrogators would use such tactics as sleep deprivation, physical violence, and waterboarding to break the resistance of captured terrorism suspects. JPRA officials will later add their own suggestions to Jessen’s initial list, including sexually provocative acts by female interrogators and the use of military dogs. Most of these techniques are considered torture under the Geneva Conventions and the Convention Against Torture. [Washington Post, 4/22/2009]

Entity Tags: Geneva Conventions, Bruce Jessen, Central Intelligence Agency, Convention Against Torture, Joint Personnel Recovery Agency, James Elmer Mitchell, US Department of Defense, International Committee of the Red Cross

Timeline Tags: Torture of US Captives

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

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

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

William Howard Taft IV.William Howard Taft IV. [Source: PBS]William Howard Taft IV, the State Department’s chief legal adviser, responds to John Yoo’s January 9,2002, memo (see January 9, 2002) saying that Yoo’s analysis is “seriously flawed.” Taft writes: “In previous conflicts, the United States has dealt with tens of thousands of detainees without repudiating its obligations under the [Geneva] Conventions. I have no doubt we can do so here, where a relative handful of persons is involved.” [Newsweek, 5/24/2004] Applying the Geneva Conventions, according to Taft, would demonstrate that the United States “bases its conduct on its international legal obligations and the rule of law, not just on its policy preferences.” Taft ends with a scorching criticism. “Your position is, at this point, erroneous in its substance and untenable in practice. Your conclusions are as wrong as they are incomplete. Let’s talk.” [Le Monde (Paris), 10/25/2004]

Entity Tags: William Howard Taft IV, John C. Yoo

Timeline Tags: Torture of US Captives, Civil Liberties

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

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

Timeline Tags: Torture of US Captives, Civil Liberties

Defense Secretary Rumsfeld sends a memo to Joint Chiefs of Staff Chairman General Richard Myers informing him that Bush has declared the Geneva Conventions invalid with regard to conflicts with al-Qaeda and the Taliban (see January 18-25, 2002). In this “Memorandum for Chairman of the Joint Chiefs of Staff,” Rumsfeld states: “The United States has determined that al-Qaeda and Taliban individuals under the control of the Department of Defense are not entitled to prisoner of war status for purposes of the Geneva Conventions of 1949.” Nevertheless, “[t]he Combatant Commanders shall, in detaining al-Qaeda and Taliban individuals under the control of the Department of Defense, treat them humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions of 1949.” [US Department of Defense, 1/19/2002 pdf file] The same day, the memorandum is disseminated as an order by the Joint Chiefs of Staff. [Chairman of the Joint Chiefs of Staff, 1/19/2002 pdf file]

Entity Tags: Richard B. Myers, Donald Rumsfeld

Timeline Tags: Torture of US Captives

Attorney General John Ashcroft publicly defends the president’s decision (see January 18-25, 2002) to deny detainees the protections of Geneva Conventions. He calls the detainees “terrorists” who “are uniquely dangerous.” [CNN, 1/22/2002]

Entity Tags: John Ashcroft

Timeline Tags: Torture of US Captives

White House lawyers Alberto Gonzales and David Addington visit Guantanamo Bay. On the flight back, Gonzales agrees with Addington that all Guantanamo detainees should be designated eligible for trial by military commission under the president’s November 13 Military Order (see January 20, 2002). [New York Times, 10/24/2004]

Entity Tags: David S. Addington, Alberto R. Gonzales

Timeline Tags: Torture of US Captives

White House lawyer Alberto Gonzales completes a draft memorandum to the president advising him not to reconsider his decision (see January 18-25, 2002) declaring Taliban and al-Qaeda fighters ineligible for prisoner of war status as Colin Powell has apparently recommended. [US Department of Justice, 1/25/2004 pdf file; Newsweek, 5/24/2004] The memo recommends that President Bush accept a recent Office of Legal Counsel (OLC) memo saying that the president has the authority to set aside the Geneva Conventions as the basis of his policy (see January 9, 2002). [Savage, 2007, pp. 146]
Geneva No Longer Applies, Says Gonzales - Gonzales writes to Bush that Powell “has asked that you conclude that GPW [Third Geneva Convention] does apply to both al-Qaeda and the Taliban. I understand, however, that he would agree that al-Qaeda and the Taliban fighters could be determined not to be prisoners of war (POWs) but only on a case-by-case basis following individual hearings before a military board.” Powell believes that US troops will be put at risk if the US renounces the Geneva Conventions in relation to the Taliban. Rumsfeld and his chairman of the Joint Chiefs of Staff, Gen. Richard B. Myers, allegedly agree with Powell’s argument. [New York Times, 10/24/2004] But Gonzales says that he agrees with the Justice Department’s Office of Legal Counsel, which has determined that the president had the authority to make this declaration on the premise that “the war against terrorism is a new kind of war” and “not the traditional clash between nations adhering to the laws of war that formed the backdrop for GPW [Geneva Convention on the treatment of prisoners of war].” Gonzales thus states, “In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.” [Newsweek, 5/24/2004] Gonzales also says that by declaring the war in Afghanistan exempt from the Geneva Conventions, the president would “[s]ubstantially [reduce] the threat of domestic criminal prosecution under the War Crimes Act [of 1996]” (see August 21, 1996). The president and other officials in the administration would then be protected from any future “prosecutors and independent counsels who may in the future decide to pursue unwarranted charges.” [New York Times, 5/21/2004; Newsweek, 5/24/2004]
Memo Actually Written by Cheney's Lawyer - Though the memo is released under Gonzales’s signature, many inside the White House do not believe the memo was written by him; it has an unorthodox format and a subtly mocking tone that does not go with Gonzales’s usual style. A White House lawyer with direct knowledge of the memo later says it was written by Cheney’s chief lawyer, David Addington. Deputy White House counsel Timothy Flanigan passed it to Gonzales, who signed it as “my judgment” and sent it to Bush. Addington’s memo quotes Bush’s own words: “the war against terrorism is a new kind of war.” [Washington Post, 6/24/2007]
Powell 'Hits the Roof' over Memo - When Powell reads the memo (see January 26, 2002), he reportedly “hit[s] the roof” and immediately arranges for a meeting with the president (see January 25, 2002). [Newsweek, 5/24/2004]

Entity Tags: George W. Bush, Office of Legal Counsel (DOJ), Geneva Conventions, Alberto R. Gonzales, Colin Powell, David S. Addington, Al-Qaeda, Taliban, Richard B. Myers

Timeline Tags: Torture of US Captives, Civil Liberties

US Secretary of State Colin Powell responds to Alberto Gonzales’ January 25 draft memo to the president (see January 25, 2002). He argues that it does not provide the president with a balanced view on the issue of whether or not to apply the Geneva Conventions to the conflict in Afghanistan. Powell lists several problems that could potentially result from exempting the conflict from the Conventions as Gonzales recommends. For example, he notes that it would “reverse over a century of US policy and practice in supporting the Geneva conventions and undermine the protections of the law of war for our troops, both in this specific conflict and in general.” The decision will furthermore have “a high cost in terms of negative international reaction.” It will “undermine public support among critical allies, making military cooperation more difficult to sustain,” and other states would “likely have legal problems with extradition or other forms of cooperation in law enforcement, including in bringing terrorists to justice.” But perhaps most ominously, Powell charges that the proposed decision “may provoke some individual foreign prosecutors to investigate and prosecute our officials and troops” and “make us more vulnerable to domestic and legal challenge.” The end of the memo consists of several rebuttals to points that Gonzales made in his memo. [US Department of State, 1/26/2004 pdf file; New York Times, 5/21/2004; Newsweek, 5/24/2004]

Entity Tags: Geneva Conventions, Alberto R. Gonzales, Colin Powell

Timeline Tags: Torture of US Captives, Civil Liberties

In a reply to White House Counsel Alberto Gonzales (see January 25, 2002), the State Department’s Legal Director, William Howard Taft IV, tries again (see January 11, 2002) to put his view forward supporting obeying the Geneva Conventions. He writes: “The president should know that a decision that the Conventions do apply is consistent with the plain language of the Conventions and the unvaried practice of the United States in introducing its forces into conflict over fifty years.” [US Attorney General, 2/1/2002]

Entity Tags: William Howard Taft IV, Alberto R. Gonzales

Timeline Tags: Torture of US Captives, Civil Liberties

The White House declares that the United States will apply the Geneva Conventions to the conflict in Afghanistan, but will not grant prisoner-of-war status to captured Taliban and al-Qaeda fighters. Though Afghanistan was party to the 1949 treaty, Taliban fighters are not protected by the Conventions, the directive states, because the Taliban is not recognized by the US as Afghanistan’s legitimate government. Likewise, al-Qaeda fighters are not eligible to be protected under the treaty’s provisions because they do not represent a state that is party to the Conventions either.
Administration Will Treat Detainees Humanely 'Consistent' with Geneva - In the memo, President Bush writes that even though al-Qaeda detainees do not qualify as prisoners of war under Geneva, “as a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.” The presidential directive is apparently based on Alberto Gonzales’s January 25 memo (see January 25, 2002) and a memo from Vice President Cheney’s chief of staff, David Addington (see January 25, 2002).
Bush Chooses Not to Suspend Geneva between US and Afghanistan - The directive also concludes that Bush, as commander in chief of the United States, has the authority to suspend the Geneva Conventions regarding the conflict in Afghanistan, should he feel necessary: Bush writes, “I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time.” Though not scheduled for declassification until 2012, the directive will be released by the White House in June 2004 to demonstrate that the president never authorized torture against detainees from the wars in Afghanistan and Iraq. [George W. Bush, 2/7/2002 pdf file; CNN, 2/7/2002; Newsweek, 5/24/2004; Truthout (.org), 1/19/2005; Dubose and Bernstein, 2006, pp. 191]
Overriding State Department Objections - Bush apparently ignores or overrides objections from the State Department, including Secretary of State Colin Powell (see January 25, 2002) and the department’s chief legal counsel, William Howard Taft IV (see January 25, 2002). Both Powell and Taft strenuously objected to the new policy. [Savage, 2007, pp. 147]
Ignoring Promises of Humane Treatment - The reality will be somewhat different. Gonzales laid out the arguments for and against complying with Geneva in an earlier memo (see January 18-25, 2002), and argued that if the administration dispensed with Geneva, no one could later be charged with war crimes. Yet, according to Colin Powell’s chief of staff, Lawrence Wilkerson, sometime after the Bush memo is issued, Vice President Cheney and Defense Secretary Rumsfeld decide to ignore the portions promising humane treatment for prisoners. “In going back and looking at the deliberations,” Wilkerson later recalls, “it was clear to me that what the president had decided was one thing and what was implemented was quite another thing.” [Dubose and Bernstein, 2006, pp. 190-191]

Entity Tags: Geneva Conventions, George W. Bush, Colin Powell, Lawrence Wilkerson, William Howard Taft IV, Richard (“Dick”) Cheney, Bush administration (43)

Timeline Tags: Torture of US Captives, Civil Liberties

The Salt Pit, a secret CIA prison near Kabul, Afghanistan.The Salt Pit, a secret CIA prison near Kabul, Afghanistan. [Source: Space Imaging Middle East]President George Bush signs a secret order authorizing the CIA to set up a network of secret detention and interrogation centers outside the United States where high value prisoners can be interrogated “with unprecedented harshness.” [Newsweek, 5/24/2004] This takes place shortly after February 7, 2002, when Bush declared that al-Qaeda and Taliban prisoners were not subject to the Geneva Convention (see February 7, 2002). The first secret CIA prison will begin operating in Thailand in March 2002 (see March 2002).

Entity Tags: George W. Bush, Central Intelligence Agency

Timeline Tags: Torture of US Captives, Complete 911 Timeline

Pentagon psychologist Bruce Jessen, who serves as the Joint Personnel Recovery Agency (JPRA)‘s senior psychologist for its SERE (Survival, Evasion, Resistance, and Escape) training program, releases an internal draft report for reverse-engineering SERE training techniques to be used against enemy detainees. SERE training teaches soldiers to resist torture inflicted on them by enemy captors. Jessen’s report, a follow-up to a previous report authored by him and fellow military psychologist James Mitchell (see January 2002 and After), calls for the creation of a secret “exploitation facility” that would be off-limits to oversight bodies such as the International Committee of the Red Cross, and would be kept clear of reporters. Jessen’s plan also describes the fundamentals of an “enhanced interrogation” methodology. According to a 2009 press report, it advocated techniques “strikingly similar to those that later surfaced at Abu Ghraib and elsewhere: nudity, stress positions, hoods, treatment like animals, sleep disruption, loud music and flashing lights, and exposure to extreme temperatures.” The techniques also include waterboarding, used 266 times against two high-value al-Qaeda detainees (see April 16, 2009 and April 18, 2009). The report notes: “Typically, those who play the part of interrogators in SERE school neither are trained interrogators nor are they qualified to be. Their job is to train our personnel to resist providing reliable information to our enemies.” However, senior JPRA and Pentagon officials will ignore Jessen’s caveats and authorize the application of SERE methods to the interrogations of al-Qaeda detainees (see April - June 2002). Three months later, JPRA will begin training CIA agents in SERE-derived techniques (see July 2002), including a two-day session on waterboarding (see July 1-2, 2002). Shortly after the training sessions, Pentagon general counsel William Haynes will ask JPRA for more information on SERE techniques. Haynes’s deputy, Richard Shiffrin, will later confirm “that a purpose of the request was to ‘reverse engineer’ the techniques.” [Agence France-Presse, 4/22/2009] In 2009, the press learns that Mitchell and Jessen are paid $1,000 a day to train military interrogators (see April 30, 2009).

Entity Tags: Joint Personnel Recovery Agency, Bruce Jessen, Richard Shiffrin, US Department of Defense, William J. Haynes, Central Intelligence Agency, James Elmer Mitchell

Timeline Tags: Torture of US Captives

A new interrogation unit arrives at the Bagram Collection Point (BCP), the improvised interrogation and holding facility at Bagram Air Force Base (see October 2001). The unit is headed by Lieutenant Carolyn Wood (see January 22, 2003-May 8, 2003), who leads a 13-man unit from the 525th Military Intelligence Brigade at Fort Bragg, NC. Wood’s unit is augmented by six Arabic-speaking reservists from the Utah National Guard. Many in the group, consolidated under Company A of the 519th Military Intelligence Battalion, are counterintelligence specialists with no background in interrogation. Only two of the soldiers have ever questioned actual prisoners. The training they receive is ad hoc and minimal. The noncommissioned officer in charge of the interrogators, Staff Sergeant Steven Loring, will later tell investigators, “There was nothing that prepared us for running an interrogation operation” like the one at Bagram. Nor are the rules of engagement clear. The platoon uses the standard interrogations guide, Section 34-52 of the Army Fleld Manual, and an order from Defense Secretary Rumsfeld to treat prisoners “humanely” and, when possible, within the strictures of the Geneva Conventions. But when President Bush determines in February 2002 that the Conventions do not apply to Taliban and al-Qaeda captives (see February 7, 2002), the interrogators decide they “could deviate slightly from the rules,” in the words of Utah reservist Sergeant James Leahy. “There was the Geneva Conventions for enemy prisoners of war, but nothing for terrorists,” Leahy will tell Army investigators. And the detainees, senior intelligence officers say, are to be considered terrorists until proved otherwise. One group of soldiers is later dubbed “the Testosterone Gang”; they decorate their tent with a Confederate flag, spend large amounts of time bodybuilding, and quickly earn a reputation as some of the most brutal of the soldiers at Bagram. [New York Times, 5/20/2005]

Entity Tags: US Department of the Army, Carolyn A. Wood, Donald Rumsfeld, Steven Loring, George W. Bush, James Leahy

