Profile: US Department of Justice
US Department of Justice was a participant or observer in the following events:
Senate Democrats attempt to pass a non-binding resolution asking Attorney General John Ashcroft to name a special counsel to investigate the Plame Wilson leak, but Republicans squelch the resolution on procedural grounds. Senator Charles Schumer (D-NY), the sponsor of the resolution, says, “This is not just a leak; this is a crime, plain and simple” and deserves an independent inquiry. Democrats say the Justice Department has an inherent conflict of interest in investigating the White House; they note that top Bush strategist Karl Rove, who has been accused of having a role in the leak, once was a consultant to Ashcroft. [Washington Post, 10/1/2003] US Attorney Patrick Fitzgerald will be named as special counsel for the investigation (see December 30, 2003).
Shortly after sending an e-mail to White House employees informing them of the FBI’s Plame Wilson investigation (see September 29-30, 2003), White House counsel Alberto Gonzales sends a second, more specific e-mail with instructions on saving any documents or materials that might be pertinent to that investigation. Gonzales writes: “This communication is a follow-up to the directive I sent you this morning regarding the preservation of certain materials in the possession of the White House, its staff, or its employees. Pursuant to a request from the Department of Justice, I am instructing you to preserve and maintain the following: [F]or the time period February 1, 2002 to the present, all documents, including without limitation all electronic records, telephone records of any kind (including but not limited to any records that memorialize telephone calls having been made), correspondence, computer records, storage devices, notes, memoranda, and diary and calendar entries, that relate in any way to:
“1. Former US Ambassador Joseph C. Wilson, his trip to Niger in February 2002, and/or his wife’s purported relationship with the Central Intelligence Agency;
“2. Contacts with any member or representative of the news media about Joseph C. Wilson, his trip to Niger in February 2002, and/or his wife’s purported relationship with the Central Intelligence Agency; and
“3. Contacts with reporters Knut Royce, Timothy M. Phelps, or Robert D. Novak, or any individual(s) acting directly or indirectly, on behalf of these reporters.
“You must preserve all documents relating, in any way, directly or indirectly, to these subjects, even if there would be a question whether the document would be a presidential or federal record or even if its destruction might otherwise be permitted. If you have any questions regarding any of the foregoing, please contact associate counsels Ted Ullyot or Raul Yanes in the counsel to the president’s office.” [Alberto R. Gonzales, 9/30/2003]
At an afternoon press briefing at the University of Chicago, President Bush is questioned about the Plame Wilson leak investigation (see September 26, 2003). Bush says that there are “too many leaks of classified information in Washington. There’s leaks at the executive branch; there’s leaks in the legislative branch. There’s just too many leaks. And if there is a leak out of my administration, I want to know who it is. And if the person has violated law, the person will be taken care of.” He is “absolutely confident that the Justice Department will do a very good job” in the investigation. “I want to know the truth. If anybody has got any information inside our administration or outside our administration, it would be helpful if they came forward with the information so we can find out whether or not these allegations are true and get on about the business.” Asked whether White House political strategist Karl Rove might be the source of the leak (see July 8, 2003, July 8 or 9, 2003, and 11:00 a.m. July 11, 2003), Busn replies: “Listen, I know of nobody—I don’t know of anybody in my administration who leaked classified information. If somebody did leak classified information, I’d like to know it, and we’ll take the appropriate action.” He remarks that “Washington is a town where there’s all kinds of allegations,” and again asks that if anyone has any “solid information, please come forward with it. And that would be people inside the information who are the so-called anonymous sources, or people outside the information—outside the administration. And we can clarify this thing very quickly if people who have got solid evidence would come forward and speak out. And I would hope they would. And then we’ll get to the bottom of this and move on.… I want to know who the leakers are.” [White House, 9/30/2003; CBS News, 9/30/2003]
Justice Department officials generate a list of US Attorneys by judicial district, with basic information about each one (names and relative sizes of district: “small,” “medium,” or “large”). Some have handwritten annotations included. Most of the names will be redacted when the list is released to the House Judiciary Committee in April 2007, but the names of US Attorneys fired in 2006 (see March 10, 2006, December 7, 2006, and December 20, 2006) are included. Kevin Ryan of the Northern District of California has the following annotation: “tough district; don’t know if he’d fit in to the mix very well,” and another indecipherable phrase. Carol Lam of the Southern District of California is notated as “very independent.” The officials who generate and notate the list are not identified. [US House of Representatives, Committee of the Judiciary, 4/13/2007 ]
The Justice Department posts on its Web site a heavily redacted copy of a report it had commissioned about its own record of racial diversity in the workplace. Half of the report’s 186 pages are censored, including the summary and conclusions. Russ Kick, the author and First Amendment activist who maintains the Web site “The Memory Hole,” downloads the report and realizes that he can digitally remove the redaction lines to read the report in its entirety. When he does so, he realizes that most of the redactions are to hide reports from minority lawyers at the department, who have filed numerous complaints claiming work conditions rife with “stereotyping, harassment, and racial tension.” When Kick posts the unredacted version of the Justice Department document, civil rights experts and Congressional Democrats accuse the department of trying to hide its findings to avoid culpability and negative publicity. But the department claims that the portions of the report that were redacted, including the conclusions, were “deliberative and predecisional,” and therefore legal to exclude under the Freedom of Information Act. [Russ Kick, 10/21/2003; Savage, 2007, pp. 105]
In the days after the Justice Department begins probing the Plame Wilson identity leak (see September 26, 2003 and September 29, 2003), Lewis “Scooter” Libby, the chief of staff to Vice President Dick Cheney, finds a reference in his notes that indicates he learned from Cheney that Valerie Plame Wilson was a covert CIA agent. According to his later testimony, Libby immediately goes to Cheney with the notes, in defiance of instructions from the FBI and the White House counsel’s office not to discuss the matter with colleagues (see September 29-30, 2003). “It turns out that I have a note that I had heard about” Plame Wilson’s CIA identity “from you,” Libby tells Cheney. Libby will later testify that Cheney “didn’t say much” in response. “You know, he said something about, ‘From me?’ something like that, and tilted his head, something he does commonly, and that was that.” [National Journal, 2/19/2007; Associated Press, 11/2/2009] Libby tells Cheney that his public story is that he learned of Plame Wilson’s identity from NBC bureau chief Tim Russert (see July 10 or 11, 2003). Cheney knows that the Russert story is untrue, but does nothing to discourage Libby from telling that story to the FBI (see October 14, 2003 and November 26, 2003) and a grand jury (see March 5, 2004 and March 24, 2004). Cheney also encourages White House press secretary Scott McClellan to publicly exonerate and defend Libby (see October 1, 2003, October 4, 2003, October 4, 2003, and October 5, 2003), who complains that the White House is not doing enough to protect him. In 2007, law professor and former federal prosecutor Dan Richman will say that any criminal interpretation of Cheney’s reaction to Libby’s story depends on the exact words the two men exchanged, and exactly what Cheney knew at the time. “Only Cheney and Libby know the import of their conversation, and as is often the case, each could have even come away with a different impression of what was meant” by what the other said, Richman will observe. “If Cheney was merely showing surprise and interest at what Libby [was] indicating to him he was going to tell investigators, then the vice president is innocent in the exchange. But if he had reason to believe, or personal knowledge, that what Libby was planning to say was untrue then there is good reason to view Cheney’s conduct in an entirely different light—an obstruction interpretation.” Libby knew that Plame Wilson was a CIA official a month before his discussion with Russert (see 12:00 p.m. June 11, 2003 and 2:00 p.m. June 11, 2003), and Cheney confirmed Plame Wilson’s CIA status to Libby around the same time (see (June 12, 2003)). [National Journal, 2/19/2007]
Washington lobbyist Kenneth Duberstein, a friend of Deputy Secretary of State Richard Armitage, calls columnist Robert Novak to say Armitage fears he might have “inadvertently” leaked to him the identity of CIA official Valerie Plame Wilson (see July 8, 2003 and October 1, 2003). (Authors Michael Isikoff and David Corn, in their 2006 book Hubris, will speculate that Duberstein arranged the July 2003 meeting between Novak and Armitage.) Duberstein says that Armitage is considering resigning over his action, and asks Novak if Armitage was his source. Novak declines to confirm Armitage’s status to Duberstein. Novak will later write: “I did not reply because I was sure that Armitage knew he was the source. I believed he contacted me Oct. 1 because of news the weekend of Sept. 27-28 that the Justice Department was investigating the leak” (see September 26, 2003). [Isikoff and Corn, 2006, pp. 252, 325-326; Human Events, 9/14/2006]
Deputy Secretary of State Richard Armitage, re-reading the July 14, 2003 column by conservative columnist Robert Novak that outed covert CIA officer Valerie Plame Wilson (see July 14, 2003) and Novak’s current column about the leak October 1, 2003), realizes that he was one of Novak’s sources (see July 8, 2003). In Armitage’s words, Novak wrote that he learned of Plame Wilson’s identity from “a non-partisan gun slinger.” Armitage calls his boss, Secretary of State Colin Powell, and says, “I’m sure that was me.” He tells the FBI investigators probing the leak of Plame Wilson’s identity of his role in outing the agent. “I told them that I was the inadvertent leak,” Armitage will admit in 2006. But he does not hire a lawyer. He will explain, “First of all, I felt so terrible about what I’d done that I felt I deserved whatever was coming to me. And secondarily, I didn’t need an attorney to tell me to tell the truth. I was already doing that. I was not intentionally outing anybody.” [CBS News, 9/7/2006] Within hours, William Howard Taft IV, the State Department’s legal adviser, notifies a senior Justice Department official that Armitage has information relevant to the Plame Wilson investigation (see September 26, 2003). Armitage will discuss the matter with FBI investigators the next day (see October 2, 2003). [Newsweek, 9/4/2006]
The Bush administration, prodded by polls showing that over 70 percent of Americans believe that someone in the White House leaked Valerie Plame Wilson’s CIA status to the press and almost that number is in favor of a special prosecutor to head an investigation, modifies its approach to its denials of involvement. According to the Washington Post, White House officials no longer proclaim the innocence of everyone employed by the executive branch, but now say that it is possible someone disclosed Plame Wilson’s identity without realizing that they were exposing a covert operative, and therefore no crime was committed. The first Congressional Republican to speak out against the administration’s handling of the issue is Senator Chuck Hagel (R-NE), who says that President Bush “needs to get this behind him” by taking a more active role. “He has that main responsibility to see this through and see it through quickly, and that would include, if I was president, sitting down with my vice president and asking what he knows about it,” Hagel says. Meanwhile, administration supporters outside the White House are stepping up their counteroffensive, telling reporters that the White House is fully cooperating with the Justice Department investigation and that the real story is Plame Wilson’s husband, Joseph Wilson, who is making “rash statements” denigrating the administration. Press secretary Scott McClellan is no longer denying a White House effort to discredit Wilson, a critic of the administration, but now tells reporters that the only issue “is whether or not someone leaked classified information.… I’m drawing a line here. I’m not going to play the game of going down other rabbit trails.” The White House has repeatedly insisted that it has no intention of appointing a special counsel to handle the investigation; critics say that Attorney General John Ashcroft’s Justice Department cannot lead an impartial probe. [Washington Post, 10/2/2003]
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
White House press secretary Scott McClellan reiterates the White House’s stance that three senior aides—deputy chief of staff Karl Rove, Vice President Dick Cheney’s chief of staff Lewis “Scooter” Libby, and National Security Council official Elliott Abrams—bear no responsibility for leaking the identity of covert CIA official Valerie Plame Wilson to the press. McClellan has already made the same assurances before (see September 29, 2003 and October 4, 2003). During a press briefing, he is asked: “Scott, you have said that you personally went to Scooter Libby, Karl Rove, and Elliott Abrams to ask them if they were the leakers. Is that what happened? Why did you do that? And can you describe the conversations you had with them? What was the question you asked them?” McClellan replies: “Yes, unfortunately, in Washington, DC, at a time like this, there are a lot of rumors and innuendo. There are unsubstantiated accusations that are made. And that’s exactly what happened in the case of these three individuals. They’re good individuals. They’re important members of our White House team. And that’s why I spoke with them, so that I could come back to you and say that they were not involved. I had no doubt with that, in the beginning (see October 4, 2003), but I like to check my information to make sure it’s accurate before I report back to you. And that’s exactly what I did.” A reporter asks: “You’re saying, categorically, those three individuals were not the leakers or did not authorize the leaks. Is that what you’re saying?” McClellan responds: “That’s correct. I have spoken with them.” A reporter then asks, “Did the president direct you to check with those individuals and get—to find out if they were the leaker?” McClellan refuses to answer directly, but says that President Bush “wants… to get to the bottom of this matter, the sooner the better,” and touts the White House’s “full cooperation” with the Justice Department investigation. Asked the same question again, McClellan again emphasizes the White House’s cooperation with the investigation, and adds, “I think part of cooperating fully is looking into these unsubstantiated accusations that were made to make it clear to everybody that those individuals are not involved.” He gives a similar answer when asked if Bush wants someone “to individually poll senior staff members to find out who the leaker is,” and adds that no one in the White House has any more information on the matter than has been made available in the media—a blanket, if indirect, denial of any White House involvement. McClellan also notes that it would be “premature” to speculate if the White House will claim executive privilege to keep any information out of the investigation (see October 7, 2003). [Washington Transcript Service, 10/7/2003]
White House officials scramble to meet the 5 p.m. deadline for submitting all documents, e-mails, and other materials that might be relevant to the FBI’s investigation of the outing of CIA officer Valerie Plame Wilson (see October 3, 2003). The White House counsel’s office, headed by Alberto Gonzales, says it will review all submitted materials before turning them over to the Justice Department, and may withhold those it deems irrelevant, perhaps asserting executive privilige or national security concerns. Democrats such as Senator Charles Schumer (D-NY) say this arrangement is unacceptable, and gives Gonzales undue control over potential evidence in such an important case. “I am very troubled by the fact that the White House counsel seems to be a gatekeeper, and I want to know what precautions Justice is taking to ensure that it gets all relevant information from the administration,” Schumer says. Government officials say the White House will begin turning over the most immediately relevant documents very soon, but the Justice Department will not get all the records for a week or more. The White House is operating under a schedule mutually agreed upon by both White House and Justice Department officials. [Washington Post, 10/8/2003]
Many legal experts are highly critical of President Bush’s recent declaration that the identity of the leaker of Valerie Plame Wilson’s CIA identity may never be known (see October 7, 2003), and the White House’s declaration that three senior aides—Karl Rove, Lewis Libby, and Elliott Abrams—are not responsible for the leak (see October 4, 2003 and October 5, 2003). They echo criticisms leveled by Senate Democrats, who say that such declarations undermine the investigation into the leak (see October 10, 2003). Not only do such statements call into question the independence of the Justice Department investigation (see September 26, 2003), the experts say, but the propriety of attempting to clear top officials before the investigation has concluded is equally questionable. Law professor Mary Cheh calls such statements “quite irregular” and says that they could have a chilling effect on the investigation. “It will take someone of considerable fortitude [in the Justice Department] to look past such statements” and investigate any of the officials, she notes. Abner Mikva, former White House counsel to President Clinton, says that despite the White House’s assurances that the three officials are innocent: “I would hope that the Justice Department will do whatever it is supposed to do anyway. But does it have a chilling effect? Sure it does.” Defense lawyer Jeralyn Merritt says if Bush claims not to know the identity of the leaker, neither he nor any White House officials can rule out the involvement of any of their personnel. “I think a special counsel would be an excellent idea,” she says. Law professor Stephen Gillers says White House press secretary Scott McClellan has no way to know if any of the three officials are innocent or guilty. If any of them are guilty, Gillers notes, they can be expected to go to great lengths to keep their participation secret. Gillers also says that Bush appears to be soft-pedaling the investigation by publicly doubting its effectiveness, even if most leak investigations do not yield the name of the leaker. Cheh says the only way the Justice Department can conduct a fair and independent investigation is if the White House ensures that the investigators are “walled off” from political considerations. [Chicago Tribune, 10/10/2003]
Entity Tags: Lewis (“Scooter”) Libby, Elliott Abrams, Abner Mikva, George W. Bush, Karl C. Rove, Scott McClellan, Jeralyn Merritt, Valerie Plame Wilson, Stephen Gillers, US Department of Justice, Mary Cheh
Timeline Tags: Niger Uranium and Plame Outing
Frank Lautenberg, one of the Senate Democrats critical of the White House’s response to the leak investigation. [Source: Washington Post]Congressional Democrats question whether President Bush and White House officials are trying to influence the Plame Wilson leak investigation through their comments. Recently, Bush told reporters that he doubted the person or persons who leaked CIA agent Valerie Plame Wilson’s identity to the press would ever be identified (see October 7, 2003). While administration officials say Bush was just acknowledging the difficulties such an investigation presents, Senator Frank Lautenberg (D-NJ) says his comments threaten to undermine the investigation by lowering expectations. “If the president says, ‘I don’t know if we’re going to find this person,’ what kind of a statement is that for the president of the United States to make?” Lautenberg asks. “Would he say that about a bank-robbery investigation? He should be as indignant as everybody else is over this breach.” Bush, says Lautenberg, “certainly seems far less certain about finding the leaker than he is about finding Osama bin Laden or Saddam Hussein.” Plame Wilson’s husband Joseph Wilson agrees. “This goes far beyond someone identifying my wife,” he says. “This was a breach of public trust, and I would think it would behoove the president to ensure that the appropriate assets are devoted to identifying the leaker.” In contrast, White House press secretary Scott McClellan says that criticism of the investigation “appear[s] to be more about politics than about getting to the bottom of the investigation.” Democrats are also critical of the White House’s vocal opposition to the appointment of a special prosecutor to handle the investigation. And they question McClellan’s recent attempts to exonerate three administration officials—Karl Rove, Lewis Libby, and Elliott Abrams—from any responsibility for the leak (see October 4, 2003 and October 5, 2003). In a letter to Bush, four Democratic senators—Tom Daschle (D-SD), Carl Levin (D-MI), Joseph Biden (D-DE), and Charles Schumer (D-NY)—write that McClellan’s assurances are part of an overall pattern of missteps and errors surrounding the White House’s response to the leak investigation. McClellan lacks the legal expertise to question possible suspects, they note. “The White House has now put the Justice Department in the position of having to determine not only what happened, but also whether to contradict the publicly stated position of the White House,” the senators write. Justice Department spokesman Mark Corallo says that anything White House officials say has “nothing to do with this investigation. The investigation will follow the facts.” [New York Times Magazine, 10/10/2003]
Entity Tags: George W. Bush, Charles Schumer, Carl Levin, Bush administration (43), Valerie Plame Wilson, Frank R. Lautenberg, US Department of Justice, Scott McClellan, Joseph Biden, Joseph C. Wilson, Elliott Abrams, Lewis (“Scooter”) Libby, Mark Corallo, Tom Daschle, Karl C. Rove
Timeline Tags: Niger Uranium and Plame Outing
A number of senior criminal prosecutors at the Justice Department, as well as top FBI officials, are privately critical of Attorney General John Ashcroft’s failure to recuse himself from the Plame Wilson leak investigation. Many say that the only way to ensure a fair and impartial investigation is to appoint a special prosecutor to handle the investigation. The New York Times calls the criticisms from the officials, who unanimously ask to remain anonymous, “the first sign of dissension in the department and the FBI as the inquiry nears a critical phase.” Ashcroft will soon have to decide whether to appoint a grand jury to look into the possibility of criminal conduct in the leak; such a grand jury could compel the testimony of White House officials. Ashcroft has long political and social ties to many White House officials, and as such, the Justice Department and FBI officials say, he cannot conduct an impartial investigation. Some of the Justice Department officials are supporters of Ashcroft, and worry that his reputation could be damaged by his failure to recuse himself. Democrats say the investigation has been tainted from the outset by Ashcroft’s relationship with White House officials. So far, a Justice Department official says, none of the prosecutors involved in the investigation have asked Ashcroft to recuse himself. [New York Times, 10/15/2003]
White House counsel Alberto Gonzales spurns advice from Democratic senators on how to ensure White House cooperation in the Plame Wilson leak investigation. In a letter, Gonzales writes, “We believe it is inconsistent with the constitution’s separation-of-powers principles for members of Congress to direct the president’s management of White House employees, as it would be for the president to suggest specific ways in which senators should handle their own staffs.” The senators had suggested, among other possible actions, firing any White House staffer who refused to cooperate with the Justice Department probe or tampered with records. [Reuters, 10/15/2003]
An internal CIA memo detailing the January 2002 meeting in which former ambassador Joseph Wilson was chosen to go to Niger to find out the truth behind the Iraq-Niger uranium allegations (see February 13, 2002) is published by the Wall Street Journal. The memo is due to be turned over to the Department of Justice along with thousands of other documents as part of its investigation into the outing of Wilson’s wife, CIA agent Valerie Plame Wilson (see September 26, 2003). The document shows that while Plame Wilson was involved in the decision to send her husband to Niger, she was not responsible for making the final decision, a conclusion already verified by CIA officials (see July 22, 2003). [Wall Street Journal, 10/17/2003]
Jim Marcinkowski (left) and Larry Johnson. [Source: CNN]Former CIA case officer Jim Marcinkowski, a former classmate of outed CIA case officer Valerie Plame Wilson (see Fall 1985), is outraged by the revelation of Plame Wilson’s CIA status and the allegations that the leak of her identity is not a crime (see July 14, 2003 and September 29, 2003). Another former classmate of Plame Wilson’s, former CIA agent Larry Johnson, says: “[W]hat I keep seeing in the newspaper is the spin and leak that this is no big deal. And that’s got to stop.… The problem with this is a lot of the damage that has occurred is not going to be seen. It can’t be photographed. We can’t bring the bodies out because in some cases it’s going to involve protecting sources and methods. And it’s important to keep this before the American people. This was a betrayal of national security.” Marcinkowski concurs: “This is an unprecedented act. This has never been done by the United States government before. The exposure of an undercover intelligence officer by the US government is unprecedented. It’s not the usual leak from Washington. The leak a week scenario is not at play here. This is a very, very serious event.” Plame Wilson was an NOC, or nonofficial cover officer (see Fall 1992 - 1996). “It was the most dangerous assignment you could take. It takes a special sort of person,” says Marcinkowski, who is now a prosecutor in Michigan. Former CIA official Kenneth Pollack agrees, describing an NOC’s identity as the “holiest of holies.” Many believe that the outrage among the rank and file of CIA agents and officials at Plame Wilson’s outing was so strong that CIA Director George Tenet had little choice but to recommend that the Justice Department investigate the leak (see September 16, 2003). Marcinkowski says: “In this particular case, it was so far over the line, I think myself and a lot of us were truly outraged that the government would do this.… I mean, we kept our mouths closed since 1985, when we joined.” Johnson, noting that both he and Marcinkowski are registered Republicans, says: “As a Republican, I think we need to be consistent on this. It doesn’t matter who did it, it didn’t matter which party was involved. This isn’t about partisan politics. This is about protecting national security and national security assets and in this case there has been a betrayal, not only of the CIA officers there, but really a betrayal of those of us who have kept the secrets over the years on this point.” [Guardian, 10/22/2003; CNN, 10/24/2003]
Former ambassador Joseph Wilson sits down with Jeff Gannon of Talon News to discuss the outing of his wife, Valerie Plame Wilson, as a CIA agent (see July 14, 2003), his trip to Niger that helped debunk the claim that Iraq tried to buy uranium from that country (see February 21, 2002-March 4, 2002 and July 6, 2003), and his concerns over the Iraq war. Wilson is unaware that Gannon is in reality James Guckert, a gay prostitute who moonlights as a fake journalist for the right-wing Talon News (see January 26, 2005 and January 28, 2005). Little of what Gannon/Guckert elicits is new information.