Timeline Tags: Torture of US Captives

Jay Bybee.Jay Bybee. [Source: Public domain]The Justice Department’s Office of Legal Counsel (OLC) sends a non-classified memo to White House Counsel Alberto Gonzales, offering the opinion that a policy allowing suspected al-Qaeda members to be tortured abroad “may be justified.” [US Department of Justice, 8/1/2002 pdf file] This memo will later be nicknamed the “Golden Shield” by insiders in the hopes that it will protect government officials from later being charged with war crimes (see April 2002 and After). [ABC News, 4/9/2008]
Multiple Authors - The 50-page “torture memo” is signed and authored by Jay S. Bybee, head of OLC, and co-authored by John Yoo, a deputy assistant attorney general. It is later revealed that Yoo authored the memo himself, in close consultation with Vice President Cheney’s chief adviser David Addington, and Bybee just signed off on it (see December 2003-June 2004). [Washington Post, 6/9/2004] Deputy White House counsel Timothy Flanigan also contributed to the memo. Addington contributed the claim that the president may authorize any interrogation method, even if it is plainly torture. Addington’s reasoning: US and treaty law “do not apply” to the commander in chief, because Congress “may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” [Washington Post, 6/25/2007]
Statute Only Prohibits 'Extreme Acts' - Gonzales had formally asked for the OLC’s legal opinion in response to a request by the CIA for legal guidance. A former administration official, quoted by the Washington Post, says the CIA “was prepared to get more aggressive and re-learn old skills, but only with explicit assurances from the top that they were doing so with the full legal authority the president could confer on them.” [Washington Post, 6/9/2004] “We conclude that the statute, taken as a whole,” Bybee and Yoo write, “makes plain that it prohibits only extreme acts.” Addressing the question of what exactly constitute such acts of an extreme nature, the authors proceed to define torture as the infliction of “physical pain” that is “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Purely mental pain or suffering can also amount to “torture under Section 2340,” but only if it results “in significant psychological harm of significant duration, e.g. lasting for months or even years.” [Washington Post, 6/9/2004]
Torture Legal and Defensible - Bybee and Yoo appear to conclude that any act short of torture, even though it may be cruel, inhuman or degrading, would be permissible. They examine, for example, “international decisions regarding the use of sensory deprivation techniques.” These cases, they notice, “make clear that while many of these techniques may amount to cruel, inhuman or degrading treatment, they do not produce pain or suffering of the necessary intensity to meet the definition of torture. From these decisions, we conclude that there is a wide range of such techniques that will not rise to the level of torture.” More astounding is Bybee and Yoo’s view that even torture can be defensible. “We conclude,” they write, “that, under the current circumstances, necessity or self-defense may justify interrogation methods that might violate Section 2340A.” Inflicting physical or mental pain might be justified, Bybee and Yoo argue, “in order to prevent further attacks on the United States by the al-Qaeda terrorist network.” In other words, necessity or self-defense may justify torture. Moreover, “necessity and self-defense could provide justifications that would eliminate any criminal liability.” [Washington Post, 6/8/2004] International anti-torture rules, furthermore, “may be unconstitutional if applied to interrogations” of suspected terrorists. [US News and World Report, 6/21/2004] Laws prohibiting torture would “not apply to the president’s detention and interrogation of enemy combatants” in the “war on terror,” because the president has constitutional authority to conduct a military campaign. [Washington Post, 6/27/2004]
Protecting US Officials from Prosecution - In 2007, author and reporter Charlie Savage will write: “In case an interrogator was ever prosecuted for violating the antitorture law (see October 21, 1994 and January 26, 1998, Yoo laid out page after page of legal defenses he could mount to get the charges dismissed. And should someone balk at this strained interpretation of the law, Yoo offered his usual trump card: Applying the antitorture law to interrogations authorized by the president would be unconstitutional, since only the commander in chief could set standards for questioning prisoners.” [Savage, 2007, pp. 155-156]
Virtually Unrestricted Authority of President - “As commander in chief,” the memo argues, “the president has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy.” [Washington Post, 6/9/2004] According to some critics, this judgment—which will be echoed in a March 2003 draft Pentagon report (see March 6, 2003)—ignores important past rulings such as the 1952 Supreme Court decision in Youngstown Steel and Tube Co v. Sawyer, which determined that the president, even in wartime, is subject to US laws. [Washington Post, 6/9/2004] The memo also says that US Congress “may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” [Washington Post, 6/27/2004]
Ashcroft Refuses to Release Memo - After the memo’s existence is revealed, Attorney General John Ashcroft denies senators’ requests to release it, and refuses to say if or how the president was involved in the discussion. “The president has a right to hear advice from his attorney general, in confidence,” he says. [New York Times, 6/8/2004; Bloomberg, 6/8/2004; Washington Post, 6/9/2004] Privately, Ashcroft is so irritated by Yoo’s hand-in-glove work with the White House that he begins disparagingly referring to him as “Dr. Yes.” [New York Times, 10/4/2007]
Only 'Analytical' - Responding to questions about the memo, White House press secretary Scott McClellan will claim that the memo “was not prepared to provide advice on specific methods or techniques,” but was “analytical.” But the 50-page memo seems to have been considered immensely important, given its length and the fact that it was signed by Bybee. “Given the topic and length of opinion, it had to get pretty high-level attention,” Beth Nolan, a former White House counsel from 1999-2001, will tell reporters. This view is confirmed by another former Office of Legal Counsel lawyer who says that unlike documents signed by deputies in the Office of Legal Counsel, memorandums signed by the Office’s head are considered legally binding. [Washington Post, 6/9/2004]
Memo Will be Withdrawn - Almost two years later, the OLC’s new head, Jack Goldsmith, will withdraw the torture memos, fearing that they go far beyond anything countenanced by US law (see December 2003-June 2004).
Memo Addresses CIA Concerns - The administration, particularly the axis of neoconservatives centered around Cheney’s office, has enthusiastically advocated the use of violent, abusive, and sometimes tortuous interrogation techniques, though the US has never endorsed such tactics before, and many experts say such techniques are counterproductive. The CIA, responding to the desires from the White House, hastily put together a rough program after consulting with intelligence officials from Egypt and Saudi Arabia, where detainees are routinely tortured and killed in captivity, and after studying methods used by former Soviet Union interrogators. The legal questions were continuous. The former deputy legal counsel for the CIA’s Counterterrorist Center, Paul Kelbaugh, recalls in 2007: “We were getting asked about combinations—‘Can we do this and this at the same time?… These approved techniques, say, withholding food, and 50-degree temperature—can they be combined?’ Or ‘Do I have to do the less extreme before the more extreme?’” The “torture memo” is designed to address these concerns. [New York Times, 10/4/2007]

Entity Tags: John C. Yoo, Paul Kelbaugh, Timothy E. Flanigan, Scott McClellan, John Ashcroft, Richard (“Dick”) Cheney, Jay S. Bybee, Office of Legal Counsel (DOJ), David S. Addington, Alberto R. Gonzales, Beth Nolan, Al-Qaeda, Charlie Savage, Central Intelligence Agency, Jack Goldsmith

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

Gen. Rick Baccus is relieved of his duties at Guantanamo and also as an officer in the Rhode Island National Guard. With regard to the latter position, his commanding officer in the Rhode Island National Guard, Maj. Gen. Reginald Centracchio, says he has fired him for reasons that “culminated in my losing trust and confidence in him.” One of those reasons, a National Guard spokesman says, is failing to keep headquarters up to date with reports on the well-being of troops. Baccus denies the allegation and expresses surprise. “I’m a little amazed that after being deployed for seven months, separated from my wife, family, and my job and being called to active duty, this is the kind of reception I’m getting.” [Guardian, 10/16/2002] In response to the allegation that his treatment of prisoners made it more difficult for the interrogators, Baccus states that “in no instance did I interfere with interrogations.” [Guardian, 10/16/2002] Paradoxically, this is exactly what the Pentagon is planning to change. Baccus’s sacking coincides with the merger of his Joint Task Force (JTF) 160 with military intelligence unit JTF-170 into a new JTF-GTMO. By doing this Rumsfeld will give military intelligence control of all aspects of the camp, including the MPs. [Newsweek, 5/24/2004] Military police, now called the Joint Detention Operations Group (JDOG), and the Joint Intelligence Group report directly to the commander of JTF-GTMO. The MPs are fully incorporated into a joint effort of extracting information from prisoners. Vice Admiral Albert T. Church III, naval inspector general, will later describe the arrangement during a press briefing in May 2004: “They monitor the detainees, they monitor their behavior, they monitor who the leaders are, who the followers are, they monitor what is said and they ask for an interpreter if there’s a lot of conversation going on. They’ll know eating habits, and they’ll record this in a management information system, which could be useful to the intelligence group, during the interrogations.” [US Department of Defense, 5/12/2004]

Entity Tags: Rick Baccus, Reginald Centracchio, Albert T. Church III, Donald Rumsfeld

Timeline Tags: Torture of US Captives

Two days after General Rick Baccus has been relieved from duty as the guard commander at Guantanamo (see October 9, 2002), and almost one and a half months since the writing of the Office of Legal Counsel’s (OLC) August memo on torture (see August 1, 2002), military intelligence at Guantanamo begin suggesting new rules of interrogation. Lieutenant Colonel Jerald Phifer, Director J2, sends a memo, to Major General Michael E. Dunlavey, Commander of Joint Task Force (JTF) 170, requesting approval for more severe interrogation techniques. [US Department of Defense, 10/11/2002 pdf file; New Yorker, 2/27/2008] In 2009, Senator Carl Levin (D-MI) will write (see April 21, 2009) that Dunlavey’s request is sparked by recent reports on the use of SERE training techniques for interrogation purposes (see January 2002 and After and April 16, 2002). [Huffington Post, 4/21/2009]
Three Categories of Techniques - The memo states, “The current guidelines for interrogation procedures at GTMO [Guantanamo] limit the ability of interrogators to counter advanced resistance.” Phifer proposes three categories of techniques. The mildest, which includes yelling and weak forms of deception, are included in category one. Category two techniques are more severe and require approval by an “interrogator group director.” They include the use of stress positions for up to four hours; use of falsified documents; isolation for up to 30 days; sensory deprivation and hooding; 20-hour interrogations; removal of comfort and religious items; replacing hot food with cold military rations; removal of clothing; forced grooming, including the shaving of beards; and playing on detainees’ phobias to induce stress, such as a fear of dogs. The harshest techniques, listed in category three, are to be reserved for a “very small percentage of the most uncooperative detainees” and only used with permission from the commander of the prison. These methods include using non-injurious physical contact like poking or grabbing; threatening a detainee with death or severe pain or threatening that a family member would be subjected to such harm; exposing him to cold weather or water; using a wet towel to “induce the misperception of suffocation.” [US Department of Defense, 10/11/2002 pdf file; New Yorker, 2/27/2008]
Desire to Extract More Information from Detainee - The request is prompted in part by military intelligence’s belief that Guantanamo detainee Mohamed al-Khatani has more information than the FBI has managed to extract from him. “Al-Khatani is a person in… whom we have considerable interest,” Dell’Orto will explain during a 2004 press briefing at the White House. “He has resisted our techniques. And so it is concluded at Guantanamo that it may be time to inquire as to whether there may be more flexibility in the type of techniques we use on him.” [Washington File, 6/23/2004]
JAG Officer Concludes Tactics are Legal - The same day, a staff judge advocate, Lieutenant Colonel Diane E. Beaver, reviews Phifer’s proposed techniques for legality and, while making qualifications and recommending further review, concludes in a memo to Dunlavey that they are legal. Also the same day, Dunlavey sends the list of techniques to his superior, General James T. Hill, commander of the Southern Command, requesting approval for their use. Dunlavey writes: “Although [the techniques currently employed] have resulted in significant exploitable intelligence the same methods have become less effective over time. I believe the methods and techniques delineated in the accompanying J-2 memorandum will enhance our efforts to extract additional information.” [US Department of Defense, 10/11/2002 pdf file] Beaver concludes that since President Bush had decided that all the detainees “are not protected by the Geneva Conventions” (see January 18-25, 2002, February 7, 2002), all of the desired techniques are allowable because “no international body of law directly applies.” [Savage, 2007, pp. 178]

Entity Tags: Rick Baccus, George W. Bush, James T. Hill, Carl Levin, Daniel J. Dell’Orto, Diane E. Beaver, Michael E. Dunlavey, Mohamed al-Khatani

Timeline Tags: Torture of US Captives

Gen. James T. Hill, commander of the Southern Command, sends a memo to Chairman of the Joint Chiefs of Staff Richard Myers providing him information on the new interrogation techniques that have been requested for use at Guantanamo (see October 11, 2002). He says that new methods are needed because, “despite our best efforts, some detainees have tenaciously resisted our current interrogation methods.” He says he thinks Categories I and II techniques are “legal and humane.” He only questions the legality of category three techniques, recommending additional legal advice from lawyers at the Pentagon and the Justice Department. Hill writes: “I am particularly troubled by the use of implied or expressed threats of death of the detainee or his family. However, I desire to have as many options as possible at my disposal….” [US Department of Defense, 10/25/2002 pdf file] Hill later says, “We weren’t sure in the beginning what we had; we’re not sure today what we have. There are still people who do not talk to us. We could have the keys to the kingdom and not know it.” [New York Times, 6/21/2004]

Entity Tags: James T. Hill, Richard B. Myers

Timeline Tags: Torture of US Captives

The new commander at the Guantanamo detention facility, General Geoffrey Miller, receives a “voco”—a vocal command—to begin aggressively interrogating suspected “20th hijacker” Mohamed al-Khatani (see August 8, 2002-January 15, 2003). This is well before Defense Secretary Donald Rumsfeld gives written authorization for these techniques to be used (see November 27, 2002 and December 2, 2002), but after the request had been submitted for approval (see October 11, 2002). Considering Miller’s rank, it seems unlikely that anyone lower in the chain of command than Rumsfeld would have issued the order, and Rumsfeld is unlikely to make such a “voco” without the support of Pentagon general counsel William J. Haynes. The interrogation log of al-Khatani for November 23 indicates the immediate effect of the “voco”: “The detainee arrives at the interrogation booth. His hood is removed and he is bolted to the floor.” [Vanity Fair, 5/2008]

Entity Tags: William J. Haynes, Donald Rumsfeld, Mohamed al-Khatani, Geoffrey D. Miller

Timeline Tags: Torture of US Captives

David Brant, the head of the Naval Criminal Investigative Service (NCIS), approaches Naval General Counsel Alberto Mora about the abuse of detainees in US custody at Guantanamo, abuse perhaps authorized at a “high level” in Washington. Brant is in charge of a team of NCIS agents working with the FBI at Guantanamo, called the Criminal Investigative Task Force. The task force’s job is to obtain incriminating information from the detainees for use in future trials or tribunals.
Troubling Information - Brant has learned troubling information about the interrogations at Guantanamo (see Early December, 2002). Brant had never discussed anything so sensitive with Mora before, and later recalls, “I wasn’t sure how he would react.” Brant had already discussed the allegations of abuse with Army officials, since they have command authority over the detainees, and to Air Force officials as well, but goes to Mora after deciding that no one in either branch seems to care. He is not hopeful that Mora will feel any differently.
Worried about Abuse - Brant goes to Mora because, he will recall, he didn’t want his investigators to “in any way observe, condone, or participate in any level of physical or in-depth psychological abuse. No slapping, deprivation of water, heat, dogs, psychological abuse. It was pretty basic, black and white to me.… I didn’t know or care what the rules were that had been set by the Department of Defense at that point. We were going to do what was morally, ethically, and legally permissible.” Brant had ordered his task force members to “stand clear and report” any abusive tactics that they might witness.
Mora 'Rocked' - Brant is not disappointed in Mora’s reactions. A military official who works closely with Brant will later recall that the news “rocked” Mora. The official will add that Mora “was visionary about this,” adding, “He quickly grasped the fact that these techniques in the hands of people with this little training spelled disaster.” Brant asks if Mora wants to hear more about the situation; Mora will write in a 2004 memo (see July 7, 2004), “I responded that I felt I had to.”
Second Meeting - Brant meets with Mora the next day, and shows Mora part of the transcript of the [Mohamed al-Khatani] interrogations. Mora is shocked when Brant tells him that the abuse was not “rogue activity,” but apparently sanctioned by the highest levels in the Bush administration. Mora will write in his memo, “I was under the opinion that the interrogation activities described would be unlawful and unworthy of the military services.” Mora will recall in a 2006 interview: “I was appalled by the whole thing. It was clearly abusive, and it was clearly contrary to everything we were ever taught about American values.” Shocked, Mora will learn more from his counterpart in the Army (see December 18, 2002), and determine that the abusive practices need to be terminated.
Meeting with Pentagon Lawyer - He will bring his concerns to the Pentagon’s general counsel, William J. Haynes, and will leave that meeting hopeful that Haynes will put an end to the extreme measures being used at Guantanamo (see December 20, 2002). But when Mora returns from Christmas vacation, he will learn that Haynes has done nothing. Mora will continue to argue against the torture of detainees (see Early January, 2003). [New Yorker, 2/27/2006; Vanity Fair, 5/2008]