Access to Classified Information? - However, early in the interview, Gannon/Guckert refers to a classified memo when he says, “An internal government memo prepared by US intelligence personnel details a meeting in early 2002 where your wife, a member of the agency for clandestine service working on Iraqi weapons issues, suggested that you could be sent to investigate the reports.” The FBI will investigate Gannon/Guckert’s knowledge of the memo, but he will deny ever having seen it. It is not clear from whom he learned of the memo [Talon News, 10/28/2003; Wilson, 2007, pp. 216] , though he will insist that he received the information from “confidential sources.” [Antiwar (.com), 2/18/2005]
America Did Not Debate Redrawing the Middle East as a Rationale for War - Wilson notes that he considered “the invasion, conquest, and occupation of Iraq for the purpose of disarming Saddam [Hussein] struck me as the highest risk, lowest reward option.… [W]e ought to understand that sending our men and women to kill and to die for our country is the most solemn decision a government has to make and we damn well ought to have that debate before we get them into harm’s way instead of after.” He explains why the idea that his wife selected him for the Niger mission is incorrect. When Gannon/Guckert attempts to pin him down by citing the initial meeting in which Plame Wilson suggested Wilson for the mission (see February 13, 2002), Wilson notes, “[T]hat fact that my wife knows that I know a lot about the uranium business and that I know a lot about Niger and that she happens to be involved in weapons of mass destruction, it should come as no surprise to anyone that we know of each others activities.” Wilson says that the aims of the administration’s neoconservatives—to redraw “the political map of the Middle East,” is something that has not been debated by the nation. The US did not debate the war with Iraq “on the grounds of redrawing the map of the Middle East,” he notes.
Wilson Did Not Violate CIA Secrecy in Revealing Niger Mission - Gannon/Guckert asks if Wilson violated CIA secrecy in going public with the results of his Niger mission, as some on the right have asserted. Wilson reminds Gannon that his was not a clandestine trip, “not a CIA mission,” but an aboveboard fact-finding journey. Those circumstances were well understood by the CIA before he left for Niger.
Implications of French Complicity in Niger Allegations Debunked - Gannon/Guckert tries to insinuate that the French may have had something to do with keeping the alleged uranium sales secret, and Wilson quickly shoots that line of inquiry down, saying, “The fact that you don’t like the French or that the French seem to have favored a different approach on this is far different from the French violating UN Security Council resolutions of which they are signatories, and clandestinely transferring 500 tons of uranium to a rogue country like Iraq is a real reach.” He then describes just how impossible it would have been for the French to have facilitated such a secret uranium transfer even had it wished.
Refuses to Accuse Rove Directly - Wilson refuses to flatly name White House political strategist Karl Rove as the person behind the leaks of his wife’s clandestine identity, though he notes that Rove indeed labeled his wife “fair game” to the press (see July 21, 2003) and that Rove was in a perfect position to have orchestrated the leak. When Gannon/Guckert tells Wilson that conservative columnist Robert Novak, who first published Plame Wilson’s name and occupation, denies that the White House gave him the information on her identity, Wilson retorts, “Novak has changed his story so much that it’s hard for me to understand what he is talking about” (see September 29, 2003).
When a Leak Is Not a Leak - Gannon/Guckert brings up the allegation from New York Times columnist Nicholas Kristof that Plame Wilson was revealed as an undercover agent by Russian spy Aldrich Ames in 1994. Because Ames may have revealed Plame Wilson’s identity to the Russians, Gannon/Guckert asks, isn’t it possible that she was no longer an undercover agent? Wilson refuses to validate the Ames speculation, and finally says that the CIA would not be treating this so seriously if it were as frivolous an issue as Gannon/Guckert suggests. “[R]emember this is not a crime that has been committed against my wife or against me,” he says. “If there was a crime, it was committed against our country. The CIA has referred the matter to the Justice Department for further investigation, I don’t believe that’s a frivolous referral.” [Talon News, 10/28/2003]
Former senior Watergate counsel Samuel Dash (see March 25, 1973) writes that if Bush administration officials leaked the identity of covert CIA officer Valerie Plame Wilson to the press (see June 23, 2003, July 7, 2003, 8:30 a.m. July 8, 2003, July 8, 2003, 11:00 a.m. July 11, 2003, Late Afternoon, July 12, 2003, and Before July 14, 2003), “they may have committed an act of domestic terrorism as defined by the dragnet language of the Patriot Act their boss wanted so much to help him catch terrorists.” Dash notes that the Patriot Act defines domestic terrorism as “acts dangerous to human life that are a violation of the criminal laws of the United States or of any state” that “appear to be intended to intimidate or coerce a civilian population.” In Dash’s estimation, the Plame Wilson leak meets this criteria. It put Plame Wilson’s life at risk along with “her contacts abroad whom terrorists groups can now trace.” It is a clear violation of US criminal law. And its intent was to “intimidate or coerce a civilian population”—to intimidate Plame Wilson’s husband, former ambassador Joseph Wilson, into silence, along with “all critics of the administration” who now know “they too can be destroyed if they persist.” Dash notes that the Patriot Act “distorts the criminal law, and its dragnet provisions threaten the liberty of too many innocent people,” so such an accusation—the Bush administration committed an act of domestic terrorism—may be an overstatement of the realities of the case. However, Dash continues, interpreting the law is irrelevant. The administration’s actions under the existing law are the issue. Dash writes that the Justice Department faces a dilemma: “Can they treat this investigation differently from any other terrorist investigation? Under the Patriot Act, they have acquired expanded powers to wiretap and search. Will they place sweeping and roving wiretaps on White House aides? Will they engage in sneak, secret searches of their offices, computers, and homes? Will they arrest and detain incommunicado, without access to counsel, some White House aides as material witnesses?” The Justice Department will not do so, Dash writes, nor should they: “I hope they would not employ such police-state tactics. I had hoped they would not use them against ordinary American citizens, but the attorney general has done so, insisting he needs to use these powers to protect our safety. Then why are they not equally needed in a domestic terrorism investigation of White House aides?” Dash concludes that whether or not the leak “constitutes an act of domestic terrorism under the Patriot Act, it was certainly an outrageous betrayal of trust and an arrogant display of power by officials charged with protecting our national security and, on behalf of the president, assuring that the laws are faithfully executed.” [Newsday, 10/28/2003; Wilson, 2004, pp. 399-401]
During a Rose Garden press conference, President Bush is asked why he has not required White House staffers to sign affidavits denying their involvement in the Plame Wilson leak. The reporter asks: “You have said that you are eager to find out whether somebody in the White House leaked the identity of an undercover CIA agent. Many experts in such investigations say you can find if there was a leaker in the White House within hours if you asked all staff members to sign affidavits denying involvement. Why not take that step?” Bush responds: “[T]he best group of people to do that so that you believe the answer is the professionals at the Justice Department. And they’re moving forward with the investigation. It’s a criminal investigation. It is an important investigation. I’d like to know if somebody in my White House did leak sensitive information. As you know, I’ve been outspoken on leaks. And whether they happened in the White House, or happened in the administration, or happened on Capitol Hill, it is a—they can be very damaging. And so this investigation is ongoing and—by professionals who do this for a living, and I hope they—I’d like to know.” [White House, 10/28/2003]
The Office of Legal Counsel (OLC)‘s Nicholas Quinn Rosenkranz sends a classified memo to his boss, OLC chief Jack Goldsmith. The contents of the memo will remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo concerns the Geneva Conventions. [American Civil Liberties Union [PDF], 1/28/2009 ]
The head of the Justice Department’s Office of Legal Counsel (OLC), Jack Goldsmith, and OLC lawyer Robert Delahunty, send a classified memo to the Defense Department. The contents of the memo remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo concerns the Geneva Conventions as they apply to the treatment of detainees in US custody. Presumably, the memo is in reference to previous legal advice submitted to Goldsmith by an OLC attorney-adviser regarding Geneva (see October 31, 2003). [American Civil Liberties Union [PDF], 1/28/2009 ; ProPublica, 4/16/2009]
The new head of the Justice Department’s Office of Legal Counsel (OLC), Jack Goldsmith, begins an internal review of the legality of the NSA’s warrantless wiretapping program (see December 15, 2005). The program is kept so secret that only four Justice officials even have access to information about its inner workings, a pattern of poor consultation he will call “the biggest legal mess I have ever encountered” when he testifies to the Senate about the program four years later (see October 2, 2007). Neither Attorney General John Ashcroft nor Justice’s top legal counsel know much about the program. When Goldsmith begins his legal review, the White House initially refuses to brief Deputy Attorney General James Comey about it. Goldsmith later testifies that he cannot find “a legal basis for some aspects of the program.” Upon completing the review, Goldsmith declares the program illegal, with the support of Ashcroft and Comey. However, White House officials are irate at Goldsmith’s findings. [Washington Post, 10/20/2007]
Quiet opposition builds within the Justice Department against the White House’s attacks on civil liberties and governmental process in the name of national security. The opposition is led by James Comey, the deputy attorney general under John Ashcroft, and includes the chief of the Office of Legal Counsel, Jack Goldsmith, and other like-minded Justice Department lawyers and officials. Comey, Goldsmith, and many of their colleagues will resign from their posts, some perhaps pressured by the White House to get out without making a fuss (see June 17, 2004). Comey and Goldsmith are the point men of this opposition group, though they will speak little in public about their experiences until they testify before the Senate in 2007 (see May 15, 2007 and October 2, 2007).
Standing 'Up to the Hard-Liners' - Newsweek, one of the only mainstream media outlets to report on this “insurrection” at any length, will call it “one of the most significant and intriguing untold stories of the war on terror.” The magazine will report in 2006: “These Justice Department lawyers, backed by their intrepid boss Comey, had stood up to the hard-liners, centered in the office of the vice president, who wanted to give the president virtually unlimited powers in the war on terror. Demanding that the White House stop using what they saw as far-fetched rationales for riding rough-shod over the law and the Constitution, Goldsmith and the others fought to bring government spying and interrogation methods within the law.… These government attorneys did not always succeed, but their efforts went a long way toward vindicating the principle of a nation of laws and not men.” Comey, Goldsmith, and their colleagues do not oppose the war on terror in principle, and share the administration’s concerns about the restraints imposed on the government in compiling intelligence on suspected terrorists. Their opposition centers on the process used by the White House, which routinely ignores and runs over Congress, the judiciary, and the law in implementing its agenda.
White House Denial - The White House will continue to deny that this opposition group ever existed, with a spokeswoman for Vice President Dick Cheney saying in 2006: “The proposition of internal division in our fight against terrorism isn’t based in fact. This administration is united in its commitment to protect Americans, defeat terrorism and grow democracy.” [Newsweek, 2/6/2006]
US Attorney Paul Charlton of Arizona (see November 14, 2001) does well in his first Evaluation and Review Staff (EARS) evaluation by the Justice Department. His evaluation states in part that Charlton is “well respected by USAO [the US Attorney’s Office] staff, investigative and civil client agencies, [the] local law enforcement community, [the] Native American Nations, and [the] judiciary regarding his integrity, professionalism, and competence.” The only criticism of Charlton is a note that says his adherence to a chain of command structure in the office has “led to a perception by some that he is inaccessible” and “not open to suggestions or criticism.” [Iglesias and Seay, 5/2008, pp. 162; US Department of Justice, Office of the Inspector General, 9/29/2008] An earlier review of the EARS data from the Executive Office for US Attorneys noted that Charlton’s district scored “considerably higher” than the national average of US Attorneys’ offices in its cumulative scores. Charlton received praise for his work with the anti-terrorism task force and several areas where “best practices” for US Attorneys’ offices throughout the nation were noted. [US House of Representatives, Committee on the Judiciary, 5/21/2007]
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
Six lawyers and two analysts at the US Department of Justice (DOJ) conclude, in a classified memo, that the controversial Texas Congressional redistricting plan headed by Representative Tom DeLay (R-TX—see 2002-2004) is illegal. The memo states that the plan violates the Voting Rights Act (VRA—see August 6, 1965, 1970, 1975, April 22, 1980, and June 29, 1989) by illegally diluting African-American and Hispanic voting power in two Congressional districts. The plan also eliminated several other districts that contained substantial minority voting blocs. Texas Republicans knew the plan would likely be found to be discriminatory, the lawyers write in the memo. The memo says that the Texas legislature went ahead with the plan anyway because it would maximize the number of Republicans the state would send to Congress. The memo concludes, “The State of Texas has not met its burden in showing that the proposed Congressional redistricting plan does not have a discriminatory effect.” A concurring opinion written by one of the DOJ lawyers finds: “This result quite plainly indicates a reduction in minority voting strength. The state’s argument that it has increased minority voting strength… simply does not stand up under careful analysis.”