Entity Tags: William J. Haynes, David Brant, Alberto Mora, Naval Criminal Investigative Service, US Department of Defense

Timeline Tags: Torture of US Captives, Civil Liberties

Naval General Counsel Alberto Mora, concerned about information he has learned about detainee abuse at Guantanamo (see December 17-18, 2002), calls his friend Steven Morello, the Army’s general counsel, and asks if he knows anything about the subject. Morello replies: “I know a lot about it. Come on down.”
'The Package' - In Morello’s office, Mora views what he calls “the package”—a collection of secret military documents that outline the origins of the coercive interrogation policies at Guantanamo. It begins with a request to use more aggressive interrogation tactics at Guantanamo (see October 11, 2002). Weeks later, the new head of the detention facility, Major General Geoffrey Miller, pushes senior Pentagon officials for more leeway in interrogations. On December 2, Defense Secretary Donald Rumsfeld gave his approval for the use of several more intensive interrogation tactics, including the use of “hooding,” “exploitation of phobias,” “stress positions,” “deprivation of light and auditory stimuli,” and other coercive methods forbidden from use by the Army Field Manual (see December 2, 2002). Rumsfeld does withhold his approval on the use of some methods such as waterboarding.
'Ashen-faced' - Morello tells Mora, “we tried to stop it,” but was told not to ask questions. A participant in the meeting recalls that Mora was “ashen-faced” when he read the package. According to Mora’s memo, Morello, “with a furtive air,” says: “Look at this. Don’t tell anyone where you got it.” Mora later says, “I was astounded that the secretary of defense would get within 100 miles of this issue.” (Morello will later deny showing Mora a copy of the memo.) Mora is similarly unimpressed by another document in the package, a legal analysis by Army lawyer Diane Beaver (see October 11, 2002), which he says will lead to the use of illegal torture by interrogators.
'Force Drift' - Naval Criminal Investigative Service (NCIS) psychologist Michael Gelles (see Early December, 2002) joins the meeting, and tells Mora that the Guantanamo interrogators are under intense pressure to achieve results. He tells Mora about the phenomenon of “force drift,” where interrogators using coercion begin to believe that if some force achieves results, then more force achieves better results. Mora determines to take action to bring the abuse to a close (see December 20, 2002). [New Yorker, 2/27/2006; Vanity Fair, 5/2008]

Entity Tags: Steven Morello, Naval Criminal Investigative Service, Alberto Mora, US Department of the Army, Donald Rumsfeld, Michael Gelles, Geoffrey D. Miller, US Department of Defense

Timeline Tags: Torture of US Captives, Civil Liberties

Alberto Mora, the Navy’s general counsel, has learned that possibly illegal interrogation techniques are being used against Guantanamo Bay detainees (see December 17-18, 2002). After getting the authorization of Gordon England, the secretary of the Navy, Mora meets with the Pentagon’s general counsel, William J. Haynes, in Haynes’s Pentagon office.
Meeting with Pentagon Counsel - In 2006, Mora will recall telling Haynes in the meeting that whatever its intent, Defense Secretary Donald Rumsfeld’s decision to allow extreme interrogation techniques (see December 2, 2002) is “torture.” Haynes replies, “No, it isn’t.” Mora asks Haynes to reconsider his opinions. For example, what does “deprivation of light and auditory stimuli” mean? Detention in a completely dark cell? For how long? Until he goes blind? And what does the phrase “exploitation of phobias” entail? Could it mean holding a detainee in a coffin? Threatening him with dogs, or rats? Can an interrogator drive a detainee insane? Mora notes that at the bottom of Rumsfeld’s memo, he asks why a detainee can be forced to stand for no longer than four hours a day when he himself often stands “for 8-10 hours a day.” While Rumsfeld may have intended to be humorous, Mora notes that Rumsfeld’s comment could be used as a defense argument in future terrorist trials. (In 2006, Lawrence Wilkerson will say of Rumsfeld’s comment: “It said, ‘Carte blanche, guys.’ That’s what started them down the slope. You’ll have My Lais then. Once you pull this thread, the whole fabric unravels.”) Mora leaves the office hoping that Haynes will come around to his point of view and convince Rumsfeld to withdraw the memo. He will be sharply disappointed (see July 7, 2004). [New Yorker, 2/27/2006] He later calls the interrogation practices “unlawful and unworthy of the military services.” [Savage, 2007, pp. 179]
Haynes Close to Cheney's Office - Mora may not be aware that in meeting with Haynes, he is also in effect engaging the office of Vice President Dick Cheney. Haynes is a protege of Cheney’s neoconservative chief of staff, David Addington. Haynes worked as Addington’s special assistant when Addington served under then-Defense Secretary Cheney in 1989, and Addington promoted Haynes to the office of general counsel of the Army. When George W. Bush took office in 2001, Haynes was awarded the position of the Pentagon’s general counsel. Addington has played key roles in almost all of the administration’s legal arguments in favor of extreme interrogation techniques and detainee policies. One former government lawyer will describe Addington as “the Octopus” because his hands seem to reach into every legal issue. Many of Haynes’s colleagues know that information moves rapidly between Haynes’s and Cheney’s offices. While not a hardline neoconservative like Addington and many other Cheney staffers, Haynes is, as one former Pentagon colleague will call him, “pliant” to serving the agenda of the vice president. [New Yorker, 2/27/2006]

Entity Tags: Alberto Mora, Gordon England, David S. Addington, William J. Haynes, Lawrence Wilkerson, Donald Rumsfeld, US Department of Defense, George W. Bush, Richard (“Dick”) Cheney

Timeline Tags: Torture of US Captives, Civil Liberties

Alberto Mora, the Navy’s general counsel, meets for a second time with Pentagon general counsel William J. Haynes, who he had tried unsuccessfully to convince to join him in opposing the use of extreme interrogation methods at Guantanamo (see December 20, 2002). Mora will write in a June 2004 memo (see July 7, 2004) that when he tells Haynes how disappointed he is that nothing has been done to stop abuse at Guantanamo, Haynes retorts that “US officials believed the techniques were necessary to obtain information,” and that the interrogations might prevent future attacks against the US and save American lives. Mora acknowledges that he can imagine any number of “ticking bomb” scenarios where it might be the proper, if not the legal, thing to torture suspects. But, he asks, how many lives must be saved to justify torture? Hundreds? Thousands? Where do we draw the line? Shouldn’t there be a public debate on the issue? Mora is doubtful that anyone at Guantanamo would be involved in such a scenario, since almost all of the Guantanamo detainees have been in custody for over a year. He also warns Haynes that the legal opinions the administration is using will probably not stand up in court. If that is the case, then US officials could face criminal charges. Secretary of Defense Donald Rumsfeld could find himself in court; the presidency itself could be damaged. “Protect your client!” he says. When Haynes relates Mora’s concerns to Rumsfeld, according to a former administration official, Rumsfeld responds with jokes about how gentle the interrogation techniques are. “Torture?” he asks rhetorically. “That’s not torture!” He himself stands for up to ten hours a day, he says, and prisoners are not allowed to stand for over four. The official will recall, “His attitude was, ‘What’s the big deal?’” Mora continues to push his arguments, but, as a former Pentagon colleague will recall: “people were beginning to roll their eyes. It was like, ‘Yeah, we’ve already heard this.’” [New Yorker, 2/27/2006]

Entity Tags: William J. Haynes, Alberto Mora, US Department of Defense, Donald Rumsfeld

Timeline Tags: Torture of US Captives, Civil Liberties

The Navy’s general counsel, Alberto Mora, is angered at the lack of response to his attempts to persuade the Pentagon to stop abusing prisoners at Guantanamo and is particularly frustrated with the Pentagon’s general counsel, William J. Haynes (see December 20, 2002 and January 9, 2003 and After). Mora decides to take a step that he knows will antagonize Haynes, who always warns subordinates never to put anything controversial in writing or in e-mail messages. Mora delivers an unsigned draft memo of his objections to Haynes, and tells him that he intends to “sign it out” that afternoon—thereby making it an official document—unless the harsh interrogation techniques at Guantanamo stop. Mora’s memo describes the interrogations at Guantanamo as “at a minimum cruel and unusual treatment, and, at worst, torture.”
'Working Group to Be Created - Haynes calls Mora later that day with good news: Defense Secretary Donald Rumsfeld is suspending his authorization of the disputed interrogation techniques (see December 2, 2002) and is appointing a “working group” of lawyers from all branches of the armed forces to develop new interrogation guidelines. Mora will be a part of that working group. An elated Mora begins working with the group of lawyers to discuss the constitutionality and effectiveness of various interrogation techniques. In 2006, he will say that he felt “no one would ever learn about the best thing I’d ever done in my life.”
Mora Outmaneuvered - But Haynes has outmaneuvered Mora. A week later, Mora sees a lengthy classified document that negates every argument he has made. Haynes has already solicited a second, overarching opinion from John Yoo, a lawyer at the Justice Department’s Office of Legal Counsel, that supersedes Mora’s working group (see January 9, 2002). Mora is astonished (see January 23-Late January, 2003). He will later learn that the working group’s report will be forced to comply with Yoo’s legal reasoning. In fact, the group’s final report is never completed—though the draft report, which follows Yoo’s memo, is signed by Rumsfeld without Mora’s knowledge. [New Yorker, 2/27/2006] Mora later says that while Yoo’s memo displays a “seeming sophistication,” it is “profoundly in error,” contradicting both domestic law and international treaties. Mora and the other “dissident” members of the working group are led to believe that the report has been abandoned. [Savage, 2007, pp. 181] He will learn about Rumsfeld’s signature on the draft report while watching C-SPAN in mid-2004. [New Yorker, 2/27/2006; Savage, 2007, pp. 189]

Entity Tags: US Department of Defense, US Department of Justice, Alberto Mora, John C. Yoo, Office of Legal Counsel (DOJ), Donald Rumsfeld, William J. Haynes

Timeline Tags: Torture of US Captives, Civil Liberties

The Navy’s general counsel, Alberto Mora, is shocked when he reads a legal opinion drafted by John Yoo, of the Justice Department’s Office of Legal Counsel, about techniques that can be used in prisoner interrogations (see January 9, 2002). Mora has been fighting the use of questionable techniques and was part of a working group that was reviewing them (see January 15-22, 2003). The opinion was sought by Pentagon general counsel William J. Haynes and not only counters every legal and moral argument Mora has brought to bear, but supersedes the working group. Only one copy of the opinion exists, kept in the office of the Air Force’s general counsel, Mary Walker, the head of the working group.
'Catastrophically Poor Legal Reasoning' - Mora reads it in Walker’s office with mounting horror. The opinion says nothing about prohibiting cruel, degrading, and inhuman treatment of detainees; in fact, it defends such tactics. While sophisticated, it displays “catastrophically poor legal reasoning,” he will later recall. Mora believes that it approaches the level of the notorious Supreme Court decision in Korematsu v. United States, the 1944 decision that upheld the government’s detention of innocent Japanese-Americans during World War II. Mora is not aware that Yoo, like Haynes, is a member of an informal but extremely powerful “inner circle” dominated by David Addington, the chief of staff for Vice President Cheney. In fact, Yoo and Haynes are regular racquetball partners. Like Addington and Cheney, Yoo believes in virtually unrestricted executive powers during a time of war. Yoo wrote that almost any interrogation methods used against terror suspects is legally permissible, an argument that shocks Mora.
Mora's Response - In his June 2004 memo on the subject (see July 7, 2004), Mora will write, “The memo espoused an extreme and virtually unlimited theory of the extent of the President’s Commander-in-Chief authority.” Yoo’s reasoning is “profoundly in error,” Mora concludes, and is “clearly at variance with applicable law.” In 2006, Mora will add, “If everything is permissible, and almost nothing is prohibited, it makes a mockery of the law.” He writes to Walker shortly thereafter, saying that not only is Yoo’s opinion “fundamentally in error” but “dangerous,” because it has the weight of law and can only be reversed by the Attorney General or the President. Walker writes back that she disagrees, and she believes Haynes does as well. Two weeks later, Mora will discuss the memo with Yoo (see February 6, 2003). [New Yorker, 2/27/2006]

Entity Tags: William J. Haynes, David S. Addington, Alberto Mora, John C. Yoo, Mary L. Walker, Office of Legal Counsel (DOJ), Richard (“Dick”) Cheney, US Department of Defense, US Department of Justice

Timeline Tags: Torture of US Captives, Civil Liberties

Alberto Mora, the Navy’s general counsel, invites Justice Department lawyer John Yoo to his office to discuss Yoo’s recent memo defending the legality of extreme interrogation techniques used against terror suspects (see January 9, 2002). Mora has been working to put an end to such tactics at the Pentagon, but was horrified when his supervisor, Pentagon general counsel William Haynes, outflanked him with the Yoo memo (see January 23-Late January, 2003). Mora wants to know if Yoo believes cruel, inhuman or degrading treatment can be allowed at Guantanamo, and if that the president’s authority to order torture is virtually unlimited. During the meeting with Yoo, Mora asks him, “Are you saying the President has the authority to order torture?” Yoo replies, “Yes.” “I don’t think so,” Mora retorts. “I’m not talking policy,” Yoo replies, “I’m just talking about the law.” Mora responds, “Well, where are we going to have the policy discussion, then?” Yoo has no idea. Perhaps it will take place within the Pentagon, where the defense-policy experts are. Mora knows that no such discussion will ever take place; the Bush administration will use Yoo’s memo to justify its support of torture. [New Yorker, 2/27/2006; Washington Post, 4/2/2008]

Entity Tags: William J. Haynes, John C. Yoo, Alberto Mora, Bush administration (43)

Timeline Tags: Torture of US Captives, Civil Liberties

President Bush issues a proclamation to mark the United Nations International Day in Support of Victims of Torture. Bush states that the US is “committed to the worldwide elimination of torture and we are leading this fight by example.” He vows to prosecute torture and to prevent any “other cruel and unusual punishment.” The CIA’s chief lawyer, Scott Muller, complains to the White House that Bush’s statement could cause CIA interrogators, authorized by Bush to torture suspected al-Qaeda members (see February 7, 2002), to fear that they could be used as scapegoats by the administration. White House officials reassure Muller that despite Bush’s words, the administration still supports the CIA’s torture of prisoners. [New York Times, 5/3/2009]

Entity Tags: Scott Muller, Bush administration (43), George W. Bush, Central Intelligence Agency

Timeline Tags: Torture of US Captives

Jack Goldsmith succeeds Jay Bybee as the head of the Justice Department’s Office of Legal Counsel (OLC). The OLC essentially performs two functions: advising the executive branch on the legal limits of presidential power, and crafts legal justifications for the actions of the president and the executive branch. Goldsmith, who along with fellow Justice Department counsel and law professor John Yoo, is seen as one of the department’s newest and brightest conservative stars. But instead of aiding the Bush administration in expanding the power of the executive branch, Goldsmith will spend nine tumultuous months battling the White House on issues such as the NSA’s warrantless wiretapping program, the administration’s advocacy of torture in the interrogation of terrorism suspects, and the extralegal detention and military tribunals of “enemy combatants.” Goldsmith will find himself at odds with Yoo, the author of two controversial OLC memos that grant the US government wide latitude in torturing terror suspects (see January 9, 2002 and August 1, 2002), with White House counsel and future attorney general Alberto Gonzales, and with the chief aide to Vice President Dick Cheney, David Addington, who along with Cheney is one of the strongest advocates of the so-called “unitary executive” theory of governance, which says the president has virtually unlimited powers, especially in the areas of national security and foreign policy, and is not always subject to Congressional or judicial oversight. Within hours of Goldsmith’s swearing-in, Goldsmith receives a phone call from Gonzales asking if the Fourth Geneva Convention, which protects civilians in war zones such as Iraq, covers terrorists and insurgents as well. Goldsmith, after intensive review with other lawyers in and out of the Justice Department, concludes that the conventions do indeed apply. Ashcroft concurs. The White House does not. Goldsmith’s deputy, Patrick Philbin, says to Goldsmith as they drive to the White House to meet with Gonzales and Addington, “They’re going to be really mad. They’re not going to understand our decision. They’ve never been told no.” Philbin’s prediction is accurate; Addington is, Goldsmith recalls, “livid.” The physically and intellectually imposing Addington thunders, “The president has already decided that terrorists do not receive Geneva Convention protections. You cannot question his decision.” Addington refuses to accept Goldsmith’s explanations. Months later, an unmollified Addington will tell Goldsmith in an argument about another presidential decision, “If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands.” These initial encounters set the tone for Goldsmith’s stormy tenure as head of the OLC. Goldsmith will lead a small group of administration lawyers in what New York Times Magazine reporter Jeffrey Rosen calls a “behind-the-scenes revolt against what [Goldsmith] considered the constitutional excesses of the legal policies embraced by his White House superiors in the war on terror,” Goldsmith will resign in June of 2004 (see June 17, 2004). [New York Times Magazine, 9/9/2007]

Entity Tags: Richard (“Dick”) Cheney, US Department of Justice, Office of Legal Counsel (DOJ), John C. Yoo, Jack Goldsmith, David S. Addington, Alberto R. Gonzales, National Security Agency, Jay S. Bybee, John Ashcroft, Jeffrey Rosen

Timeline Tags: Civil Liberties

Top: the seven detainees are forced to form a human pyramid. Charles Graner and Sabrina Harman stand behind them smiling and giving thumbs up signs. Bottom: Some of the same detainees are forced to simulate oral sex on each other. Top: the seven detainees are forced to form a human pyramid. Charles Graner and Sabrina Harman stand behind them smiling and giving thumbs up signs. Bottom: Some of the same detainees are forced to simulate oral sex on each other. [Source: Public domain]At Abu Ghraib, seven Iraqi detainees are brought to Cellblock 1A from one of the tent camps escorted by MPs. The seven Iraqis are suspected of having taken part in a fight. They include Nori al-Yasseri, Hussein Mohssein Mata al-Zayiadi, and four others known only by their first names: Haidar, Ahmed, Ahzem, Hashiem and Mustafa. [Washington Post, 5/21/2004; US Department of Defense, 8/23/2004 pdf file] They are repeatedly punched and attacked by Staff Sgt. Ivan L. Frederick, Spc. Charles Graner, and other MPs (see Evening November 7, 2003). The MPs then take out their cameras to take pictures of the seven naked men and begin putting them in humiliating poses, often placing themselves in the picture as well, smiling. Graner makes them climb on top of each other to form a human pyramid, as is reported by Spc. Sabrina Harman. [Washington Post, 5/22/2004; Rolling Stone, 7/28/2004] “They put us two on the bottom, two on top of them, and two on top of those and on top,” Al-Zayiadi will say. [Washington Post, 5/21/2004] “The pyramid lasted about 15 to 20 minutes,” according to Harman. [Washington Post, 5/22/2004] The prisoners are also made to crawl on hands and knees with MPs riding on their backs. [Rolling Stone, 7/28/2004] “They were sitting on our backs like riding animals,” Al-Zayiadi says. Meanwhile, others are taking photographs. [Washington Post, 5/21/2004] Frederick then takes hold of the prisoner whom he has singled out for additional punishment and motions him to masturbate. “I grabbed his arm by the elbow, put it on his genitals and moved it back and forth with an arm motion, and he did it.” [Los Angeles Times, 10/21/2004] He makes another detainee do the same. “I lifted his hood and gave him a hand gesture, telling him to keep doing it himself.” [New York Times, 10/21/2004] Spc. Matthew Wisdom, who complained to his team leader Sgt. Robert Jones earlier in the evening about the treatment of the detainees, returns to Tier 1A to find a naked detainee being forced to masturbate in front of another naked detainee on his knees before him. “I saw two naked detainees,” Wisdom will later recall, “one masturbating to another kneeling with its mouth open. I thought I should just get out of there. I didn’t think it was right.” [New Yorker, 5/10/2004] According to Wisdom, Frederick says to him: “Look what these animals do when we leave them alone for two seconds.” [New Yorker, 5/10/2004; Los Angeles Times, 8/5/2004] Meanwhile, Pfc. Lynndie England makes sexually suggestive comments “in a somewhat sarcastic, fun tone of voice,” according to Wisdom. [Los Angeles Times, 8/5/2004] “I heard Pfc. England shout out, ‘He’s getting hard.’” [New Yorker, 5/10/2004] Again Wisdom leaves the building to tell Sgt. Jones, who assures him the “problem [will] be addressed and dealt with,” [Los Angeles Times, 8/5/2004] and Wisdom assumes that the problem will be taken care of. [New Yorker, 5/10/2004] Others, meanwhile, are lined up and forced to masturbate. These facts are corroborated by photographs that show the MPs laughing as they look on. [Rolling Stone, 7/28/2004] Al-Zayiadi later identifies himself in one of these pictures. “They told my friend to masturbate and told me to masturbate also, while they were taking pictures,” he says. [Washington Post, 5/21/2004] In the end, Al-Zayiadi says they are tossed naked but still hooded into a cell. “They opened the water in the cell and told us to lay face down in the water and we stayed like that until the morning, in the water, naked, without clothes.” [Washington Post, 5/21/2004] One of the seven prisoners is likely Haydar Sabbar Abed who says he was originally arrested for not carrying his ID card. After being involved in a fight with an Iraqi prison employee in one of the tent camps, he is taken to the Hard Site. He later recalls: “They cut off our clothes and… told us to masturbate towards this female soldier. But we didn’t agree to do it, so they beat us.” He also says: “They made us act like dogs, putting leashes around our necks. They’d whistle and we’d have to bark like dogs. We thought they were going to kill us.” [BBC, 8/4/2004] The next day, Wisdom asks for and is granted a transfer to a job elsewhere in the prison. Although he and Sgt. Jones say they have been angered by the abuse, they do little more than mildly confront their colleagues with their objections. [Los Angeles Times, 8/5/2004] To the detainees, the experience has been harrowing. Al-Yasseri will later call it a “night which we felt like 1,000 nights.” “I was trying to kill myself,” says Al-Zayiadi, “but I didn’t have any way of doing it.” [Rolling Stone, 7/28/2004] Gen. George Fay will also describe these incidents in his report (see August 25, 2004), which he concludes was an the affair of MPs alone. He states that military intelligence “involvement in this abuse has not been alleged nor is it likely.” However, one of the pictures taken that night, depicting the “human pyramid,” is later used as a screen saver for a computer in the Hard Site. The screen saver is later seen by a female military intelligence interrogator, but she states, according to Gen. Fay, that she did not report the picture because she did not see it again. The same interrogator, Fay will report, had a “close personal relationship” with Staff Sgt. Frederick, [US Department of Defense, 8/23/2004 pdf file] one of the main instigators of the abuse that night.

Entity Tags: Javal Davis, Ivan L. Frederick II, Jeremy C. Sivits, Matthew Wisdom, Shannon K. Snider, Hussein Mohssein Mata Al-Zayiadi, Lynndie England, Nori al-Yasseri, Mustafa, Haydar Sabbar Abed, George R. Fay, Haidar, New Yorker, Hashiem, Ahmed, Charles Graner, Ahzem, Sabrina Harman, Robert Jones II

Timeline Tags: Torture of US Captives

Jack Goldsmith, the new head of the Justice Department’s Office of Legal Counsel (see October 6, 2003), finds himself embroiled in a huge, if secretive, controversy over Justice Department lawyer John Yoo’s torture memos (see January 9, 2002 and January 25, 2002). Yoo, who wrote the original memos over former OLC chief Jay Bybee’s signature, had placed the OLC in the position of asserting that torture can indeed be used against terror suspects. Goldsmith disagrees, feeling that Yoo’s definitions of torture are far too narrow and give far too much latitude to US interrogators. He also believes that Yoo’s assertions of near-unchecked presidential power to authorize torture—at the direct expense of Congressional and judicial oversight—has no legal basis. And, Goldsmith worries, the opinions could be interpreted as a clumsy, “tendentious” attempt to protect Bush officials from criminal charges. The conflict between Goldsmith and Yoo will cost the two men their friendship. “I was basically taking steps to fix the mistakes of a close friend, who I knew would be mad about it,” Goldsmith will recall in 2007. “We don’t talk anymore, and that’s one of the many sad things about my time in government.” Goldsmith decides to withdraw the follow-up March 2003 torture memo, and tells White House officials they cannot rely on it any longer. Actually doing so proves a tricky business. [New York Times Magazine, 9/9/2007]
'Serious, Serious Problems' - Goldsmith will say in September 2007: “As soon as I absorbed the opinions I realized… that my reaction to them was a big problem. The Office of Legal Counsel rarely overturns its prior opinions, and even more rarely does so within an administration, and even more rarely than that, in the same administration about something this important. I didn’t find any precedent for it. And I did not want to do anything to affect either the programs or the underlying opinions. But they were serious, serious problems, and I knew if and when I was asked to stand by them that I would have a very hard time doing so.” [Newsweek, 9/8/2007]
Pressure from Abu Ghraib Scandal - The legal and bureaucratic niceties of withdrawing the memos become moot when, in April 2004, the Abu Ghraib scandal breaks (see Mid-April 2004), and when in June 2004, the first memo is leaked to the media. “After the leak, there was a lot of pressure on me within the administration to stand by the opinion,” he later says, “and the problem was that I had decided six months earlier that I couldn’t stand by the opinion.” [New York Times Magazine, 9/9/2007] “I had determined that the analysis was flawed,” he will recall. “But I hadn’t determined the underlying techniques were illegal. After Abu Ghraib, there was enormous pressure for me to stand by the decisions… and I couldn’t do so. I had already made up my mind many months earlier and I wasn’t about to change it. But I struggled for several days with what the consequences might be of withdrawing the opinion, because I wasn’t in the position to make an independent ruling on the other techniques. I certainly didn’t think they were unlawful, but I couldn’t get an opinion that they were lawful either. So I struggled to repudiate the flawed opinion while not causing massive disruption and fright throughout the counterterrorism world related to interrogation. And I ultimately decided that I had to withdraw those and under suspicions, stand by it, because it was so thoroughly flawed.” [Newsweek, 9/8/2007]
White House Resists Change - Though Goldsmith has the support of his boss, Attorney General John Ashcroft, Ashcroft’s deputy, James Comey, and his own deputy, Patrick Philbin, he knows the White House will fight the withdrawal. Goldsmith will decide to issue the withdrawal and then resign his position (see June 17, 2004), effectively forcing the administration to either quietly accept the withdrawal, or fight it and make his resignation a media circus. “If the story had come out that the US government decided to stick by the controversial opinions that led the head of the Office of Legal Counsel to resign, that would have looked bad,” he later recalls. “The timing was designed to ensure that the decision stuck.” Vice President Dick Cheney’s chief aide, David Addington, among other White House officials, is furious over the withdrawal of the torture opinion (interestingly, White House counsel and future attorney general Alberto Gonzales will modify his own opposition to the withdrawals later, telling Goldsmith in 2007, “I guess those opinions really were as bad as you said”). [New York Times Magazine, 9/9/2007]
Expansion of Presidential Power - Addington asks Goldsmith incredulously, “Why are you trying to give away the president’s power?” Like Cheney, Addington believes, in Goldsmith’s words, “that the very act of asking for Congress’s help would imply, contrary to the White House line, that the president needed legislative approval and could not act on his own. The president’s power would diminish, Addington thought, if Congress declined its support once asked, especially if it tried to restrict presidential power in some way. Congress had balked, during the month after 9/11, at giving the president everything he had asked for in the Congressional authorization to use force and the Patriot Act. Things would only be worse in 2004 and beyond, Addington believed.” Addington’s two questions are always, Goldsmith writes, “‘Do we have the legal power to do it ourselves?’ (meaning on the president’s sole authority), and ‘Might Congress limit our options in ways that jeopardize American lives?’” While Goldsmith and his colleagues agree that the president has the power, and that seeking Congressional approval might tie the White House’s hands more so than the administration is willing to accept, Goldsmith worries that an unfavorable Supreme Court decision would undercut Bush’s authority much more so than any restrictions passed by a compliant, Republican-led Congress. Addington sees things in very simple terms: ”“We’re going to push and push and push until some larger force makes us stop,” Addington says on several occasions. Addington tells Goldsmith, “Now that you’ve withdrawn legal opinions that the president of the United States has been relying on, I need you to go through all of [the OLC terror memos] and let me know which ones you still stand by.” Goldsmith will do just that, further angering Addington. [Savage, 2007, pp. 184; Slate, 9/11/2007]
Absolute Power Required to Defend Nation - Goldsmith later writes: “He and, I presumed, his boss viewed power as the absence of constraint. These men believed that the president would be best equipped to identify and defeat the uncertain, shifting, and lethal new enemy by eliminating all hurdles to the exercise of his power. They had no sense of trading constraint for power. It seemed never to occur to them that it might be possible to increase the president’s strength and effectiveness by accepting small limits on his prerogatives in order to secure more significant support from Congress, the courts, or allies. They believed cooperation and compromise signaled weakness and emboldened the enemies of America and the executive branch. When it came to terrorism, they viewed every encounter outside the innermost core of most trusted advisers as a zero-sum game that if they didn’t win they would necessarily lose.” [Slate, 9/11/2007]

Entity Tags: John Ashcroft, John C. Yoo, Jay S. Bybee, Office of Legal Counsel (DOJ), James B. Comey Jr., David S. Addington, Patrick F. Philbin, Alberto R. Gonzales, Bush administration (43), Daniel Levin, Jack Goldsmith, US Department of Justice

Timeline Tags: Civil Liberties

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

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

Timeline Tags: Civil Liberties

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

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

Timeline Tags: Civil Liberties

Chuck Rosenberg.Chuck Rosenberg. [Source: Associated Press / Charles Dharapak]Vice President Dick Cheney challenges objections to the White House’s secret, warrantless surveillance program (see Early 2002) by Justice Department officials. Cheney makes his objections during a meeting attended by high-level White House and Justice Department officials, but this does not come to light until a 2007 testimony by Deputy Attorney General James Comey (see May 15, 2007). [Washington Post, 6/7/2007] (Comey will step down from his post in mid-2005.) [Law.com, 4/21/2005] The White House meetings take place one day before White House officials journey to Attorney General John Ashcroft’s hospital room to try to force Ashcroft to give his approval for the NSA-managed surveillance program (see March 10-12, 2004). Ashcroft will refuse to give his approval. Cheney’s key role in leading what the Washington Post calls “a fierce internal battle over the legality of the warrantless surveillance program” is not known until Comey’s 2007 testimony. The White House meeting, held to discuss Justice Department objections to the NSA program, is attended by Cheney, White House counsel and future attorney general Alberto Gonzales, Cheney’s chief counsel David Addington, and others. Comey will testify that at the time, eight Justice Department officials are prepared to resign if the White House doesn’t back down on forcing the department to sign off on the program. Those officials include FBI director Robert Mueller, US attorney Chuck Rosenberg of the northern Virginia district, and Office of Legal Counsel head Jack Goldsmith. [Washington Post, 6/7/2007]

Entity Tags: Washington Post, US Department of Justice, Robert S. Mueller III, John Ashcroft, Alberto R. Gonzales, Chuck Rosenberg, David S. Addington, Richard (“Dick”) Cheney, James B. Comey Jr., Jack Goldsmith