DeLay, Aide Ignored Concerns about Voting Rights Discrimination - One of the senior aides to DeLay, James W. Ellis, is cited in the memo as pushing for the plan despite fears that the DOJ would reject it. According to the memo, Ellis and other DeLay aides forced the adoption of the plan over two other versions adopted by the Texas Legislature that would not have raised as many concerns about voting rights discrimination. The memo quotes Ellis in an October 2003 memo writing: “We need our map, which has been researched and vetted for months. The pre-clearance and political risks are the delegation’s and we are willing to assume those risks, but only with our map.” Later testimony will show that DeLay and Ellis forced last-minute changes in the map; DeLay attended many of the meetings that produced the map, and Ellis worked through the state’s lieutenant governor and a state senator to shepherd the changes that he and DeLay desired. The final changes were not necessary, the memo finds, except to advance partisan political goals.
Findings Overruled - Regardless of the findings, the lawyers and analysts’ judgment is overruled by senior officials at the DOJ, all appointed by the Bush administration. The DOJ’s civil rights division will affirm the plan as legal and valid. The memo is kept secret for almost two years, and the lawyers and analysts involved in the case, including the authors of the memo, are bound to silence under an unusual gag rule. The DOJ is under no legal burden to accept the findings of the memo, but historically, such findings are given great weight in DOJ rulings. Former Justice Department lawyer Mark Posner later says that it is “highly unusual” for the DOJ to overrule a unanimous finding such as this one: “In this kind of situation, where everybody agrees at least on the staff level… that is a very, very strong case. The fact that everybody agreed that there were reductions in minority voting strength, and that they were significant, raises a lot of questions as to why it was” approved. [US Department of Justice, 12/12/2003 ; Washington Post, 12/2/2005] In December 2005, the Washington Post will reveal the existence of the memo (see December 2, 2005). Days after the Post article, Posner will write an article for the prestigious legal Web site FindLaw that will opine that the DOJ memo was ignored for partisan political reasons, and not because of honest differences of opinion between legal experts (see December 5, 2005).
The US Supreme Court agrees to hear Vice President Cheney’s appeal of a lower court ruling that found he must reveal documents pertaining to his 2001 energy task force (the National Energy Policy Development Group—see January 29, 2001 and May 16, 2001). Cheney lost the case, filed by the conservative government watchdog group Judicial Watch and the environmentalist organization the Sierra Club, in two lower courts, and has ramrodded the case into the Supreme Court with unusual alacrity—filing the Supreme Court appeal even before the appeals court had finished the case. Cheney’s lawyers from the Justice Department will argue that because of the Constitutional provision of separation of powers, the executive branch can and should keep all such information secret if it so chooses. Judicial Watch and the Sierra Club insist that because energy executives and lobbyists were involved in the task force policy deliberations, federal law mandates that lists of participants and details of the meetings should be made public. Over a year ago, District Court Judge Emmet Sullivan ruled that the White House should either turn over the documents or provide a detailed list of the documents it was withholding, and explain why. The White House has done neither, and instead appealed the decision. The US Court of Appeals refused to overturn Sullivan’s decision and ruled that Cheney had no legal standing to refuse the judicial order. Cheney disagreed, and appealed to the Supreme Court. The Court will hear arguments in the spring of 2004 (see April 27, 2004). Thousands of documents concerning the task force from the Department of Energy, the Environmental Protection Agency, and other federal agencies have already been turned over (see July 17, 2003), but no White House documents have been released. The Sierra Club has accused the Bush administration of trying to delay release of the information until after the November 2004 presidential elections. [Reuters, 12/15/2003]
Entity Tags: US Supreme Court, US Department of Justice, Sierra Club, Environmental Protection Agency, Emmet Sullivan, Bush administration (43), US Department of Energy, Judicial Watch, Richard (“Dick”) Cheney, National Energy Policy Development Group
Timeline Tags: US Environmental Record, Civil Liberties
Justice Department spokesman Mark Corallo says: “This country has become a battlefield, and [terrorists] will kill us anywhere they can. All you have to do is go to lower Manhattan and see the hole in the ground.” [Knight Ridder, 12/29/2003]
Patrick Fitzgerald. [Source: US Department of Justice]Citing potential conflicts of interest, Attorney General John Ashcroft formally recuses himself from any further involvement in the investigation of the Valerie Plame Wilson identity leak (see September 26, 2003 and September 30, 2003). The Justice Department names Patrick Fitzgerald, the US attorney for the Chicago region, to handle the investigation. In a letter to Fitzgerald authorizing the position, Deputy Attorney General James Comey writes: “I hereby delegate to you all the authority of the attorney general with respect to the department’s investigation into the alleged unauthorized disclosure of a CIA employee’s identity, and I direct you to exercise that authority as special counsel independent of the supervision or control of any officer of the department.” Many believe that Ashcroft’s continued involvement has become politically untenable, and that the investigation has reached a point where his potential conflicts of interest can no longer be ignored. The White House steadfastly denies that any of its officials leaked Plame Wilson’s name to conservative columnist Robert Novak, who first outed Plame Wilson in his column (see July 14, 2003), or any other member of the press. The FBI has already spoken to White House political adviser Karl Rove, suspected of being one of Novak’s sources; Rove has close political ties to Ashcroft. Upon Ashcroft’s recusal, the investigation was given over to Comey, who immediately named Fitzgerald to head the investigation. Fitzgerald and Comey, himself a former Manhattan prosecutor, are close friends and colleagues. [Office of the Deputy Attorney General, 12/30/2003 ; Associated Press, 12/30/2003; New York Times, 12/31/2003]
Appearance of Conflict of Interest - Comey tells the press: “The attorney general, in an abundance of caution, believed that his recusal was appropriate based on the totality of the circumstances and the facts and evidence developed at this stage of the investigation. I agree with that judgment. And I also agree that he made it at the appropriate time, the appropriate point in this investigation.” Comey says that while Ashcroft denies an actual conflict of interest exists, “The issue that he was concerned about was one of appearance.” White House officials say that President Bush had no role in the decision; some White House and law enforcement officials were surprised upon learning of Comey’s decision.
Investigation Reaching into White House? - Some Democrats believe that Ashcroft’s recusal is an indication that the investigation is moving into the White House itself. Senator Charles Schumer (D-NY) says of Comey’s decision, “This isn’t everything that I asked for, but it’s close.” In regards to Fitzgerald, Schumer says, “I would have preferred to have someone outside the government altogether, but given Fitzgerald’s reputation for integrity and ability—similar to Comey’s—the glass is three-quarters full.” Governor Howard Dean (D-VT), a leading Democratic contender for the presidency, says Ashcroft’s decision “is too little, too late.” For the last three months, the investigation has been run by John Dion, the Justice Department’s chief of counterespionage. Whether Fitzgerald will ask Dion or other Justice Department investigators to remain on the case remains to be seen. “I wouldn’t be surprised if he thought maybe he ought to keep some or all of the career folks involved,” says Comey. Fitzgerald has the authority to issue subpoenas and grant immunity on his own authority, Comey confirms. “I told him that my mandate to him was very simple. Follow the facts wherever they lead, and do the right thing at all times. And that’s something, if you know this guy, is not something I even needed to tell him.” [New York Times, 12/31/2003]
Fitzgerald's 'Impressive Reputation' - Fitzgerald has earned an “impressive reputation,” in Plame Wilson’s words, as a government prosecutor. In 1993, he won a guilty plea from Mafia capo John Gambino, and a conviction against Sheikh Omar Abdul-Rahman for his role in the 1993 World Trade Center bombing (see July 3, 1993). He put together the first criminal indictment against Osama bin Laden. In 2003 he indicted former Illinois Republican governor George Ryan on fraud and conspiracy charges; in 2005, he indicted several aides of Chicago Democratic mayor Richard Daley on mail fraud. He brought charges of criminal fraud against Canadian media tycoon Conrad Black. As Plame Wilson will write, “Fitzgerald was not easily intimidated by wealth, status, or threats.”
'Belated Christmas Present' - In 2007, Plame Wilson will write: “It was a belated but welcome Christmas present. Ashcroft had clearly given some thought to his extensive financial and personal ties to Karl Rove, who even then was believed to have had a significant role in the leak, and made the right decision.” She will also add that several years after the recusal, she hears secondhand from a friend of Ashcroft’s that Ashcroft was “troubled” and “lost sleep” over the administration’s action. [Wilson, 2007, pp. 174-175]
Entity Tags: Valerie Plame Wilson, Karl C. Rove, US Department of Justice, John Dion, Patrick J. Fitzgerald, James B. Comey Jr., Bush administration (43), Charles Schumer, Howard Dean, George W. Bush, John Ashcroft
Timeline Tags: Niger Uranium and Plame Outing
Though the issue of abuse of National Security Letters (NSLs) has become an issue of concern for many civil libertarians and constitutional scholars (see October 25, 2005 and January 2004), Congress fails to conduct any meaningful oversight on their use and abuse. Pat Roberts (R-KS), the chairman of the Senate Intelligence Committee, says that the use of NSLs by the FBI is perfectly legal, “non-intrusive,” and “crucial to tracking terrorist networks and detecting clandestine intelligence activities.” The FBI provides enough information to Congress in “semi-annual reports [that] provide the committee with the information necessary to conduct effective oversight,” he says. Roberts is referring to the Justice Department’s classified statistics, which have only been provided three times in four years, and give no specific information about the NSLs. The Justice Department has repeatedly refused requests by committee members for a sampling of actual NSLs, a description of their results, or an example of their contribution to a particular case. In 2004, the Senate asks the Attorney General to “include in his next semiannual report” a description of “the scope of such letters” and the “process and standards for approving” them. The Justice Department fails to do so, or even to reply to the request. Representative Zoe Lofgren (D-CA), a House Judiciary Committee member, says that congressional Democrats have little recourse: “The minority has no power to compel, and… Republicans are not going to push for oversight of the Republicans. That’s the story of this Congress.” The Justice Department notes that its inspector general, Glenn Fine, has not reported any abuses of the NSLs, but those reports beg the question: how can citizens protest searches of their personal records if they are never notified about such searches? Fine says, “To the extent that people do not know of anything happening to them, there is an issue about whether they can complain. So, I think that’s a legitimate question.” [Washington Post, 11/6/2005]
FISC Presiding Judge Colleen Kollar-Kotelly. [Source: Washington Post]James Baker, counsel for intelligence policy in the Justice Department’s Office of Intelligence Policy and Review (no relation to the former Secretary of State James A. Baker), informs the Foreign Intelligence Surveillance Court (FISC) that the government has, at least twice, improperly used excluded evidence from NSA domestic wiretaps to obtain warrants from FISC. Colleen Kollar-Kotelly, the senior FISC judge, is angered by this as both she and her predecessor, Royce Lambeth, have insisted that no evidence obtained from warrantless wiretaps can be used to obtain warrants for further surveillance from FISC. The Justice Department assured them that the administration would never attempt to secure warrants in such a manner. By using the excluded information, the Justice Department rendered useless the federal screening system put in place to keep such evidence from reaching FISC, which did not want to receive it due to the questionable legality of the domestic surveillance program (see December 15, 2005). Kollar-Kotelly’s complaint about the use of tainted evidence results in a brief suspension of the NSA wiretapping program. But the practice will continue (see 2005). [Washington Post, 2/9/2006]
An unidentified US telecommunications firm refuses to turn over its phone records to the government as part of a joint program by the NSA and the Drug Enforcement Agency to combat Latin American drug-trafficking that has been going on since the 1990s (see 1990s). The firm believes the administrative subpoenas issued for its information by the Justice Department are overly broad, and that it fears the public relations and legal backlashes it might suffer if the public were to learn of its cooperation. [New York Times, 12/16/2007]
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).
At the urging of US Attorney John McKay (see October 24, 2001), the Naval Criminal Investigative Service (NCIS) agrees to fund an information database system that will become known as the Northwest Law Enforcement Information Exchange (LInX). The database is intended to let local, state, and federal law enforcement agencies share information. McKay has the support of Deputy Attorney General James Comey, who has the power to direct Justice Department agencies to share their records with the project. When McKay explains the project to Comey, Comey envisions the project being used as part of the “OneDOJ” initiative to persuade Justice Department law enforcement agencies to share information with one another and with state and local law enforcement. Comey will call McKay a “visionary” concerning information sharing, and supports McKay’s efforts wholeheartedly. [US Department of Justice, Office of the Inspector General, 9/29/2008]
Jack Goldsmith, the embattled head of the Justice Department’s Office of Legal Counsel (OLC) (see October 6, 2003), finds himself again mired in a conflict with Vice President Dick Cheney’s hardline chief aide, David Addington. Goldsmith has already fought with Addington over Goldsmith’s decision to withdraw the OLC’s support for the administration’s memos justifying torture (see December 2003-June 2004). Now Goldsmith and Addington are at odds over the policies governing the detention and trial of suspected terrorists. The spark for this conflict is the January 2004 Supreme Court decision to review the detention of US citizen and suspected “enemy combatant” Yaser Esam Hamdi (see January 9, 2004). Goldsmith suggests going to Congress to have that body pass legislation declaring such detention legal, reasoning that the Supreme Court would be less likely to rule against the administration if Congress had authorized such detention policies. Addington, who like his boss does not accept the idea that Congress has any business interfering in such policy decisions, refuses to countenance the idea, and Goldsmith’s proposal goes nowhere. In June 2004, the Supreme Court approves the detention policies but put modest legal restrictions on the administration’s ability to detain citizens without trial. Goldsmith, this time with deputy solicitor general Paul Clement, again suggests going to Congress; once again, Addington refuses. The White House, Goldsmith later says, continues to operate as if it could avoid any adverse decisions from the Supreme Court. When the Court issues its decision in the Hamdan case (see November 8, 2004), rejecting the administration’s policy of trying terror suspects in military tribunals without Congressional approval, and upholding the preeminence of the Third Geneva Convention in protecting the rights of accused terror detainees—including al-Qaeda suspects—the decision has a shattering effect on the Bush administration’s legal arguments towards detaining and trying those suspects. Goldsmith believes the Court’s decision is “legally erroneous” but has huge political consequences. Now detainees at Guantanamo Bay have more legal rights than ever before, and for the first time, the specter of war-crimes charges against Bush officials becomes a real possibility. Goldsmith later says that it is in these arguments, more than in the battles over domestic wiretapping or interrogation techniques, that Addington’s attempts to expand presidential power actually backfires. Goldsmith is later vindicated when, in September 2006, one of the last acts of the Republican-led Congress will give the administration every power the administration had asked for, authorizing the military commissions that the Court had rejected. The Bush administration could have avoided a damaging Court decision by working with Congress beforehand. “I’m not a civil libertarian, and what I did wasn’t driven by concerns about civil liberties per se,” he says in a 2007 interview. “It was a disagreement about means, not ends, driven by a desire to make sure that the administration’s counterterrorism policies had a firm legal foundation.” [New York Times Magazine, 9/9/2007]
Federal investigators working with special counsel Patrick Fitzgerald in the Plame Wilson identity leak investigation (see December 30, 2003) will ask White House officials to sign waivers freeing journalists from any pledges of confidentiality they may have granted during discussions about CIA official Valerie Plame Wilson. A senior administration official says that a number of top aides to President Bush will be asked to sign a one-page form giving permission for journalists to describe any such conversations to investigators, even if the journalists promised not to reveal the source. Bush’s promises of full cooperation will put “tremendous pressure” on the aides to comply, the official says. However, some investigators believe that many journalists will not respect such “blanket waivers,” and will refuse to reveal sources regardless of whether the White House aides sign them or not. The form reads that it is the wish of the White House official that “no member of the media assert any privilege or refuse to answer any questions” about the leak, according to a copy of the form obtained by the press. One aide sent a copy of the form is White House political strategist Karl Rove. [Washington Post, 1/2/2004] By January 5, Bush has not publicly stated that White House officials should, or should not, sign the waivers, according to press secretary Scott McClellan, who directs journalists to steer questions about the forms to the Justice Department. One unnamed government official is more forthcoming, however, calling the forms a “quintessential cover-your-rear-end” move by investigators. “It provides political cover, because you can say you tried everything, and this is a very politically charged environment,” the official says. “There’s no other value to it.” [Washington Post, 1/6/2004]
A group of House Democrats led by Rush Holt (D-NJ) introduces a “resolution of inquiry” that asks the president, secretary of state, secretary of defense, and attorney general to give the House of Representatives all documents in their possession relating to the Plame Wilson identity leak. Holt and his fellow Democrats are asking for telephone and electronic mail records, logs and calendars, personnel records, and records of internal discussions from the period between May 6, 2003 and July 31, 2003. Holt, a member of the House Intelligence Committee, says in a statement: “Six months after a syndicated columnist disclosed the name of an undercover CIA operative, the White House
and the Department of Justice have yet to find and hold accountable the person or persons who revealed her identity. The Department of Justice investigation has the full support of Congress and should be vigorously pursued, but it is not enough.” [Reuters, 1/22/2004]
The federal grand jury investigating the leak of Valerie Plame Wilson’s covert CIA identity subpoenas a large amount of White House records, including Air Force One telephone logs from the week before Plame Wilson’s public outing (see July 14, 2003); records created in July 2003 by the White House Iraq Group (WHIG—see August 2002), a White House public relations group tasked with crafting a public relations strategy to market the Iraq war to the public; a transcript of press secretary Ari Fleischer’s press briefing in Nigeria currently missing from the White House’s Web site (see 3:20 a.m. July 12, 2003); a list of guests at former President Gerald Ford’s July 16, 2003 birthday reception; and records of Bush administration officials’ contacts with approximately 25 journalists and news media outlets. The journalists include Robert Novak, the columnist who outed Plame Wilson, Newsday reporters Knut Royce and Timothy Phelps (see July 21, 2003), five Washington Post reporters including Mike Allen and Dana Priest (see September 28, 2003 and October 12, 2003), Time magazine’s Michael Duffy (see 11:00 a.m. July 11, 2003), NBC’s Andrea Mitchell (see July 8, 2003 and October 3, 2003), MSNBC’s Chris Matthews (see July 21, 2003), and reporters from the New York Times, Wall Street Journal, and the Associated Press. The subpoenas will be accompanied by a January 26 memo from White House counsel Alberto Gonzales that will set a January 29 deadline for production of the subpoenaed documents and records. Gonzales will write that White House staffers will turn over records of any “contacts, attempted contacts, or discussion of contacts, with any members of the media concerning [former ambassador Joseph] Wilson, his trip, or his wife, including but not limited to the following media and media personnel.” White House spokeswoman Erin Healy later says, “The president has always said we would fully comply with the investigation, and the White House counsel’s office has directed the staff to fully comply.” White House press secretary Scott McClellan will say: “It’s just a matter of getting it all together.… At this point, we’re still in the process of complying fully with those requests. We have provided the Department of Justice investigators with much of the information and we’re continuing to provide them with additional information and comply fully with the request for information.” [US District Court for the District of Columbia, 1/22/2004; US District Court for the District of Columbia, 1/22/2004; Newsday, 3/5/2004; Washington Post, 3/6/2004]
Entity Tags: Chris Matthews, US Department of Justice, Bush administration (43), Valerie Plame Wilson, Wall Street Journal, White House Iraq Group, Ari Fleischer, Time magazine, Alberto R. Gonzales, Andrea Mitchell, Scott McClellan, Timothy Phelps, Newsday, Gerald Rudolph Ford, Jr, Erin Healy, Dana Priest, Knut Royce, Robert Novak, NBC News, Michael Duffy, Associated Press, New York Times, MSNBC, Mike Allen
Timeline Tags: Niger Uranium and Plame Outing
A group of 10 ex-CIA officials are working with members of Congress to push for a Congressional inquiry into the leak of CIA official Valerie Plame Wilson’s covert agency status. The former officials want to know if Plame Wilson’s exposure compromised US national security. Former CIA analyst Larry Johnson and nine other former CIA analysts and case officers send a letter to House Speaker Dennis Hastert (R-IL) and other senior Democrats and Republicans in the House of Representatives. The officers call on Congress to act “for the good of the country,” and say it is time to “send an unambiguous message that the intelligence officers tasked with collecting or analyzing intelligence must never be turned into political punching bags.” House Minority Leader Nancy Pelosi (D-CA) says she agrees with the thrust of the letter, and supports efforts by Representative Rush Holt (D-NJ) to force the House to open such a probe. Holt and other Democrats have introduced a resolution that, if approved, would request that the Bush administration forward all documents related to the Plame Wilson investigation to Congress. It is unlikely that House Republicans will allow the resolution to be brought to a vote. “The Department of Justice investigation has the full support of Congress and should be vigorously pursued, but it is not enough,” Holt says. [United Press International, 1/22/2004; Associated Press, 1/23/2004; Chicago Sun-Times, 1/23/2004]
Jack Goldsmith, the head of the Justice Department’s Office of Legal Counsel (see October 6, 2003), is astonished at the open contempt displayed by White House officials over dealing with Congress and the restraints imposed by the Foreign Intelligence Surveillance Act (FISA). Though Goldsmith agrees with the aims of the administration in battling terrorism, and agrees with the administration that FISA may present undue restraint on conducting terror investigations, he is shocked at the cavalier manner in which the administration ignores the law and the constitutional mandates for Congressional oversight. “We’re one bomb away from getting rid of that obnoxious [FISA] court,” White House aide David Addington tells Goldsmith. Addington, the chief aide to Vice President Dick Cheney, and other Bush officials treat FISA the same way they treated other laws they disdained, Goldsmith later recalls: “They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations,” he will write in his 2007 book “The Terror Presidency” (see September 9, 2007). [New York Times Magazine, 9/9/2007]
US Representative Darrell Issa (R-CA) requests information from the Justice Department about the arrest of an alleged illegal alien smuggler from US Attorney Carol Lam (see November 8, 2002), the federal prosecutor who works the Southern California district. Issa asks for information about Lam’s decision not to prosecute Antonio Amparo-Lopez, who was arrested on suspicion of “alien smuggling” over the US-Mexican border. [US Department of Justice, 3/23/2007 ] Issa was quoted in a December 2003 article in the Riverside, California, Press-Enterprise entitled “Border Agents Face Uphill Fight,” in which the Justice Department was criticized for not prosecuting immigrant smugglers frequently enough. Shortly thereafter, the same newspaper published an article detailing how one such smuggler, Amparo-Lopez, was arrested at a border checkpoint but was subsequently released. Lam will respond to Issa in mid-March, requesting that he direct his inquiries to the Justice Department in Washington. On May 24, Issa will receive a letter from Assistant Attorney General William Moschella, stating, “Based upon all of the facts and circumstances of his arrest, the United States Attorney’s Office declined to prosecute Mr. Amparo-Lopez.” [National Review, 3/28/2007]
Two FBI agents, Doug Miller and Mark Rossini, falsely claim they have no memory of the blocking of a key cable about 9/11 hijacker Khalid Almihdhar in an interview with the Justice Department’s office of inspector general. Miller drafted the cable, which was to inform the FBI that Almihdhar had a US visa, while he and Rossini were on loan to Alec Station, the CIA’s bin Laden unit. However, it was blocked by the unit’s deputy chief, Tom Wilshire, and another CIA officer known only as “Michael” (see 9:30 a.m. - 4:00 p.m. January 5, 2000). Miller and Rossini remember the events, but falsely tell the Justice Department inspector general they cannot recall them.