Timeline Tags: Civil Liberties

Attorney General John Ashcroft is visited by a squad of top White House and Justice Department officials just hours after Ashcroft underwent emergency surgery for severe, acute pancreatis, and is still recuperating in intensive care. The White House officials attempt to persuade the barely lucid Ashcroft to give his formal approval for the secret National Security Agency warrantless wiretapping surveillance program (see Early 2002), which requires the Justice Department to periodically review and approve it. [National Public Radio, 5/15/2007; Washington Post, 5/16/2007; Washington Post, 6/7/2007; Associated Press, 6/7/2007]
Comey, Goldsmith Rush to Head Off Aides - Deputy Attorney General James Comey testifies to the incident before the Senate Judiciary Committee over three years later (see May 15, 2007). Comey will recall that he and Ashcroft had decided not to recertify the surveillance program due to their concerns over its legality and its lack of oversight. On March 9, Ashcroft was rushed to the hospital with severe pancreatis. As per Justice Department procedures, Comey became acting attorney general for the duration of Ashcroft’s incapacity. The next night, just hours after Ashcroft underwent emergency surgery for the removal of his gallbladder, Comey receives an urgent phone call from Ashcroft’s aide, David Ayres, who himself has just spoken with Ashcroft’s wife Janet. Ayres tells Comey that White House counsel Alberto Gonzales and White House chief of staff Andrew Card are en route to Ashcroft’s hospital room to pressure Ashcroft to sign off on the program recertification. A furious Comey telephones FBI director Robert Mueller, and the two, accompanied by aides, race separately through the Washington, DC streets with sirens wailing to reach Ashcroft’s hospital room; they beat Gonzales and Card to the room by a matter of minutes. “I was concerned that, given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to do that,” Comey will testify, and will add that to him, Ashcroft appears “pretty bad off.” En route, Mueller instructs the security detail protecting Ashcroft not to allow Card or Gonzales to eject Comey from the hospital room. Card and Gonzales enter just minutes later. [Washington Post, 5/16/2007; PBS, 5/16/2007] “And it was only a matter of minutes that the door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card,” Comey will testify. “They came over and stood by the bed, greeted the attorney general very briefly, and then Mr. Gonzales began to discuss why they were there—to seek his approval for a matter.” [National Public Radio, 5/15/2007] Gonzales is holding an envelope containing an executive order from Bush. He tells Ashcroft that he needs to sign off on the order, thereby giving the wiretapping program Justice Department authorization to continue unabated. Comey will testify that Ashcroft “lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me. [Ashcroft then adds] ‘But that doesn’t matter, because I’m not the attorney general. There is the attorney general,’” pointing at Comey. Gonzales and Card leave the room without ever acknowledging Comey’s presence. “I was angry,” Comey will recall. “I thought I just witnessed an effort to take advantage of a very sick man, who did not have the powers of the attorney general because they had been transferred to me.” [Washington Post, 5/16/2007; Washington Post, 6/7/2007] “That night was probably the most difficult night of my professional life, so it’s not something I forget,” Comey will testify. [PBS, 5/16/2007] Goldsmith is also in the room; like Comey, Goldsmith receives a phone call alerting him to Gonzales’s and Card’s visit, and like Comey, Goldsmith races through the Washington streets to arrive at Ashcroft’s room minutes before Gonzales and Card arrive. He, too, is astonished at the brazen, callous approach taken by the two White House officials against Ashcroft, who he describes as laying in his darkened hospital room, with a bright light shining on him and tubes and wires protruding from his body. “Ashcroft, who looked like he was near death, sort of puffed up his chest,” Goldsmith later recalls. “All of a sudden, energy and color came into his face, and he said that he didn’t appreciate them coming to visit him under those circumstances, that he had concerns about the matter they were asking about and that, in any event, he wasn’t the attorney general at the moment; Jim Comey was. He actually gave a two-minute speech, and I was sure at the end of it he was going to die. It was the most amazing scene I’ve ever witnessed.” As Gonzales and Card leave the room, Goldsmith will recall, “Mrs. Ashcroft, who obviously couldn’t believe what she saw happening to her sick husband, looked at Gonzales and Card as they walked out of the room and stuck her tongue out at them. She had no idea what we were discussing, but this sweet-looking woman sticking out her tongue was the ultimate expression of disapproval. It captured the feeling in the room perfectly.” [New York Times Magazine, 9/9/2007] After Gonzales and Card leave the room, Comey asks Mueller to instruct the security detail not to let any more visitors into the room, except for family, without Mueller’s approval, apparently in order to keep Gonzales and Card from attempting to return. [US Department of Justice, 8/14/2007]
Cheney or Bush Behind Visit? - The hospital visit is sparked by at least two events: a meeting of White House officials a day earlier, where Vice President Dick Cheney attempted to push reluctant Justice Department officials to approve the surveillance program (see March 9, 2004), and Comey’s own refusal to certify the legality of the surveillance, as noted above. [Washington Post, 6/7/2007] Some believe that the timing of the incident shows that Cheney is the one who ordered Gonzales and Card to go to Ashcroft’s hospital room; Comey personally informed Cheney of his decision not to give his approval to the program. Speculation about Cheney’s ordering of the visit cannot be confirmed, [National Journal, 7/7/2007; National Journal, 8/16/2007] though the New York Times states flatly in an op-ed that “Vice President Dick Cheney sent Mr. Gonzales and [Card] to Mr. Ashcroft’s hospital room to get him to approve the wiretapping.” [New York Times, 7/29/2007] Three years later, Goldsmith will tell Congress that he believes Bush himself authorized the visit (see October 2, 2007).
Meeting in the White House - Minutes after the incident in Ashcroft’s hospital room, Card orders Comey to appear at a late-night meeting at the White House; Comey refuses to go alone, and pulls Solicitor General Theodore Olson from a dinner party to act as a witness to the meeting. “Mr. Card was very upset and demanded that I come to the White House immediately. After the conduct I had just witnessed, I would not meet with him without a witness present,” Comey will testify. “[Card] replied, ‘What conduct? We were just there to wish him well.’ And I said again, ‘After what I just witnessed, I will not meet with you without a witness. And I intend that witness to be the solicitor general of the United States.’” On March 11, after an al-Qaeda bombing in Madrid kills over 200 people (see 7:37-7:42 a.m., March 11, 2004, Bush recertifies the program without the approval of the Justice Department. Comey responds by drafting a letter of resignation, effective March 12. “I couldn’t stay if the administration was going to engage in conduct that the Department of Justice had said had no legal basis,” he will testify. “I just simply couldn’t stay.” Comey is not the only one threatening to resign; he is joined by Ashcroft, Mueller, Ayres, Goldsmith, Justice Department official Patrick Philbin, and others, who all intend to resign en masse if Bush signs off on the surveillance program without Justice Department support. But Ayres persuades Comey to delay his resignation; in Comey’s words, Ayres “asked me something that meant a great deal to him, and that is that I not resign until Mr. Ashcroft was well enough to resign with me.” Instead of resigning on March 12, Bush meets separately with Comey and Mueller, and promises to make changes in the program (see March 12-Mid-2004). Those changes have never been disclosed, though some changes are later found to be the creation of a secret review court to oversee the surveillance court, and the clarification of what exactly constitutes “probable cause” for surveillance. Comey will testify,…“Director Mueller came to me and said that, ‘The president told me that the Department of Justice should get this where it wants to be—to do what the department thinks is right.’ And I took that mandate and set about to do that, and I accomplished that.” [Newsweek, 1/9/2006; National Public Radio, 5/15/2007; New York Times, 5/15/2007; Washington Post, 5/16/2007; PBS, 5/16/2007; Associated Press, 6/7/2007] Goldsmith recalls his surprise when Congress later approves the program and brings it somewhat under the supervision of the FISA court. “I was sure the government was going to melt down,” Goldsmith says in 2007. “No one anticipated they were going to reverse themselves.” [New York Times Magazine, 9/9/2007]
Did Gonzales Break the Law? - It is also possible that Gonzales and Card may have broken the law in discussing classified information in a public venue. “Executive branch rules require sensitive classified information to be discussed in specialized facilities that are designed to guard against the possibility that officials are being targeted for surveillance outside of the workplace,” says law professor Neal Katyal, a national security adviser under Bill Clinton. “The hospital room of a cabinet official is exactly the type of target ripe for surveillance by a foreign power. And the NSA program is particularly sensitive. One government official familiar with the program notes, “Since it’s that program, it may involve cryptographic information,” some of the most highly protected information in the intelligence community. The law governing disclosure of classified information is quite strict, and numerous government and military officials have been investigated for potential violations in the past. “It’s the one you worry about,” says the government official. Katyal says that if Gonzales did indeed break the law, the Justice Department cannot run any investigation into the matter: “The fact that you have a potential case against the Attorney General himself calls for the most scrupulous and independent of investigations.” Many others are dismayed and confused by the contradictions between the absolute secrecy surrounding the program, and Gonzales’s and Card’s willingness to openly discuss it in such an insecure location, and in front of witnesses not cleared to hear details about the program—including Ashcroft’s wife, who is present in the room while the officials seek her husband’s signature. Former NSA general counsel Elizabeth Parker says not enough is known about the meeting to be sure whether or not the law was broken. “Obviously things can be discussed in ways that don’t divulge highly classified information,” she says. “The real issue is what is it about this program that is so classified that can’t allow it to be discussed in a Congressional setting, even a closed Congressional hearing. In order to have confidence in what this program is all about, one needs to understand better what the approach is and how it affects the rights of American citizens.”
'Horrible' Judgment - John Martin, who oversaw Justice’s counterintelligence division for 26 years, calls Gonzales’s and Card’s attempt to override Comey’s authority as acting attorney general as more than just “bad judgment.” Martin calls their judgement “horrible…they both knew or should have known that the Attorney General while he was so incapacitated had delegated his power to his deputy Jim Comey. Comey’s actions were heroic under the circumstances.” [Time, 5/17/2007]
Snow Dismisses Concerns - In May 2007, after Comey’s testimony to the Senate hits the media, White House press secretary Tony Snow dismisses any concerns about the inappropriateness of Gonzales’s and Card’s pressuring of Ashcroft in his hospital room, and skips over the fact that Comey, not Ashcroft, had the final authority of the Attorney General at the time. “Because he had an appendectomy, his brain didn’t work?” Snow will say of Ashcroft. “Jim Comey can talk about whatever reservations he may have had. But the fact is that there were strong protections in there, this program has saved lives and it’s vital for national security and furthermore has been reformed in a bipartisan way.” Judiciary Committee member Charles Schumer (D-NY) has a different take on the incident: “What happened in that hospital room crystallized Mr. Gonzales’ view about the rule of law: that he holds it in minimum low regard.” [Associated Press, 6/7/2007] Senate Democrats are preparing to introduce a resolution of no-confidence against Gonzales. [Time, 5/17/2007]

Entity Tags: National Security Agency, George W. Bush, Jack Goldsmith, James B. Comey Jr., John Ashcroft, Elizabeth Parker, Janet Ashcroft, Richard (“Dick”) Cheney, John Martin, David Ayres, Alberto R. Gonzales, Andrew Card, US Department of Justice, Charles Schumer, Theodore (“Ted”) Olson, Tony Snow, Robert S. Mueller III, Senate Judiciary Committee, Patrick F. Philbin, Neal Katyal

Timeline Tags: Civil Liberties

After senior Justice Department officials object to the possible illegality of the National Security Agency’s secret domestic surveillance program, and refuse to sign off on its continued use, the program is suspended for several months while Justice Department officials conduct a secret audit of the program. Attorney General John Ashcroft will recertify the program at the end of the month (see Late March, 2004). The suspension is prompted by acting Attorney General James Comey’s refusal to approve the program when it comes up for its regular 45-day review, and a subsequent late-night hospital visit by White House officials Andrew Card and Alberto Gonzales to the hospital room of Attorney General John Ashcroft, where they unsuccessfully attempt to pressure Ashcroft, recuperating from surgery, to overrule Comey and approve the program (see March 10-12, 2004). Bush himself has personally reauthorized the program over 30 times since its inception after the 9/11 attacks (see Early 2002), and reauthorizes it himself after Comey and Ashcroft refuse to give it their approval. This reauthorization prompts a threat of mass resignations by Justice Department officials unless the program is brought under increased oversight. Bush will allow the Justice Department to recommend changes to the program, though those changes have never been made public. The Justice Department audits a selection of cases to see how the NSA is running the program, scrutinizing how NSA officials determine that they have probable cause to wiretap US citizens’ phones and e-mail accounts. The results of that audit have not been made public. When the program was first authorized by Bush’s executive order in early 2002, it was so secret that then-Deputy Attorney General Larry Thompson, who was active in most of the government’s most highly classified counterterrorism operations, was not given access to the program. That decision, among other elements of the program, led many Justice Department officials to worry that the program was operating outside of the Constitution and without proper oversight. Comey, Thompson’s successor, was eventually given authorization to take part in the program and to review intelligence data produced by it. Justice Department officials say that Comey takes part in overseeing the reforms that are put into place during the current audit. However, those reforms do not restrict the NSA’s authority to independently choose its eavesdropping targets, and NSA shift supervisors have the authority to decide for themselves whether there is enough evidence against a US citizen to warrant a secret wiretap. No one at the Justice Department or in the White House needs to be consulted before a wiretap is put into place. [New York Times, 12/31/2005]

Entity Tags: US Department of Justice, National Security Agency, Larry D. Thompson, Associated Press, James B. Comey Jr., John Ashcroft, Alberto R. Gonzales, George W. Bush, Andrew Card

Timeline Tags: Civil Liberties

Attorney General John Ashcroft recertifies the NSA’s warrantless wiretapping program as being within the law, three weeks after he and his deputy, James Comey, refused to certify it. The program had come under question in early 2004, when Jack Goldsmith, the head of the Justice Department’s Office of Legal Counsel, wrote to Ashcroft and Comey expressing his doubts about the program’s legality (see September 9, 2007). For those three weeks, the program operated without Justice Department approval; President Bush personally recertified it himself, though it was suspended and subjected to an internal review (see March 12-Mid-2004). Ashcroft had previously refused to recertify the program while recuperating from surgery, despite pressure from White House officials Alberto Gonzales and Andrew Card (see March 10-12, 2004). Ashcroft, Comey, Goldsmith, and other Justice Department officials had even threatened to resign en masse if Bush recertified the program without their department’s support; Bush promised to revamp the program to address Ashcroft and Comey’s objections to the program, though what those changes are remains unclear. [Boston Globe, 5/16/2007; Associated Press, 6/7/2007]

Entity Tags: Andrew Card, Alberto R. Gonzales, George W. Bush, Jack Goldsmith, National Security Agency, James B. Comey Jr., US Department of Justice, John Ashcroft

Timeline Tags: Civil Liberties

Lt. Col. Tucker Mansager tells reporters that the media will not be permitted access to secret detention facilities in Afghanistan, claiming that to do so would violate the prisoners’ rights under the Geneva Conventions. However in February 2002, the administration had denied “prisoner of war” status to all Taliban and al-Qaeda fighters captured in Afghanistan (see February 7, 2002) on grounds they were “illegal combatants.” Since then, the US has maintained that these prisoners are not protected by the Conventions. Nonetheless, Mansager explains: “Part of… spirit [of the Geneva Conventions] is to ensure that the persons under confinement are not subject to any kind of exploitation. It is the coalition’s position that allowing media into the facilities would compromise that protection.” [Reuters, 5/19/2004]

Entity Tags: Tucker Mansager

Timeline Tags: Torture of US Captives

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

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

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

To demonstrate that President Bush has never authorized torture against prisoners, the White House declassifies and releases a large number of internal documents, including the February 7, 2002 memo (see February 7, 2002) signed by Bush, and documents, inter alia from Gen. James T. Hill, showing that the US military interrogators were seeking more aggressive interrogation techniques. The disclosures are made, according to Alberto R. Gonzales, because the government “felt that it was harmful to this country, in terms of the notion that perhaps we may be engaging in torture.” [Washington Post, 6/23/2004]

Entity Tags: George W. Bush, Bush administration (43), Alberto R. Gonzales, James T. Hill