Pressure Not to Disclose Information - Sources close to the inspector general’s probe will say, “There was pressure on people not to disclose what really happened.” Rossini, in particular, is said to feel threatened that the CIA would have him prosecuted for violating the Intelligence Identities Protection Act if he said what really happened inside Alec Station. They are questioned at the same time, and together with a CIA officer who will be described as “sympathetic,” although it is unclear why. CIA officials are also in the room during the questioning, although it is unclear why this is allowed. When they are shown contemporary documents, according to the Congressional Quarterly, “the FBI agents suddenly couldn’t remember details about who said what, or who reported what, to whom, about the presence of two al-Qaeda agents in the US prior to the 9/11 attacks.” The inspector general investigators are suspicious. [Congressional Quarterly, 10/1/2008]
'They Asserted that They Recalled Nothing' - Nevertheless, neither Rossini nor Miller are severely criticized by the inspector general’s final report. It simply notes: “When we interviewed all of the individuals involved about the [cable] they asserted that they recalled nothing about it. [Miller] told the [inspector general] that he did not recall being aware of the information about Almihdhar, did not recall drafting the [cable], did not recall whether he drafted the [cable] on his own initiative or at the direction of his supervisor, and did not recall any discussions about the reasons for delaying completion and dissemination of the [cable]. [Rossini] said he did not recall reviewing any of the cable traffic or any information regarding Alhazmi and Almihdhar. Eric [a senior FBI agent on loan to Alec Station] told the [inspector general] that he did not recall the [cable].” [US Department of Justice, 11/2004, pp. 241, 355-357 ]
Later Admit What Really Happened - At some point, Miller and Rossini tell an internal FBI investigation what really happened, including Wilshire’s order to withhold the information from the FBI. However, very little is known about this probe (see After September 11, 2001). [Congressional Quarterly, 10/1/2008] Rossini will be interviewed for a 2006 book by Lawrence Wright and will recall some of the circumstances of the blocking of the cable, including that a CIA officer told Miller, “This is not a matter for the FBI.” [Wright, 2006, pp. 311, 423] Both Miller and Rossini will later talk to author James Bamford about the incident for a 2008 book. [Congressional Quarterly, 10/1/2008] The exact date of this interview of Miller and Rossini is unknown. However, an endnote to the 9/11 Commission Report will say that Miller is interviewed by the inspector general on February 12, 2004, so it may occur on this day. [9/11 Commission, 7/24/2004, pp. 502]
The FBI orders an internal review of its files to determine whether documents related to the 1995 Oklahoma City bombing case were improperly withheld from investigators or defense lawyers. Bombing conspirator Terry Nichols, already convicted on federal charges related to the case and serving a life sentence (see June 4, 1998), faces 161 counts of first-degree murder in an upcoming trial in McAlester, Oklahoma (see May 13, 2003). Recent press reports have raised new questions as to whether Nichols’s co-conspirator, bomber Timothy McVeigh (see 7:14 a.m. June 11, 2001), had more accomplices than just Nichols. An Associated Press report says that documents not introduced at McVeigh’s trial (see June 2, 1997) indicated that FBI agents had destroyed evidence and failed to share other information that indicated McVeigh was part of a larger group of white supremacists who may have helped him carry out the bombing (see (April 1) - April 18, 1995). McVeigh had murky ties with a group called the Aryan Republican Army (ARA—see 1992 - 1995 and November 1994) and perhaps took part in bank robberies the group carried out. Moreover, ARA members possessed explosive blasting caps similar to those McVeigh used in the bomb; additionally, a driver’s license in the name of an alias used by Roger Moore, a man robbed by Nichols as part of an attempt to finance the bombing (see November 5, 1994), was later found in the possession of ARA member Richard Guthrie. Law enforcement officials continue to insist that no evidence exists of any larger conspiracy involving anyone other than Nichols and McVeigh, and the FBI’s internal review is motivated by nothing more than “an abundance of caution.” A government official says: “If there’s information out there, that needs to be looked at. This will be a document review to ascertain whether there are documents that were relative to the investigation and that should have been reviewed during the investigation or the prosecution.” If additional records are identified, the Justice Department will determine whether records were improperly withheld from defense lawyers in the case, the official says. The FBI had to conduct a similar document review just days before McVeigh’s 2001 execution after the Justice Department disclosed that the bureau had not turned over thousands of pages of interview reports and other material to McVeigh’s lawyers (see May 10-11, 2001). [New York Times, 2/27/2004; New York Times, 3/16/2004] Also, former television reporter Jayna Davis says she has unearthed ties between McVeigh, Nichols, and Iraqi soldiers operating undercover in the US; Davis has said the FBI refused to act on her information, and has accused the agency of a cover-up (see March 20, 2001). Retired FBI agent David Cid, who worked on the original case, calls Davis’s allegations absurd. “What possible motive would we have to conceal a Middle Eastern link?” he asks. “That was our immediate first assumption anyway” (see 10:00 a.m. April 19, 1995 and After). The presiding judge in the case, District Court Judge Steven Taylor, will conduct a hearing after the FBI’s announcement, but Nichols’s trial will not be delayed. [New York Times, 2/29/2004]
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
US Attorney Paul Charlton of Arizona (see November 14, 2001) begins conferring with Justice Department officials over his idea to have federal law enforcement agents in his district tape-record interrogations of suspects. Charlton came up through the Arizona state criminal justice system, where tape-recording interrogations is routine, and he believes the practice helps prosecutors win cases. He believes the federal policy against tape-recording interrogations is causing his office to lose cases, and considers that policy antiquated and unresponsive to both crime victims and defendants. He discusses the issue with Deputy Attorney General James Comey during a closed session at a conference in San Diego. Days later, Comey’s chief of staff Chuck Rosenberg tells Charlton that the FBI opposes changing the policy. Charlton later says that that opposition is echoed by Johnny Sutton, who chairs the Attorney General’s Advisory Committee. Charlton continues to push the issue, and in May 2005 Comey establishes a working group, which includes Charlton, to formally consider the issue (see April 28, 2005). Charlton will recall that once Comey leaves the Justice Department and is succeeded by Paul McNulty, the issue no longer moves forward. In December 2005, the working group engages in an email discussion with McNulty’s chief of staff Michael Elston on the merits of the policy, but McNulty remains unconvinced. By the end of 2005, the working group has not reached a consensus. In February 2006, Charlton implements the policy in his district. He believes, he later says, that the fact that his office has federal jurisdiction over 21 Native American reservations in his district makes his situation unique. Tape-recording interrogations will help with the violent crime cases that take place on the reservations, but will not impact other districts because they do not have similar jurisdictions. He will also say that FBI agents have the option not to tape-record interrogations. He informs his office and all special agents in charge of federal agencies in his district of his decision. He does not discuss or seek the approval of senior Justice Department officials before implementing the policy. Charlton will say that most of the law enforcement agencies in Arizona are comfortable with the new policy, but the FBI and DEA complain to McNulty over the policy. McNulty will later recall speaking with FBI Director Robert Mueller, who complains that Charlton’s policy could impact criminal prosecutions in other districts that do not record interrogations. On March 1, McNulty tells Charlton to rescind the policy. Charlton refuses and tells Acting Principal Deputy Associate Attorney General William Mercer that he is willing to resign over the issue. McNulty asks Mercer to work with Charlton. Mercer persuades Charlton to design a pilot project for taping interrogations rather than offer his resignation, and promises that it will receive a positive review. Mercer also informs Charlton that McNulty is upset because Charlton did not clear the procedure with his office before implementing it. Charlton asks for something in writing from McNulty’s office confirming the pilot project, and receives an email from McNulty’s chief of staff Michael Elston that reads: “[McNulty] is very interested in having you submit a proposal to have a pilot program in your district. Such a proposal would receive expeditious consideration. [McNulty] understands this issue and is interested in energizing the department’s consideration of it. You are the best advocate for the proposed policy, and he hopes you will play a significant role in the department’s review and the interagency review process.” McNulty’s staff recommends that McNulty approve the program in August 2006, but McNulty takes no action on it, apparently ignoring repeated pressure from Charlton through Mercer. McNulty will later say he never supported the program, though apparently no one in his office informed Charlton of that fact. McNulty will also later say that he probably discussed the matter with Kyle Sampson, the chief of staff to Attorney General Alberto Gonzales, when discussions of firing US Attorneys came up. However, McNulty will say that he does not consider Charlton insubordinate, and does not view Charlton’s actions as constituting an offense requiring termination. [US Department of Justice, Office of the Inspector General, 9/29/2008]
The trial of Oklahoma City bombing conspirator Terry Nichols (see May 13, 2003) begins in McAlester, Oklahoma, with the trial judge, Steven Taylor, ruling that the trial will not be delayed because of allegations that the prosecution withheld documents from the defense (see February 27, 2004). Nichols faces 161 counts of first-degree murder, and could receive the death penalty if convicted. Taylor warns prosecutors that any withholding of evidence by prosecutors or the Justice Department would void the case entirely, saying: “There will not be a mistrial. There will be a dismissal, period.” Taylor says, “It would be irresponsible for this court to shut down this trial today based on speculation and guesswork what the FBI can come up with.” The defense intends to argue that Nichols was just one small cog in a much larger conspiracy involving convicted bomber Timothy McVeigh (see 7:14 a.m. June 11, 2001) and an undetermined number of unnamed accomplices, perhaps American white supremacists or Middle Eastern radicals; defense lawyer Barbara Bergman tries and fails for a delay, telling Taylor: “Everywhere we turn we are being stymied by the federal government, your honor. It’s outrageous. Why is the federal government so afraid?” Taylor says he will allow the defense considerable leeway in questioning government witnesses: “Some call a trial a search for truth. If the FBI thinks it important to search for truth while we’re conducting this trial, then they should cooperate with the search for truth in this courtroom.” The jury has not yet been seated, and lawyers will not give their opening arguments for at least a week. Brian T. Hermanson is Nichols’s lead lawyer; Lou Keel leads the prosecution. [New York Times, 3/2/2004; New York Times, 3/9/2004]
In an apparent act of political retaliation, Vice President Dick Cheney blocks the promotion of a Justice Department official who raised concerns about the legality of the Bush/NSA domestic wiretapping program (see Early 2002). Patrick Philbin, a senior Justice Department counsel, provided much of the research used by Deputy Attorney General James Comey in Comey’s own refusal to approve the wiretapping program (see March 9, 2004 and March 10-12, 2004). Former White House counsel Alberto Gonzales had replaced Ashcroft as attorney general when Philbin’s name came up for promotion. After Cheney warns Gonzales that he will oppose Philbin’s promotion, Gonzales decides not to promote Philbin to the position of deputy solicitor general. In May 2007, Comey will testify before Congress, “I understood that someone at the White House communicated to Attorney General Gonzales that the vice president would oppose the appointment if the attorney general pursued the matter. The attorney general chose not to pursue it.…It was my understanding that the vice president’s office blocked that appointment” (see May 15, 2007). Senate Judiciary Committee member Charles Schumer (D-NY) says in 2007 of Cheney’s opposition to Philbin’s promotion, and Cheney’s attempts to pressure Justice Department officials to back the wiretapping program, “…White House hands guided Justice Department business. The vice president’s fingerprints are all over the effort to strong-arm Justice on the NSA program.” [Associated Press, 6/7/2007] Comey will resign in 2005 and give a farewell speech in which he will say that some Justice Department officials paid a price for their commitment to doing what’s right. When asked in his 2007 testimony what he referred to, Comey will answer, “I had in mind one particular senior staffer of mine who had been in the hospital room with me and had been blocked from promotion, I believed as a result of this particular matter.” Comey is speaking of Philbin, who would have likely been promoted to solicitor general in Bush’s second term. Instead, Philbin resigns from the Justice Department and enters private practice. [National Public Radio, 5/15/2007]
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]
Vice President Dick Cheney gives the Congressional leaders known as the “Gang of Eight”—the House speaker and House minority leader, the Senate majority and minority leaders, and the ranking members of the House and Senate intelligence committees—their first briefing on the NSA’s warrantless wiretapping program (see Early 2002). The Democratic leaders at the meeting are House Minority Leader Nancy Pelosi (D-CA), Senate Minority Leader Tom Daschle (D-SD), House Intelligence Committee ranking member Jane Harman (D-CA), and Senate Intelligence Committee ranking member John D. Rockefeller (D-WV). Daschle (D-SD) later recalls the meeting as superficial. Cheney “talked like it was something routine,” Daschle will say. “We really had no idea what it was about.” Unbeknownst to many of the Congressional leaders, White House and Justice Department leaders are locked in a sharp dispute over whether or not the program is legal and should be continued; Cheney is preparing to send White House counsel Alberto Gonzales and chief of staff Andrew Card to Attorney General John Ashcroft’s hospital room to persuade the gravely ill, heavily sedated Ashcroft to overrule acting Attorney General James Comey and reauthorize the program (see March 10-12, 2004). The briefing is designed to give the appearance of Congressional approval for the program. While most Republicans in the briefing give at least tacit approval of the program, some Democrats, as Daschle will recall, expressed “a lot of concerns” over the program’s apparent violation of fundamental Congressional rights. Pelosi later recalls that she “made clear my disagreement with what the White House was asking.” But administration officials such as Gonzales will later say (see July 24, 2007) that the eight Congressional leaders are in “consensus” in supporting the program, a characterization that is patently false (see July 25, 2007). Gonzales will also later testify that today’s briefing does not cover the NSA wiretapping program, later dubbed the “Terrorist Surveillance Program” (TSP), another apparent falsehood contradicted by Democratic senators such as Rockefeller and Russ Feingold, as well as testimony and notes on the hospital room visit made by FBI Director Robert Mueller and a memo from John Negroponte, the director of national intelligence. Many feel that Gonzales is using the moniker “Terrorist Surveillance Program,” not in use until December 2005, to play what reporter Michael Isikoff calls “verbal parsing” and “a semantic game”—since the NSA wiretapping program is not known by this name at the time of the Congressional briefing, Gonzales will imply that the briefing wasn’t about that program. [Newsweek, 8/6/2007; Klein, 2009, pp. 88]
Cheney, Gonzales: Democrats on Board with Illegal Program - In Angler: The Cheney Vice Presidency, a 2008 book by Washington Post reporter Barton Gellman, Gonzales will claim there is a “consensus in the room” among Democrats and Republicans alike, and according to Gellman’s reporting on Gonzales, “four Democrats and four Republicans, duly informed that the Justice Department had ruled something unlawful, said the White House should do it anyway.” Cheney will confirm this allegation during a December 2008 appearance on Fox News. [Klein, 2009, pp. 88]
Domestic Surveillance Began before 9/11? - Cheney fails to inform the lawmakers that the wiretapping program may have begun well before the 9/11 attacks (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002).
Entity Tags: Richard (“Dick”) Cheney, National Security Agency, Robert S. Mueller III, Terrorist Surveillance Program, Tom Daschle, US Department of Justice, Russell D. Feingold, Nancy Pelosi, John Negroponte, John D. Rockefeller, Alberto R. Gonzales, Andrew Card, Michael Isikoff, Bush administration (43), Jane Harman, James B. Comey Jr., “Gang of Eight”, John Ashcroft
Timeline Tags: Civil Liberties
Michael Battle, the director of the Executive Office for US Attorneys, sends a memo to Kyle Sampson, counsel to Attorney General John Ashcroft, informing him that 16 US Attorneys’ offices are below standards—“underperforming”—in implementing Project Safe Neighborhoods (PSN), a Justice Department initiative to reduce gun violence and prosecute offenders who use guns in the commission of crimes. One of the US Attorneys cited is Carol Lam of the Southern District of California (see November 8, 2002). The memo notes that Lam’s office returned “only 17 firearms indictments” in 2003, and that her office’s PSN indictments and defendants “per criminal work years for FY 2003 is the lowest in the nation.” Subsequent Justice Department analyses of PSN performance continue to identify Lam’s district as needing improvement in firearms prosecutions. [US Department of Justice, Office of the Inspector General, 9/29/2008]
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
The head of the Justice Department’s Office of Legal Counsel (OLC), Jack Goldsmith, sends a classified memo to White House counsel Alberto Gonzales. The contents of the memo will remain secret, but the American Civil Liberties Union (ACLU) will learn that it clarifies the OLC’s advice on classified foreign intelligence activities. Goldsmith sends another classified memo on the same topic to Deputy Attorney General James Comey the next day, a followup memo to Comey three days later, and a followup to Gonzales the day after that. [American Civil Liberties Union [PDF], 1/28/2009 ]
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]
President Bush meets privately with acting Attorney General James Comey to discuss the Justice Department’s refusal to reauthorize the administration’s warrantless wiretapping program (see Late September, 2001). (Comey will later refuse to discuss the conversation during testimony before Congress.) After the meeting, Bush meets privately with FBI Director Robert Mueller, Comey’s partner in opposing the program (see March 10-12, 2004). After his meeting, Mueller tells Comey, “[W]e have the president’s direction to do what we believed, what the Justice Department believed was necessary to put this matter on a footing where we could certify its legality.” Author and reporter Charlie Savage will later write, “Comey, [Office of Legal Counsel chief Jack] Goldsmith, and their colleagues spent the next several weeks making a series of undisclosed changes to the warrantless surveillance program—during which time the original program continued to operate, even though the president had been told it was illegal.” Outside experts will later speculate that Comey and Goldsmith had constrained the program’s scope by imposing stricter controls on who can be monitored without a warrant. Some will decide that the program now monitors only communications specifically suspected to have a connection to al-Qaeda, not the more general “suspected terrorism” communications. They will also speculate that the authorization for the program now relies on Congress’s Authorization to Use Military Force (AUMF—see September 14-18, 2001), not the president’s inherent authority as commander in chief. But, Savage will write, the program still allows wiretapping without a judge’s approval, and therefore is still illegal. [Savage, 2007, pp. 188]
Jack Goldsmith, the head of the Justice Department’s Office of Legal Counsel, advises White House counsel Alberto Gonzales in a classified memo that several “classes” of people are not given “protected” status if captured as hostiles in Iraq. Those people include: US citizens, citizens of a state not bound by the Geneva Conventions, citizens of a “belligerent State,” and members of al-Qaeda who are not Iraqi citizens or permanent Iraqi residents. The memo will be made public on January 9, 2009. [US Department of Justice, 3/18/2004 ; American Civil Liberties Union [PDF], 1/28/2009 ]
Jack Goldsmith, the head of the Justice Department’s Office of Legal Counsel (OLC), sends a classified memo to a number of general counsels: the State Department’s William Howard Taft IV, the Defense Department’s William Haynes, the White House’s chief counsel for national security John Bellinger, the CIA’s Scott Muller, and the White House’s Alberto Gonzales. The memo is a draft opinion that concludes the US government can withdraw “protected persons” (a classification of the Geneva Conventions) who are illegal aliens from Iraq to other countries to facilitate interrogation—in other words, the US can subject them to rendition. Goldsmith says the US can also rendition so-called “protective persons” who have not been accused of a crime and who are not illegal aliens in Iraq, as long as the custody is for a brief period. [US Department of Justice, 3/19/2004 ; Cross, 2005; American Civil Liberties Union [PDF], 1/28/2009 ] The memo correlates with another Justice Department memo rejecting “protected person” status for some who are detained by US forces in Iraq (see March 18, 2004).
Deputy Attorney General James Comey sends a classified memo to Attorney General John Ashcroft. The contents of the memo are kept secret, but the American Civil Liberties Union (ACLU) will later learn that it is a briefing and summary of the Office of Legal Counsel (OLC)‘s preliminary conclusions regarding the Terrorist Surveillance Program (see March 2002). [American Civil Liberties Union [PDF], 1/28/2009 ]
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]
The Supreme Court hears oral arguments for and against the release of records pertaining to Vice President Cheney’s energy task force (the National Energy Policy Development Group—see May 16, 2001). The case is Cheney v. US District Court for the District of Columbia (03-0475) (see December 15, 2003). Two public interest groups, the environmentalist Sierra Club and the conservative government watchdog organization Judicial Watch, have joined to argue for the release of the records, saying that because the task force deliberations included energy industry executives and lobbyists, the task force is subject to the Federal Advisory Committee Act (FACA), which requires disclosure of the work of advisory groups that include non-federal employees. Bush administration lawyers, spearheaded by Solicitor General Theodore Olson, argue that releasing those records would violate the concept of “separation of powers.” The administration also argues that releasing the records, most pertinently the meetings between Cheney, his aides, and officials from energy corporations and lobbying firms, would damage the White House’s ability to receive candid advice. “This case is about the separation of powers and the president’s discretion to receive the opinions of subordinates,” Olson tells the court; Olson has resisted submitting task force documents even to the Court, saying that even that so-called “discovery” process would violate the Constitutional separation of powers. Lawyers for the Sierra Club and Judicial Watch argue that Cheney’s contacts with industry executives and lobbyists were improper while he was developing government policy that benefited their businesses. They are demanding to know whether energy lobbyists helped shape the government’s long-term energy policies. Lower courts agreed with Judicial Watch and the Sierra Club, and Cheney, with the Justice Department, has successfully ramrodded the case into the Supreme Court with unprecedented speed.
Justices Question Breadth of Requests - Justice Antonin Scalia, who refused to recuse himself from deliberations after accompanying Cheney on a duck-hunting trip in January, is one of the justices most favoring the government’s case. But even more moderate justices such as Stephen Breyer and Ruth Bader Ginsburg question whether the information request is too broad and inclusive. As for the White House, it argues that neither the courts nor Congress have any right to make any inquiries into the decisions of federal agencies and officials. Sierra Club lawyer David Bookbinder says the White House appears to have violated laws supporting open government: “What the panel said to energy executives was: Help us decide what the energy policy should be. A line has been crossed because the process should have been transparent. The panel was inordinately influenced by the energy industry.” Cheney has said that the executive branch must defend itself against the “continual encroachment by Congress.” The White House has already turned over some 40,000 documents from the task force after a lower court ruling compelled it to do so (see July 17, 2003), but the lawsuit before the Supreme Court says that another 100,000 potentially relevant documents and files remain secret. [MSNBC, 4/26/2004; New York Times, 4/28/2004; CNN, 6/24/2004]
Cheney 'Beyond the Reach of the Law?' - In a legal analysis of the case, former Nixon White House counsel John Dean calls the case “extraordinary,” and notes that Cheney “contends that he is, in essence, beyond the reach of the law. It began as a set of rather pedestrian discovery matters in two consolidated civil lawsuits. Now, however, because of Cheney’s stance, it could be a landmark Constitutional decision.” Dean sees the case as an opportunity for Cheney, with the assistance of Olson and Scalia, “to expand executive powers.” [FindLaw, 3/26/2004]
Case Sent Back to Lower Court - The Court will vote to send the case back to the District of Columbia Appeals Court for further adjudication (see June 24, 2004). That court will rule in Cheney’s favor (see May 10, 2005).