Timeline Tags: Torture of US Captives

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

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

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

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

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

Deputy Defense Secretary Gordon England, who for a year has advocated that the US issue clear rules about detention and interrogation of terror suspects (see Summer 2005), calls a meeting of three dozen Pentagon officials, including the vice chief and top uniformed lawyer for each military branch. England wants to discuss a proposed new directive defining the US military’s detention policies. The secretaries of the Army, Navy, and Air Force are present, as are generals from each branch of service and a number of military lawyers, including Naval General Counsel Alberto Mora. The agenda is set by Matthew Waxman, the deputy assistant secretary for detainee affairs. Waxman says that the president’s general statement that detainees should be treated humanely “subject to military necessity” (see February 7, 2002) has left US military interrogators and others unsure about how to proceed with detainees. Waxman has proposed making it official Pentagon policy to treat detainees in accordance with Common Article III of the Geneva Conventions, which bars cruel, inhuman, and degrading treatment, as well as “outrages against human dignity.” The standard has already been in effect since the Geneva Conventions were first put into place over 50 years ago, and US military personnel are trained to follow it. In 2007, the Washington Post will observe, “That was exactly the language… that [Vice President] Cheney had spent three years expunging from US policy.” Mora will later recall of the meeting, “Every vice chief came out strongly in favor, as did every JAG,” or Judge Advocate General.
Opposition - Every military officer supports the Waxman standard, but two civilians oppose it: Stephen Cambone, the undersecretary of defense for intelligence, and William Haynes, the Pentagon’s general counsel and a close associate of Cheney’s chief counsel, David Addington. Cambone and Haynes argue that the standard will limit the US’s “flexibility” in handling terror suspects, and it might expose administration officials to charges of war crimes. If Common Article III becomes the standard for treatment, then it might become a crime to violate it.
War Crimes Questions - An exasperated Mora points out that whether the proposal is adopted or not, the Geneva Conventions are already solidly part of both US and international law. Any serious breach is in legal fact a war crime. Mora reads from a copy of the US War Crimes Act, which already forbids the violation of Common Article III. It is already the law, Mora emphasizes, and no one is free to ignore it. Waxman believes his opponents are isolated, and issues a draft of DOD Directive 2310, incorporating the Geneva-based language.
Browbeating Waxman - Within a few days, Addington and Lewis “Scooter” Libby, Cheney’s chief of staff, bring Waxman in for a meeting. The meeting goes poorly for Waxman. Addington ridicules the vagueness of the Geneva ban on “outrages upon personal dignity,” saying it leaves US troops timid in the face of unpredictable legal risk. Waxman replies that the White House policy is far more opaque, and Addington accuses him of trying to replace the president’s decision with his own. Mora later says, “The impact of that meeting is that Directive 2310 died.” Shortly thereafter, Waxman will leave the Pentagon for a post at the State Department. [New Yorker, 2/27/2006; Washington Post, 6/25/2007]

Entity Tags: Alberto Mora, David S. Addington, Lewis (“Scooter”) Libby, William J. Haynes, War Crimes Act, Matthew Waxman, Gordon England, Richard (“Dick”) Cheney, US Department of Defense, Geneva Conventions, Stephen A. Cambone

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

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

Douglas Feith.Douglas Feith. [Source: Whodidit.org]Law professor Phillippe Sands interviews Douglas Feith, the former undersecretary of defense for policy and one of the key architects of the Iraq invasion. [Vanity Fair, 5/2008] Feith is joining the School of Foreign Service at Georgetown University as a lecturer. [Washington Post, 5/25/2006] Feith discusses his great pride in his part in the administration’s decision to ignore the Geneva Conventions’ restrictions on interrogating prisoners (see February 7, 2002). Feith says that Geneva merely got in the way of the US doing what it needed to do with regards to the detainees. Since al-Qaeda and Taliban operatives did not function under Geneva, he argues, the US did not need to, either. Feith says that between his arguments and the contempt the civilians in the White House and the Pentagon held for the military officers who stood by the Geneva restrictions, the decision was made to set Geneva aside when circumstances warranted. It was never a matter of questioning Geneva’s status as international law, but deciding to whom and in what circumstances the conventions apply.
Catch 22 - Sands writes that according to Feith’s (and eventually the administration’s) rationale: “Geneva did apply to the Taliban, but by Geneva’s own terms Taliban fighters weren’t entitled to POW status, because they hadn’t worn uniforms or insignia. That would still leave the safety net provided by the rules reflected in Common Article 3—but detainees could not rely on this either, on the theory that its provisions applied only to ‘armed conflict not of an international character,’ which the administration interpreted to mean civil war. This was new. In reaching this conclusion, the Bush administration simply abandoned all legal and customary precedent that regards Common Article 3 as a minimal bill of rights for everyone.… I asked Feith, just to be clear: Didn’t the administration’s approach mean that Geneva’s constraints on interrogation couldn’t be invoked by anyone at Guantanamo? ‘Oh yes, sure,’ he shot back. Was that the intended result?, I asked. ‘Absolutely.… That’s the point.‘… As he saw it, either you were a detainee to whom Geneva didn’t apply or you were a detainee to whom Geneva applied but whose rights you couldn’t invoke.”
Impact on Interrogations - When asked about the difference for the purpose of interrogation, Sands will write: “Feith answered with a certain satisfaction, ‘It turns out, none. But that’s the point.’ That indeed was the point. The principled legal arguments were a fig leaf. The real reason for the Geneva decision, as Feith now made explicit, was the desire to interrogate these detainees with as few constraints as possible.” Reflecting on that time, Feith says with obvious relish, “This year I was really a player.” Sands asks Feith if he ever worried that the Geneva decision might have eroded the US’s moral authority. Feith’s response is blunt: “The problem with moral authority [is] people who should know better, like yourself, siding with the _ssholes, to put it crudely.” [Vanity Fair, 5/2008]

Entity Tags: Phillippe Sands, Geneva Conventions, Douglas Feith, Al-Qaeda, Georgetown University, Taliban

Timeline Tags: Torture of US Captives, 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

The Navy’s former general counsel, Alberto Mora, now the general counsel for Wal-Mart’s international operations, ends a long, self-imposed silence about his opposition to the military’s advocacy of torture and abuse of terror suspects (see July 7, 2004). Mora tells New Yorker reporter Jane Mayer that the administration’s legal response to the 9/11 attacks was flawed from the outset, triggering a series of subsequent errors and misjudgments that were virtually impossible to correct. In particular, the determination to ignore the Geneva Conventions “was a legal and policy mistake,” but “very few lawyers could argue to the contrary once the decision had been made.” Mora continues, “It seemed odd to me that the actors weren’t more troubled by what they were doing.” Many administration lawyers seemed to be ignorant of history. “I wondered if they were even familiar with the Nuremberg trials—or with the laws of war, or with the Geneva Conventions. They cut many of the experts on those areas out. The State Department [whose lawyers and officials often opposed the use of abusive interrogation tactics] wasn’t just on the back of the bus—it was left off the bus.… [P]eople were afraid that more 9/11s would happen, so getting the information became the overriding objective. But there was a failure to look more broadly at the ramifications. These were enormously hardworking, patriotic individuals. When you put together the pieces, it’s all so sad. To preserve flexibility, they were willing to throw away our values.” [New Yorker, 2/27/2006]

Entity Tags: Geneva Conventions, US Department of State, Alberto Mora, Jane Mayer

Timeline Tags: Torture of US Captives, 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

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

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

Timeline Tags: Civil Liberties

Daniel Dell’Orto.Daniel Dell’Orto. [Source: US Department of Defense]Shortly after the Supreme Court rules that the Geneva Conventions apply to detainees suspected of terrorist affiliations (see June 30, 2006), the Bush administration publicly agrees to apply the Conventions to all terrorism suspects in US custody, and the Pentagon announces that it is now requiring all military officials to adhere to the Conventions in dealing with al-Qaeda detainees. The administration says that from now on, all prisoners in US custody will be treated humanely in accordance with the Conventions, a stipulation that would preclude torture and “harsh interrogation methods.” Until the ruling, the administration has held that prisoners suspected of terrorist affiliations did not have the right to be granted Geneva protections (see February 7, 2002). Lawyer David Remes, who represents 17 Guantanamo detainees, says, “At a symbolic level, it is a huge moral triumph that the administration has acknowledged that it must, under the Supreme Court ruling, adhere to the Geneva Conventions. The legal architecture of the war on terror was built on a foundation of unlimited and unaccountable presidential power, including the power to decide unilaterally whether, when and to whom to apply the Geneva Conventions.” But in the wake of the ruling the administration is pressuring Congress to introduce legislation that would strip detainees of some of the rights afforded them under the Conventions, including the right to free and open trials, even in a military setting. “The court-martial procedures are wholly inappropriate for the current circumstances and would be infeasible for the trial of these alien enemy combatants,” says Steven Bradbury, the acting chief of the Justice Department’s Office of Legal Counsel. Bradbury and Daniel Dell’Orto, the Defense Department’s principal deputy attorney general, have repeatedly urged lawmakers to limit the rights of detainees captured in what the administration terms its war on terrorism. Dell’Orto says Congress should not require that enemy combatants be provided lawyers to challenge their imprisonment. Congressional Democrats have a different view. Senate Judiciary Chairman Patrick Leahy (D-VT) says, “I find it hard to fathom that this administration is so incompetent that it needs kangaroo-court procedures to convince a tribunal of United States military officers that the ‘worst of the worst’ imprisoned at Guantanamo Bay should be held accountable” for crimes. “We need to know why we’re being asked to deviate from rules for courts-martial.” [Washington Post, 7/12/2006]

Entity Tags: US Department of Justice, US Supreme Court, US Department of Defense, Patrick J. Leahy, Al-Qaeda, Daniel J. Dell’Orto, David Remes, Geneva Conventions, Office of Legal Counsel (DOJ), Steven Bradbury

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

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

Entity Tags: Military Commissions Act, John C. Yoo

Timeline Tags: Civil Liberties

Attorney General Alberto Gonzales stuns Senate Judiciary Committee questioners when he says that the fundamental right of habeas corpus, the right for an accused person to go to court and challenge his or her imprisonment, is not protected by the Constitution. Gonzales, in response to questions by Arlen Specter (R-PA), says: “The Constitution doesn’t say every individual in the United States or every citizen is hereby granted or assured the right of habeas.… There is no express grant of habeas in the Constitution. There’s a prohibition against taking it away.” Specter is incredulous, asking how the Constitution could bar the suspension of a right that didn’t exist—a right, he notes, that was first recognized in medieval England as protection against the king’s power to send subjects to royal dungeons. Gonzales does say that habeas corpus is “one of our most cherished rights,” and admits that Congress has protected that right. But Gonzales refuses to acknowledge that the Constitution itself protects the right. If the Constitution does not, then Congress would be able to limit or nullify habeas corpus rights if it so chooses. Congress has not passed such an all-encompassing law yet, but it has passed a law, the Military Commissions Act, that strips the courts of any authority to hear habeas corpus suits filed by “enemy combatants.”
Experts Fear Government Encroachment on Civil Liberties - But constitutional experts on both the left and the right say that Gonzales’s position implies a far broader power. Erwin Chemerinsky, a law professor who has frequently criticized the Bush administration, says: “This is the key protection that people have if they’re held in violation of the law. If there’s no habeas corpus, and if the government wants to pick you or me off the street and hold us indefinitely, how do we get our release?” Former Reagan Justice Department official Douglas Kmiec agrees. If Gonzales’s view prevails, Kmiec says, “one of the basic protections of human liberty against the powers of the state would be embarrassingly absent from our constitutional system.” A Justice Department spokesman says that Gonzales is only noting the absence of a specific constitutional guarantee for habeas corpus, and acknowledges that the Supreme Court has declared “the Constitution protects [habeas corpus] as it existed at common law” in England. These rights, the spokesman says, do not apply to foreigners held as enemy combatants. [San Francisco Chronicle, 1/24/2007]
Habeas Protected in Constitution - The right of habeas corpus is clear in Article I, Section 9, Clause 2 of the Constitution: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” [Think Progress, 1/19/2007]
Expansion of Presidential Powers - Former Reagan Justice Department attorney Bruce Fein says that Gonzales’s stance on habeas corpus is an underpinning of the Bush administration’s attempt to advocate the “unitary executive” theory of presidential power. Gonzales’s statements contain a message: “Congress doesn’t have to let [judges] decide national security matters. It’s part of an attempt to create the idea that during conflicts, the three branches of government collapse into one, and it is the president.” [San Francisco Chronicle, 1/24/2007]

Entity Tags: Senate Judiciary Committee, Military Commissions Act, George W. Bush, Patrick J. Leahy, Erwin Chemerinsky, Central Intelligence Agency, Alberto R. Gonzales, Arlen Specter, Douglas Kmiec, Bush administration (43), Bruce Fein

Timeline Tags: Civil Liberties

Nieman Reports, a quarterly magazine about journalism, publishes an article by investigative journalist Craig Pyes describing how the US Army attempted to undermine a Los Angeles Times investigation looking into the March 2003 deaths of two Afghan detainees (see March 16, 2003). It is believed that members of a Special Forces detachment in Afghanistan murdered the two men, identified as Jamal Naseer and Wakil Mohammed, and then covered up the circumstances surrounding their deaths. An official investigation into the two deaths by the Army’s Criminal Investigation Command (CID) found insufficient probable cause to bring charges for either of the two deaths. As a result of the CID investigation, two soldiers were given noncriminal administrative letters of reprimand (see January 26, 2007) for “slapping” prisoners at the Gardez facility and for failing to report the death of Naseer. In his article, Pyes recounts the resistance he and his colleague Kevin Sack encountered from the military as they sought information about the two deaths. The military refused to disclose basic information about the circumstances surrounding the two deaths, including the two men’s identities, the circumstances of their detention, the charges against them, court papers, and investigative findings. The journalists also learned that soldiers had been told by their superiors that it was important that everyone be “on the same page in case there was an investigation.” During their investigation, they also discovered that “military examiners had made some significant errors, including their initial failure to identify the victims. They also grossly misidentified dates of crucial events and persistently failed to interview key people and locate supporting documents.” [Nieman Watchdog, 3/2/2007]

Entity Tags: Wakil Mohammed, United Nations Assistance Mission in Afghanistan, US Special Forces, Jamal Naseer, Los Angeles Times, Criminal Investigation Command

Timeline Tags: Torture of US Captives, War in Afghanistan

Former Deputy Attorney General James Comey delivers dramatic testimony before the Senate Judiciary Committee about the March 2004 attempts by then-White House counsel Alberto Gonzales and then-White House chief of staff Andrew Card to pressure a seriously ill John Ashcroft, then the attorney general, to certify the legality of the Bush/NSA domestic wiretapping program (see March 10-12, 2004, Early 2002). Comey testifies that even though he, who at the time has the full authority of the attorney general during Ashcroft’s illness, and Ashcroft both refused to authorize the program due to their belief that the program is illegal, President Bush will certify the program anyway. Only a threatened mass resignation by Ashcroft, Comey, FBI director Robert Mueller, and other senior officials will persuade Bush, weeks later, to make changes in the program that bring it somewhat closer to operating within the law. [Think Progress, 5/15/2007; Washington Post, 5/16/2007]
Bush Sent Gonzales, Card to Ashcroft's Hospital Room, Comey Believes - Comey says that while he cannot be certain, he believes Gonzales and Card went to Ashcroft’s hospital room on orders from President Bush: “I have some recollection that the call was from the president himself, but I don’t know that for sure,” he tells the committee. His major concern in heading off Gonzales and Card at the hospital, Comey testifies, is that, “given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to do that.” Comey says he was “stunned” by how forceful Ashcroft was in refusing to comply with Gonzales and Card’s directive to sign the reauthorization.
Gonzales a 'Loyal Bushie' - Committee members are openly contemptuous of Gonzales’s actions, and question his fitness to serve as attorney general. “He’s presided over a Justice Department where being a, quote, loyal Bushie seems to be more important than being a seasoned professional, where what the White House wants is more important than what the law requires or what prudence dictates,” says Charles Schumer (D-NY). Arlen Specter (R-PA) is hardly less critical. “It is the decision of Mr. Gonzales as to whether he stays or goes, but it is hard to see how the Department of Justice can function and perform its important duties with Mr. Gonzales remaining where he is,” Specter says. “And beyond Mr. Gonzales’s decision, it’s a matter for the president as to whether the president will retain the attorney general or not.” [New York Times, 5/15/2007]
Not a 'Team Player' - Interestingly, President Bush views Comey with disdain because Comey isn’t what Bush calls a “team player;” Bush earlier tagged Comey, who resigned his position in 2005 and who previously tangled with the White House over its embrace of torture for terrorist suspects, with the derisive nickname “Cuomo,” after the former Democratic governor of New York, Mario Cuomo, famous for vacillating over whether to run for the presidency in the 1980s. The White House denies the nickname. [Newsweek, 1/9/2006] Comey is not popular in the White House in part because of his 2003 appointment of special prosecutor Patrick Fitzgerald to investigate Vice President Dick Cheney’s chief of staff, Lewis “Scooter” Libby, for perjury connected to the outing of CIA agent Valerie Plame Wilson (see Shortly after February 13, 2002). And after the 9/11 attacks, Comey challenged Cheney’s assertions that the use of torture and other “war on terror” policies were legal (see January 9, 2002). Comey says he has been prepared to testify about the Ashcroft hospital visit for three years, but never did until now, because “Nobody ever asked.…I’ve never been in a forum where I was obligated to answer the question. Short of that, it was not something I was going to volunteer.” Card says that his actions at the hospital earned him bureaucratic punishment from Card. After Gonzales became attorney general, Ashcroft’s then-chief of staff, Kyle Sampson, told Comey that Gonzales’s “vision” was to merge the deputy’s office with Gonzales’s own office, stripping Comey of much of his autonomy and reducing him, in essence, to a staff member. Comey refused to cooperate. “You may want to try that with the next deputy attorney general,” Comey told Sampson. “But it’s not going to work with me.” [US News and World Report, 5/20/2007]

Entity Tags: Robert S. Mueller III, Valerie Plame Wilson, Richard (“Dick”) Cheney, Senate Judiciary Committee, D. Kyle Sampson, Patrick J. Fitzgerald, Alberto R. Gonzales, Andrew Card, John Ashcroft, James B. Comey Jr., George W. Bush

Timeline Tags: Civil Liberties

The American Civil Liberties Union learns of another Justice Department memo in a Freedom of Information Act (FOIA) response that produces a 2003 memo supporting the use of torture against terror suspects (see April 1, 2008). This 2001 memo (see October 23, 2001), says that the Constitution’s protections against unreasonable searches and seizures—fundamental Fourth Amendment rights—do not apply in the administration’s efforts to combat terrorism. The Bush administration now says it disavows that view.
Background - The memo was written by John Yoo, then the deputy assistant attorney general, and the same lawyer who wrote the 2003 torture memo. It was written at the request of the White House and addressed to then-Attorney General Alberto Gonzales. The administration wanted a legal opinion on its potential responses to terrorist activity. The 37-page memo itself has not yet been released, but was mentioned in a footnote of the March 2003 terror memo. “Our office recently concluded that the Fourth Amendment had no application to domestic military operations,” the footnote states, referring to a document titled “Authority for Use of Military Force to Combat Terrorist Activities Within the United States.”
Relationship to NSA Wiretapping Unclear - It is not clear exactly what domestic military operations the October memo covers, but federal documents indicate that the memo relates to the National Security Agency’s Terrorist Surveillance Program (TSP). The TSP began after the 9/11 attacks, allowing for warrantless wiretaps of phone calls and e-mails, until it stopped on January 17, 2007, when the administration once again began seeking surveillance warrants from the Foreign Intelligence Surveillance Court (see May 1, 2007). White House spokesman Tony Fratto says that the October 2001 memo is not the legal underpinning for the TSP. Fratto says, “TSP relied on a separate set of legal memoranda” outlined by the Justice Department in January 2006, a month after the program was revealed by the New York Times (see February 2001, After September 11, 2001, and December 15, 2005). Justice Department spokesman Brian Roehrkasse says department officials do not believe the October 2001 memo was about the TSP, but refuses to explain why it was included on FOIA requests for documents linked to the TSP.
No Longer Applicable - Roehrkasse says the administration no longer holds the views expressed in the October 2001 memo. “We disagree with the proposition that the Fourth Amendment has no application to domestic military operations,” he says. “Whether a particular search or seizure is reasonable under the Fourth Amendment requires consideration of the particular context and circumstances of the search.” The ACLU’s Jameel Jaffer is not mollified. “The recent disclosures underscore the Bush administration’s extraordinarily sweeping conception of executive power,” he says. “The administration’s lawyers believe the president should be permitted to violate statutory law, to violate international treaties and even to violate the Fourth Amendment inside the US. They believe that the president should be above the law.” He continues, “Each time one of these memos comes out you have to come up with a more extreme way to characterize it.” The ACLU has filed a court suit to challenge the government’s withholding of the memo. [Associated Press, 4/3/2008] Another civil rights group, the Electronic Frontier Foundation, joins the ACLU in challenging the memo (see April 2, 2008).

Entity Tags: Jameel Jaffer, Brian Roehrkasse, American Civil Liberties Union, Alberto R. Gonzales, Bush administration (43), Foreign Intelligence Surveillance Court, Terrorist Surveillance Program, US Department of Justice, John C. Yoo, Electronic Frontier Foundation, Tony Fratto

Timeline Tags: Civil Liberties

The Congressional Quarterly reports on a growing body of evidence that indicates US interrogators are using mind-altering drugs on prisoners suspected of terrorist ties. The evidence is not yet conclusive, but reporter Jeff Stein writes: “There can be little doubt now that the government has used drugs on terrorist suspects that are designed to weaken their resistance to interrogation. All that’s missing is the syringes and videotapes.”
Connection to Yoo Memo - The idea that the US might be using hallucinogenic or other drugs on detainees in Guantanamo and other US detention facilities was bolstered by the recent revelation of another “torture memo,” this one written in 2003 by then-Justice Department lawyer John Yoo (see March 14, 2003). Yoo wrote that US interrogators could use mind-altering drugs on terror suspects as long as the drugs did not produce “an extreme effect” calculated to “cause a profound disruption of the senses or personality.” Yoo first rationalized the use of drugs on prisoners in earlier “torture memos” (see January 9, 2002 and August 1, 2002).
Criticism - Stephen Miles, a bioethicist and author of a recent book detailing medical complicity in US torture of suspected terrorists, notes: “The new Yoo memo, along with other White House legal memoranda, shows clearly that the policy foundation for the use of interrogational drugs was being laid. The recent memo on mood-altering drugs does not extend previous work on this area. The use of these drugs was anticipated and discussed in the memos of January and February 2002 by [Defense Department, Justice Department], and White House counsel using the same language and rationale. The executive branch memos laid a comprehensive and reiterated policy foundation for the use of interrogational drugs.” Jeffrey Kaye, a clinical psychologist who works with torture victims through Survivors International, says plainly: “Yes, I believe [drugs] have been used. I came across some evidence that they were using mind-altering drugs, to regress the prisoners, to ascertain if they were using deception techniques, to break them down.”
Varieties of Drugs and Placebos Being Used? - It is well known that US military personnel often use sedatives on shackled and hooded prisoners on “rendition” flights from Middle Eastern countries to Guantanamo. There is no hard evidence to support claims that US interrogators are using hallucinogenic drugs such as LSD on detainees. However, Michael Caruso, who represents suspected al-Qaeda operative Jose Padilla (see May 8, 2002), filed a motion last year asserting that his client “was given drugs against his will, believed to be some form of lysergic acid diethylamide (LSD) or phencyclidine (PCP), to act as a sort of truth serum during his interrogations.” Caruso had no proof to back up his claim.
KUBARK - Stein notes that a 1963 CIA interrogation manual, code-named KUBARK, advocated the use of placebos as well as real drugs on prisoners. And Michael Gelles, a psychologist with the Naval Criminal Investigative Institute who has spoken out against the abuse of prisoners at Guantanamo, says that he never saw anything related to drugs. “I never saw that raised as an issue,” he says. Hallucinogens such as LSD do not make subjects tell the truth. According to KUBARK, “Their function is to cause capitulation, to aid in the shift from resistance to cooperation.”
Winging It - In July 2003, the CIA, the RAND Corporation, and the American Psychological Association hosted a workshop that explored the question of using drugs to “affect apparent truth-telling behavior” (see June 17-18, 2003). After 9/11, top Bush administration officials pushed military commanders for quick intelligence but, according to a recent study, the interrogators unsure how to use harsher methodologies (see December 2006) and began “mak[ing] it up on the fly.”
Guantanamo - Guantanamo staff judge advocate Lieutenant Colonel Diane Beaver says that some of the interrogators drew inspiration from the popular TV drama 24 (see Fall 2006). Beaver makes no mention of drugs being used, but Ewe Jacobs, the director of Survivors International, says she may not have seen or heard about their use. “The Guantanamo camps were isolated from one another,” he says. What happened in one part of the facility may not have been known in other areas. Miles adds, “I suspect that most of the use of interrogational drugs was by CIA and Special Ops interrogators, and thus still remains classified.”
Credibility Issues - As with victims of the CIA’s MK-ULTRA program from the 1960s and 70s, when unwitting subjects were dosed with hallucinogenic drugs and their reactions catalogued and observed, the detainees who may have been forcibly given such drugs will likely not be believed by many. Absent hard evidence, many will consider the detainees either “looney,” in Stein’s words, or liars. Few believe that Padilla was drugged. And, Stein concludes, “Even fewer will believe the other prisoners, a number of whom are deranged from prolonged interrogation—if they ever get out.” [Congressional Quarterly, 4/4/2008]

Entity Tags: Jose Padilla, Ewe Jacobs, Diane E. Beaver, Central Intelligence Agency, Bush administration (43), American Psychological Association, Jeff Stein, John C. Yoo, Richard (“Dick”) Cheney, US Department of the Army, Jeffrey Kaye, Stephen Miles, RAND Corporation, Michael Caruso, Michael Gelles, Survivors International

Timeline Tags: Torture of US Captives

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

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

Timeline Tags: Civil Liberties

Mohamed al-Khatani in September 2009.Mohamed al-Khatani in September 2009. [Source: US Defense Department]Military prosecutors at Guantanamo say they are going to file new war crimes charges against Mohamed al-Khatani, the so-called “20th hijacker” in the 9/11 plot. The senior official in charge of prosecutions at Guantanamo, Susan Crawford, dismissed similar charges against al-Khatani six months before (see May 13, 2008). Military officials now say that even though al-Khatani was originally interrogated using previously approved, then later disapproved, techniques (see August 8, 2002-January 15, 2003 and October 11, 2002), those previous interrogations will not make it impossible to try him. Speculation has been rife that Crawford dismissed the charges against al-Khatani over concerns that he was tortured at Guantanamo. (In 2009, Crawford will verify that al-Khatani was indeed tortured—see January 14, 2009). Colonel Lawrence Morris, the chief prosecutor at Guantanamo, says of al-Khatani, “His conduct is significant enough that he falls into the category of people who ought to be held accountable by being brought to trial.” According to evidence compiled by the 9/11 Commission, al-Khatani was slated to have been one of the “muscle hijackers” (see August 4, 2001). Lieutenant Colonel Bryan Broyles, al-Khatani’s defense lawyer, says new charges filed against his client would be disturbing. “It speaks about the moral bankruptcy of this whole process,” Broyles says, “that there’s nothing we can do to these people that is too much, that there are no consequences for our own misconduct.” [New York Times, 11/18/2008]

Entity Tags: Mohamed al-Khatani, Susan Crawford, Bryan Broyles, Lawrence J. Morris

Timeline Tags: Torture of US Captives

Susan Crawford.Susan Crawford. [Source: Susan Crawford / Washington Post]The senior Bush administration official in charge of bringing Guantanamo Bay detainees to trial rules that the US military tortured a detainee, and therefore the US cannot try him. Susan Crawford, the convening authority of military commissions, says that the US tortured Mohamed al-Khatani, a Saudi national accused of planning to participate in the September 11 attacks (see August 4, 2001). Crawford says al-Khatani was interrogated with techniques that included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, and which cumulatively left him in a “life-threatening condition.” Crawford says: “We tortured [al-]Khatani. His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution. Crawford is a retired judge who served as the Army’s general counsel during the Reagan administration and the Pentagon’s inspector general during the first Bush administration. She is the first senior official of the current Bush administration to publicly state that a detainee was tortured while in US custody.
Cumulative Effect Equals Torture - None of the individual techniques used against al-Khatani were torturous in and of themselves, Crawford says, but the cumulative effect—particularly their duration and the deleterious effect on al-Khatani’s health—combined to constitute torture. “The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent,” she says. “You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge” to call it torture. Al-Khatani has been in US custody since December 2001 (see December 2001), and was interrogated from November 2002 through January 2003 (reports of the exact dates vary—see August 8, 2002-January 15, 2003 and October 11, 2002). He was held in isolation until April 2003. “For 160 days his only contact was with the interrogators,” Crawford says. “Forty-eight of 54 consecutive days of 18-to-20-hour interrogations. Standing naked in front of a female agent. Subject to strip searches. And insults to his mother and sister.” He was threatened with a military dog named Zeus. He “was forced to wear a woman’s bra and had a thong placed on his head during the course of his interrogation,” Crawford says, and “was told that his mother and sister were whores.” With a leash tied to his chains, he was led around the room “and forced to perform a series of dog tricks,” according to reports from his interrogations. He was twice hospitalized with bradycardia, a potentially lethal condition where the heartbeat drops to abnormally low levels.
Ruling Halts Future Prosecution against al-Khatani - Crawford dismissed war crimes charges against al-Khatani in May 2008 (see May 13, 2008). In November, military prosecutors said they would refile charges against al-Khatani, based on subsequent interrogations that did not employ harsh techniques (see November 18, 2008). But Crawford says that she would not let any such prosecutions go forward. However, Crawford is not unaware of the potential danger posed by letting him go free. “There’s no doubt in my mind he would’ve been on one of those planes had he gained access to the country in August 2001,” Crawford says. “He’s a muscle hijacker.… He’s a very dangerous man. What do you do with him now if you don’t charge him and try him? I would be hesitant to say, ‘Let him go.’” Al-Khatani’s civilian lawyer, Gitanjali Gutierrez, says, “There is no doubt he was tortured.” Gutierrez says: “He has loss of concentration and memory loss, and he suffers from paranoia.… He wants just to get back to Saudi Arabia, get married and have a family.” Al-Khatani “adamantly denies he planned to join the 9/11 attack,” she adds. “He has no connections to extremists.” Gutierrez says she thinks Saudi Arabia has an effective rehabilitation program and Khatani ought to be returned there. [Washington Post, 1/14/2009; New York Times, 1/14/2009] His lawyers at the Center for Constitutional Rights describe him as a broken, suicidal man who can never be prosecuted because of his treatment at the hands of his captors. [New York Times, 1/14/2009]
Sympathetic but Unbending - Crawford, a lifelong Republican, says she sympathizes with the situation faced by the Bush administration and the CIA after the 9/11 attacks. “I sympathize with the intelligence gatherers in those days after 9/11, not knowing what was coming next and trying to gain information to keep us safe,” she acknowledges. “But there still has to be a line that we should not cross. And unfortunately what this has done, I think, has tainted everything going forward.” Noting that the 2006 Hamdan v. Rumsfeld case (see June 30, 2006) disallowed torture but allowed for “coercive interrogation techniques,” Crawford says even those techniques should not be allowed: “You don’t allow it in a regular court.” Crawford says she is not yet sure if any of the other five detainees accused of participating in the 9/11 plot, including their leader, Khalid Shaikh Mohammed, were tortured, but she believes they may have been. “I assume torture,” she says, and notes that CIA Director Michael Hayden has publicly confirmed that Mohammed was one of three detainees subjected to waterboarding, a technique classified by law as torture. Crawford has not blocked prosecution of the other five detainees. Ultimately, she says, the responsibility for the farrago of illegal detentions and torture rests with President Bush. He was right to create a system to try suspected terrorists, she says, but the implementation was fatally flawed. “I think he hurt his own effort.… I think someone should acknowledge that mistakes were made and that they hurt the effort and take responsibility for it.… We learn as children it’s easier to ask for forgiveness than it is for permission. I think the buck stops in the Oval Office.” [Washington Post, 1/14/2009]
Rules Change - Pentagon spokesman Geoff Morrell says that the Hamdan case changed the rules, and thus retroactively classified al-Khatani’s treatment as torture. “The [Defense] Department has always taken allegations of abuse seriously,” he says. “We have conducted more than a dozen investigations and reviews of our detention operations, including specifically the interrogation of Mohamed al-Khatani, the alleged 20th hijacker. They concluded the interrogation methods used at [Guantanamo], including the special techniques used on Khatani in 2002, were lawful. However, subsequent to those reviews, the Department adopted new and more restrictive policies and procedures for interrogation and detention operations. Some of the aggressive questioning techniques used on al-Khatani, although permissible at the time, are no longer allowed in the updated Army field manual.” [Washington Post, 1/14/2009]
Prosecutors Unprepared - When Crawford came to Guantanamo as convening authority in 2007, she says “the prosecution was unprepared” to bring cases to trial. Even after four years of working possible cases, “they were lacking in experience and judgment and leadership.” She continues: “A prosecutor has an ethical obligation to review all the evidence before making a charging decision. And they didn’t have access to all the evidence, including medical records, interrogation logs, and they were making charging decisions without looking at everything.” It took over a year, and the intervention of Deputy Defense Secretary Gordon England, for prosecutors to turn over possibly exculpatory evidence to defense lawyers, even though the law requires that such evidence be turned over immediately. The entire system at Guantanamo is a blot on the reputation of the US and its military judicial system, she says: “There’s an assumption out there that everybody was tortured. And everybody wasn’t tortured. But unfortunately perception is reality.” The system she oversees cannot function now, she believes. “Certainly in the public’s mind, or politically speaking, and certainly in the international community” it may be forever tainted. “It may be too late.” [Washington Post, 1/14/2009]

Entity Tags: Susan Crawford, Gordon England, Gitanjali Gutierrez, George W. Bush, Geoff Morrell, Central Intelligence Agency, Khalid Shaikh Mohammed, Bush administration (43), Center for Constitutional Rights, Mohamed al-Khatani, US Department of Defense, Michael Hayden

Timeline Tags: Torture of US Captives

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

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

Timeline Tags: Torture of US Captives, Civil Liberties

Former Attorney General Alberto Gonzales tells an NPR reporter that he never allowed the Justice Department (DOJ) to become politicized, and that he believes the historical judgment of his tenure in the department will be favorable. He acknowledges making some errors, including failing to properly oversee the DOJ’s push to fire nine US attorneys in 2008, a process many believe was orchestrated by the White House with the involvement of Gonzales and then-White House political guru Karl Rove.
Failure to Engage - “No question, I should have been more engaged in that process,” he says, but adds that he is being held accountable for decisions made by his subordinates. “I deeply regret some of the decisions made by my staff,” he says, referring to his former deputy Paul McNulty, who resigned over the controversy after telling a Senate committee that the attorney firings were performance-related and not politically motivated. Gonzales says his then-chief of staff, Kyle Sampson, was primarily responsible for the US attorney review process and for working with McNulty. “If Paul McNulty makes a recommendation to me—if a recommendation includes his views—I would feel quite comfortable that those would be good recommendations coming to me” about the qualifications of the US attorneys under question, Gonzales says. He adds that he has “seen no evidence” that Rove or anyone at the White House tried to use the US attorneys to politicize the work at the DOJ. A review by the DOJ’s Inspector General found that the firing policy was fundamentally flawed, and that Gonzales was disengaged and had failed to properly supervise the review process.
Claims He Was Unfairly Targeted by 'Mean-Spirited' Washington Insiders - Gonzales says he has been unfairly held responsible for many controversial Bush administration policies, including its refusal to abide by the Geneva Conventions (see Late September 2001, January 9, 2002, January 18-25, 2002, January 25, 2002, August 1, 2002, November 11, 2004, and January 17, 2007) and its illegal eavesdropping on US citizens (see Early 2004, March 9, 2004, December 19, 2005, Early 2006, and February 15, 2006), because of his close personal relationship with former President Bush. Washington, he says, is a “difficult town, a mean-spirited town.” He continues: “Sometimes people identify someone to target. That’s what happened to me. I’m not whining. It comes with the job.”
Visiting Ashcroft at the Hospital - In 2004, Gonzales, then the White House counsel, and White House chief of staff Andrew Card raced to the bedside of hospitalized Attorney General John Ashcroft to persuade, or perhaps coerce, Ashcroft to sign off on a secret government surveillance program (see March 10-12, 2004). The intervention was blocked by Deputy Attorney General James Comey (see March 12-Mid-2004). Gonzales says he has no regrets about the incident: “Neither Andy nor I would have gone there to take advantage of somebody who was sick. We were sent there on behalf of the president of the United States.” As for threats by Justice Department officials to resign en masse over the hospital visit (see Late March, 2004), Gonzales merely says, “Lawyers often disagree about important legal issues.”
Warning about Plain Speaking - Gonzales says Obama’s attorney general nominee, Eric Holder, should refrain from making such statements as Holder made last week when he testified that waterboarding is torture. “One needs to be careful in making a blanket pronouncement like that,” Gonzales says, adding that such a statement might affect the “morale and dedication” of intelligence officials and lawyers who are attempting to make cases against terrorism suspects. [National Public Radio, 1/26/2009]

Entity Tags: US Department of Justice, Eric Holder, Bush administration (43), Andrew Card, Alberto R. Gonzales, Geneva Conventions, George W. Bush, James B. Comey Jr., Karl C. Rove, Paul J. McNulty, D. Kyle Sampson

Timeline Tags: Civil Liberties

John Yoo, the former Bush administration legal adviser who authored numerous opinions on the legality of torture, detentions without legal representation, and warrantless wiretapping (see November 6-10, 2001, December 28, 2001, January 9, 2002, August 1, 2002, and August 1, 2002, among others), writes an op-ed for the Wall Street Journal opposing the Obama administration’s intent to close the Guantanamo Bay detention facility (see January 20, 2009 and January 22, 2009)) and restrict the CIA’s ability to torture detainees (see January 22, 2009). Yoo, now a law professor and a member of the neoconservative American Enterprise Institute, writes that while President Obama’s decision “will please his base” and ease the objections to the Bush “imperial presidency,” it will “also seriously handicap our intelligence agencies from preventing future terrorist attacks.” Yoo writes that the Obama decisions mark a return “to the failed law enforcement approach to fighting terrorism that prevailed before Sept. 11, 2001.” Yoo recommends that Obama stay with what he calls “the Bush system” of handling terror suspects. Yoo fails to note that the US law enforcement system prevented, among others, the “millennium bombing” plot (see December 14, 1999), the plot to bomb New York City’s Lincoln and Holland Tunnels (see June 24, 1993), and Operation Bojinka (see January 6, 1995).
Obama Needs to be Able to Torture Prisoners Just as Bush Did, Yoo Declares - And by eschewing torture, Obama is giving up any chance on forcing information from “the most valuable sources of intelligence on al-Qaeda” currently in American custody. The Bush administration policies prevented subsequent terrorist attacks on the US, Yoo contends, and Obama will need the same widespread latitude to interrogate and torture prisoners that Bush employed: “What is needed are the tools to gain vital intelligence, which is why, under President George W. Bush, the CIA could hold and interrogate high-value al-Qaeda leaders. On the advice of his intelligence advisers, the president could have authorized coercive interrogation methods like those used by Israel and Great Britain in their antiterrorism campaigns. (He could even authorize waterboarding, which he did three times in the years after 9/11.)” It is noteworthy that Yoo refused to confirm that Bush ordered waterboarding of suspects during his previous Congressional hearings (see June 26, 2008).
Interrogations Must be 'Polite' - According to Yoo, in forcing the CIA and other US interrogators to follow the procedures outlined in the Army Field Manual, they can no longer use “coercive techniques, threats and promises, and the good-cop bad-cop routines used in police stations throughout America.… His new order amounts to requiring—on penalty of prosecution—that CIA interrogators be polite. Coercive measures are unwisely banned with no exceptions, regardless of the danger confronting the country.” [Wall Street Journal, 1/29/2009] Yoo is incorrect in this assertion. The Army Field Manual explicitly countenances many of the “coercive techniques, threats and promises, and the good-cop bad-cop routines” Yoo says it bans. Further, the Field Manual says nothing about requiring interrogators to be “polite.” [Army, 9/2006] And actual field interrogators such as the Army’s Matthew Alexander have repeatedly said that torturing prisoners is ineffective and counterproductive, while building relationships and treating prisoners with dignity during interrogations produces usable, reliable intelligence (see November 30, 2008).
Shutting Down Military Commissions - Obama’s order to stay all military commission trials and to review the case of “enemy combatant” Ali Saleh al-Marri (see June 23, 2003) is also mistaken, Yoo writes. Yoo fears that Obama will shut down the military commissions in their entirety and instead transfer detainees charged with terrorist acts into the US civilian court system. He also objects to Obama’s apparent intent to declare terrorists to be prisoners of war under the Geneva Conventions, instead of following the Bush precedent of classifying terrorists “like pirates, illegal combatants who do not fight on behalf of a nation and refuse to obey the laws of war.” To allow terror suspects to have rights under Geneva and the US legal system, Yoo asserts, will stop any possibility of obtaining information from those suspects. Instead, those suspects will begin using the legal system to their own advantage—refusing to talk, insisting on legal representation and speedy trials instead of cooperating with their interrogators. “Our soldiers and agents in the field will have to run more risks as they must secure physical evidence at the point of capture and maintain a chain of custody that will stand up to the standards of a civilian court,” Yoo writes. [Wall Street Journal, 1/29/2009] In reality, the Supreme Court’s ruling in Hamdan v. Rumsfeld (see June 30, 2006), as well as the Detainee Treatment Act (see December 15, 2005) and the Military Commissions Act (see October 17, 2006), all mandate that detainees must be handled according to the Geneva Conventions.
Risk to Americans - Another effect of transferring detainees into the civilian justice system, Yoo claims, is to allow “our enemies to obtain intelligence on us.” Defense lawyers will insist on revealing US intelligence—information and methods—in open court, and will no doubt force prosecutors to accept plea bargains “rather than risk disclosure of intelligence secrets.”
Obama 'Open[ed] the Door to Further Terrorist Acts on US Soil' - Obama said in his inaugural speech that the US must “reject as false the choice between our safety and our ideals.” Yoo calls that statement “naive,” and writes, “That high-flying rhetoric means that we must give al-Qaeda—a hardened enemy committed to our destruction—the same rights as garden-variety criminals at the cost of losing critical intelligence about real, future threats.” By making his choices, Yoo writes, “Mr. Obama may have opened the door to further terrorist acts on US soil by shattering some of the nation’s most critical defenses.” [Wall Street Journal, 1/29/2009]

Entity Tags: John C. Yoo, Barack Obama, American Enterprise Institute, Wall Street Journal, Obama administration

Timeline Tags: Torture of US Captives, Civil Liberties

Two senior Bush administration officials reflect on the executive order denying any Geneva Convention protections to Taliban and al-Qaeda detainees (see February 7, 2002). Jack Goldsmith, formerly head of the Office of Legal Counsel (OLC) at the Justice Department, says: “To conclude that the Geneva Conventions don’t apply—it doesn’t follow from that, or at least it shouldn’t, that detainees don’t get certain rights and certain protections. There are all sorts of very, very good policy reasons why they should have been given a rigorous legal regime whereby we could legitimatize their detention. For years there was just a giant hole, a legal hole of minimal protections, minimal law.” Lawrence Wilkerson, the chief of staff for Secretary of State Colin Powell, recalls: “Based on what the secretary and [State Department legal adviser William] Taft were telling me, I think they both were convinced that they had managed to get the president’s attention with regard to what they thought was the governing document, the Geneva Conventions. I really think it came as a surprise when the February memo was put out. And that memo, of course, was constructed by [Cheney chief counsel David] Addington, and I’m told it was blessed by one or two people in OLC. And then it was given to [Vice President] Cheney, and Cheney gave it to the president. The president signed it.” [Vanity Fair, 2/2009]

Entity Tags: Lawrence Wilkerson, Jack Goldsmith

Timeline Tags: Civil Liberties

Retired Major General Anthony Taguba, who headed an intensive military investigation into the abuses at Abu Ghraib prison (see March 9, 2004), is one of the most prominent supporters of the call to investigate the Bush administration’s interrogation, detention, and torture policies. Taguba joins 18 human rights organizations, former State Department officials, former law enforcement officers, and former military leaders in asking President Obama to create a non-partisan commission to investigate those abuses. Even though prosecuting former Bush officials might be difficult, Taguba says, a commission would provide some measure of accountability for the practices Taguba calls “misguided,” “illegal,” “despicable and questionable.” Taguba wants the commission to study the Bush administration’s claims that torture provides good intelligence, which he disputes. He particularly wants the commission to investigate administration officials’ claims that the administration’s policies were legal. Taguba says he supports “a structured commission with some form of authority with clear objectives and a follow-on action plan. I’m not looking for anything that is prosecutorial in nature, unless a suspected violation of relevant laws occurred, which should be referred to the Department of Justice.… In my opinion, our military prosecuted those who were involved in torture or unlawful interrogation. And I think our military has come to terms with that. We are an institution that prides itself on taking corrective action immediately, admitting to it, and holding ourselves accountable. And we have done that. But I am not so sure that our civilian authorities in government have done that for themselves.” Speaking about the Bush Justice Department’s findings that torture and indefinite detentions are legal (see Late September 2001, November 11-13, 2001, December 28, 2001, January 9, 2002, August 1, 2002, and August 1, 2002), Taguba says: “This notion that a lot of constitutional legal experts—lawyers with great intellect, well educated—came up with such despicable and questionable legal findings that were contrary to the definition of defending the Constitution? And then they framed this as if the executive branch had the authority to extend beyond the constitution to establish a policy of torture and illegal detention?… Some of those that were tortured were innocent. How do we come to terms with those that were cruelly mistreated and were innocent, never charged, were illegally detained, and never compensated for their suffering? This is not a political issue, but a moral and ethical dilemma which has far-reaching implications.” [Salon, 2/21/2009]

Entity Tags: Antonio M. Taguba

Timeline Tags: Torture of US Captives

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

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

Timeline Tags: Civil Liberties

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

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

Timeline Tags: Civil Liberties

The Justice Department’s Office of Professional Responsibility (OPR) begins an investigation of the department’s lawyers who signed off on the Bush administration’s torture policies, in particular John Yoo (see Late September 2001 and January 9, 2002), Jay Bybee (see August 1, 2002 and August 1, 2002), and Steven Bradbury (see May 10, 2005, June 23, 2005 and July 2007). The OPR investigation will determine whether these lawyers shirked their professional responsibilities in deciding that particular torture techniques were, in fact, legal; if that conclusion is reached, then prosecutors could make the case that the lawyers knowingly broke the law. Today, the press learns that the OPR has obtained archived e-mail messages from the time when the memorandums were being drafted. Senator Russ Feingold (D-WI) has urged President Obama “not to rule out prosecutions of those who implemented the program” until the OPR report, along with a long-awaited report by the Senate Intelligence Committee (see April 21, 2009), become available. Former Bush White House lawyer Bradford Berenson says he has seen a surge in “anxiety and anger” among his former colleagues, and says they should not be investigated. [New York Times, 4/22/2009] The Justice Department will refuse to bring sanctions against Yoo, Bybee, and Bradbury (see February 2010).

Entity Tags: Office of Professional Responsibility, Bradford Berenson, Barack Obama, Bush administration (43), John C. Yoo, Russell D. Feingold, Senate Intelligence Committee, US Department of Justice, Steven Bradbury, Jay S. Bybee

Timeline Tags: Torture of US Captives

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

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

Timeline Tags: Domestic Propaganda

The US Department of Justice’s Office of Professional Responsibility refuses to refer two former Bush administration officials to authorities for criminal or civil charges regarding their authorizations of the torture of suspected terrorists (see Before April 22, 2009). John C. Yoo and Jay S. Bybee, two senior officials in the DOJ’s Office of Legal Counsel, provided the legal groundwork that allowed American interrogators to use sleep deprivation, waterboarding, and other torture methods against terror suspects (see Late September 2001, January 9, 2002, and August 1, 2002). The report finds that Yoo and Bybee, along with former OLC head Steven Bradbury, exhibited “poor judgment” in their actions. The OPR refuses to make the report’s conclusions public. It is known that senior Justice Department official David Margolis made the decision not to refer Yoo and Bybee for legal sanctions. [Office of Professional Responsibility, US Department of Justice, 7/29/2009 pdf file; Washington Post, 1/31/2010]

Entity Tags: John C. Yoo, Bush administration (43), David Margolis, Jay S. Bybee, Office of Professional Responsibility, US Department of Justice, Steven Bradbury, Office of Legal Counsel (DOJ)

Timeline Tags: Torture of US Captives

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

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

Timeline Tags: Civil Liberties

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