Entity Tags: Stephen Breyer, Sierra Club, US Department of Justice, Ruth Bader Ginsburg, Theodore (“Ted”) Olson, US Supreme Court, Richard (“Dick”) Cheney, Judicial Watch, Antonin Scalia, David Bookbinder, Bush administration (43), John Dean, Federal Advisory Committee Act, National Energy Policy Development Group
Timeline Tags: US Environmental Record, Civil Liberties
A Supreme Court Justice, during the oral arguments in the cases of Jose Padilla and Yaser Esam Hamdi, asks how the Court can be certain that government interrogators are not abusing detainees. Deputy Solicitor General Paul Clement answers that the court will have to “trust the executive to make the kind of quintessential military judgments that are involved in things like that.” [First, 6/2004 ] The government’s legal strategy is so inflexible in part because of Vice President Cheney, who through his lawyer David Addington refuses to allow the Justice Department to budge from its intransigent position. For months, Solicitor General Theodore Olson and his deputy, Clement, have pled for modest shifts in policy that would bolster their arguments in court. Hamdi has languished in a Navy brig for two and a half years without a hearing or a lawyer. British citizen Shafiq Rasul has been held under similar conditions at Guantanamo for even longer (see November 28, 2001 and January 11, 2002-April 30, 2002). Olson says that Cheney’s position—the president has unlimited authority to order the indefinite detention of anyone suspected of terrorist activity without benefit of counsel or any judiciary intervention—would be easier to argue in court if he could “show them that you at least have some system of due process in place” to ensure against wrongful detention, according to a senior Justice Department official familiar with the issue. But Addington wins the argument, overriding Olson and the Justice Department by his arguments that any such retreat would restrict the freedom of future presidents and open the door to further lawsuits. The Supreme Court will find against Cheney in both the Hamdi (see June 28, 2004) and Rasul (see June 28, 2004) cases. Olson will resign as solicitor general 11 days later. [Washington Post, 6/25/2007]
Attorney Brandon Mayfield [Source: MSNBC]Attorney Brandon Mayfield of Portland, Oregon, is taken into custody by the FBI in connection with the March 11 bomb attacks in Madrid (see 7:37-7:42 a.m., March 11, 2004). His detention is based on information from Spanish authorities that he had some involvement in the train bombings that killed 191 people and wounded more than 1,800. FBI sources say Mayfield’s fingerprints were found on a plastic bag with bomb-related material that is being considered as evidence in the train bombing. Sources say he had been under constant surveillance. Mayfield is an Islamic convert. [CNN, 5/7/2004] He is jailed for 14 days as a material witness to a terrorism investigation. The status of “material witness” means that he can be held without charge. The FBI affidavit that led to his arrest claims the fingerprint to be a “100 percent positive” match to the print on the bag. Officials say it is an “absolutely incontrovertible match.” However, Spanish authorities express their doubts about US claims and announce in late May that they have matched the fingerprint to an Algerian, Ouhnane Daoud. Flaws in the US investigation rapidly become apparent. The FBI did not examine the original fingerprint evidence until after the Spanish announcement. Four FBI examiners “concurred that the latent fingerprint had multiple separations; that it was divided by many lines of demarcation possibly caused by creases in the underlying material, multiple touches by one or more fingers, or both,” according to court records. The examiners conclude that the digital copy the FBI was working from was “of no value for identification purposes.” The FBI comes under heavy media criticism for its material witness detainment policy and its use of scant and/or secret evidence. The competence of the investigators is called into question due to the lack of attention paid to the concerns of the Spanish investigators. [Portland Tribune, 5/28/2004] Mayfield is never charged, and the Justice Department later issues a formal apology for the intense and invasive investigation, as well as a $2 million settlement. In an unprecedented element of the settlement, the FBI agrees to destroy communication intercepts from the investigation. Mayfield contends that he was a victim of profiling and strongly criticizes the investigation. He says “I, myself, have dark memories of stifling paranoia, of being monitored, followed, watched, tracked. I’ve been surveilled, followed, targeted primarily because I’ve been an outspoken critic of this administration and doing my job to defend others who can’t defend themselves, to give them their day in court, and mostly for being a Muslim.” [CNN, 11/30/2006] The official apology mentions that, “The FBI has implemented a number of measures in an effort to ensure that what happened to Mr. Mayfield and the Mayfield family does not happen again.” [Washington Post, 11/29/2006]
The CIA’s inspector general completes a lengthy, secret report on the interrogation of detainees in US custody. The report, based on over 100 interviews, a review of the CIA’s videotapes of interrogations (see November 2005), and some 38,000 pages of documents, will remain secret throughout the Bush administration and into the first year of the Obama administration. Some portions will be made public over the years. The report includes evidence that US interrogators used harsh tactics—torture—against detainees who were not withholding information. Officials familiar with the report will say that it concludes some of the techniques used violate the UN Convention against Torture (see October 21, 1994). According to a declassified summary of the report later made public, the report finds that “it is difficult to determine conclusively whether interrogations have provided information critical to interdicting specific imminent attacks.” The threat of such an imminent attack was cited by the Justice Department in its numerous authorizations of torture. The report prompts CIA general counsel John Rizzo to request new statements from the Justice Department confirming the legality of CIA interrogation methods (see May 10, 2005 and May 30, 2005). [Washington Post, 5/9/2009]
The CIA’s inspector general, John Helgerson, releases a highly classified report from his office that examines allegations of torture from the time period between September 2001 (after the 9/11 attacks, when the CIA first began detaining suspected terrorists and informants) and October 2003. In the report, Helgerson warns that some aggressive interrogation techniques approved for use by the CIA since early 2002 (see Mid-March 2002) might violate some provisions of the international Convention Against Torture (see October 21, 1994). The report doubts the Bush administration position that the techniques do not violate the treaty because the interrogations take place overseas on non-US citizens. It will be released, in heavily redacted form, to the public in August 2009 (see August 24, 2009). From what becomes known of the report’s contents, the CIA engaged in a number of illegal and ethically questionable tactics on the part of its interrogators. Some of these tactics include the use of handguns, power drills, threats, smoke, and mock executions. Many of the techniques used against detainees were carried out without authorization from higher officials. The report says that the CIA’s efforts to provide “systematic, clear, and timely guidance” to interrogators were “inadequate at first” and that that failure largely coincided with the most significant incidents involving the unauthorized coercion of detainees, but as guidelines from the Justice Department accumulated over several years, oversight “improved considerably.” The report does not conclude that the techniques reviewed constitute torture, but it does find that they appear to constitute cruel, inhuman, and degrading treatment under the Convention. [Central Intelligence Agency, 5/7/2004 ; New York Times, 11/9/2005; MSNBC, 8/24/2009; Washington Post, 8/24/2009]
Physical Abuse - The report defines torture as an act “intended to inflict severe physical or mental pain and suffering.” It then begins detailing such acts. Incidents of physical abuse include:
One incident caused the death of an Afghani detainee. According to the report: “An agency independent contractor who was a paramilitary officer is alleged to have severely beaten the detainee with a large metal flashlight and kicked him during interrogation sessions. The detainee died in custody.” [Central Intelligence Agency, 5/7/2004 ; New York Times, 8/24/2009; Washington Post, 8/24/2009; MSNBC, 8/25/2009] In a 2009 statement, Helgerson will write: “In one extreme case, improvisation took a disastrous turn when an agency contractor in rural Afghanistan—acting wholly outside the approved program and with no authorization or training—took it upon himself to interrogate a detainee. This officer beat the detainee and caused his death. Following an investigation of the incident, this contract employee was convicted of assault and is now in prison.” [Central Intelligence Agency, 5/7/2004 ; Washington Post, 8/24/2009]
Waterboarding was routinely used, in a manner far exceeding previously issued guidelines. Interrogators “continuously applied large volumes of water,” and later explained that they needed to make the experience “more poignant and convincing.” The CIA interrogators’ waterboarding technique was far more aggressive than anything used in military survival training such as the SERE program (see December 2001). Eventually, the agency’s Office of Medical Services criticized the waterboarding technique, saying that the “frequency and intensity” with which it was used could not be certified as “efficacious or medically safe.” [Central Intelligence Agency, 5/7/2004 ; New York Times, 8/24/2009; Washington Post, 8/24/2009] The report refers in particular to the treatment of 9/11 mastermind Khalid Shaikh Mohammed (KSM), who was reportedly waterboarded more than once (see Shortly After February 29 or March 1, 2003). Waterboarding is considered torture and is illegal in the US. The report also raises concern that the use of these techniques could eventually cause legal troubles for the CIA officers who used them. [New York Times, 11/9/2005]
Helgerson will write: “We found that waterboarding had been utilized in a manner that was inconsistent with the understanding between CIA and the Department of Justice. The department had provided the agency a written legal opinion based on an agency assurance that although some techniques would be used more than once, repetition would ‘not be substantial.’ My view was that, whatever methodology was used to count applications of the waterboard, the very large number of applications to which some detainees were subjected led to the inescapable conclusion that the agency was abusing this technique.” [Central Intelligence Agency, 5/7/2004 ; Washington Post, 8/24/2009]
In July 2002, a CIA officer used a “pressure point” technique “with both of his hands on the detainee’s neck, the officer manipulated his finger to restrict the detainee’s carotid artery.” The carotid artery supplies the brain with oxygenated blood; such “manipulat[ion]” could lead to unconsciousness or even death. A second officer “reportedly watched his eyes to the point that the detainee would nod and start to pass out. Then the officer shook the detainee to wake him. This process was repeated for a total of three applications on the detainee.”
A technique routinely used by CIA interrogators was the “hard takedown,” which involves an interrogator grabbing a detainee and slamming him to the floor before having the detainee moved to a sleep-deprivation cell. One detainee was hauled off his feet by his arms while they were bound behind his back with a belt, causing him severe pain.
Another routinely used technique is “water dousing,” apparently a variant of waterboarding, in which a detainee is laid on a plastic sheet and subjected to having water sluiced over him for 10 to 15 minutes. The report says that at least one interrogator believed the technique to be useful, and sent a cable back to CIA headquarters requesting guidelines. A return cable explained that a detainee “must be placed on a towel or sheet, may not be placed naked on the bare cement floor, and the air temperature must exceed 65 degrees if the detainee will not be dried immediately.”
- - Detainee Abd al-Rahim al-Nashiri, suspected of plotting the 2000 bombing of the USS Cole (see October 12, 2000), was repeatedly “bathed” with hard-bristled scrub brushes in order to inflict pain. The brushes caused abrasions and bleeding. [Central Intelligence Agency, 5/7/2004 ; New York Times, 8/24/2009; Washington Post, 8/24/2009; MSNBC, 8/25/2009]
Helgerson will write: “Agency officers who were authorized to detain and interrogate terrorists sometimes failed in their responsibilities. In a few cases, agency officers used unauthorized, threatening interrogation techniques. The primary, common problem was that management controls and operational procedures were not in place to avoid the serious problems that arose, jeopardizing agency employees and detainees alike.” [Central Intelligence Agency, 5/7/2004 ; Washington Post, 8/24/2009]
Mental Abuse - Numerous instances of mental and emotional abuse were also documented.
In 2002, interrogators staged a mock execution to intimidate a detainee. CIA officers began screaming outside the room where the detainee was being interrogated. When leaving the room, he “passed a guard who was dressed as a hooded detainee, lying motionless on the ground, and made to appear as if he had been shot to death.” The report says that after witnessing this performance, the detainee “sang like a bird.”
Handguns and power drills were used to threaten detainees with severe bodily harm or death. One such instance involved al-Nashiri. An American, whose name is not released but who is identified as not being a trained interrogator and lacking authorization to use “enhanced methods,” used a gun and a power drill to frighten him. The American pointed the gun at al-Nashiri’s head and “racked” a round in the chamber. The American also held a power drill near al-Nashiri and revved it, while al-Nashiri stood naked and hooded. [Central Intelligence Agency, 5/7/2004 ; New York Times, 8/24/2009; MSNBC, 8/24/2009; MSNBC, 8/25/2009]
In 2009, reporter David Ignatius will say he finds the “image of a CIA interrogator standing with a power drill next to somebody he’s interrogating… particularly horrific, because that’s a technique that’s been used in torturing people in Iraq.” [PBS, 8/24/2009]
A CIA interrogator told al-Nashiri that if he did not cooperate with his captors, “we could get your mother in here” and “we can bring your family in here.” The report says that the interrogator wanted al-Nashiri to infer for “psychological” reasons that his female relatives might be sexually abused. The interrogator has denied actually threatening to sexually abuse al-Nashiri’s mother or other relatives.
An interrogator threatened the lives of one detainee’s children. According to the report, an “interrogator said to Khalid Shaikh Mohammed that if anything else happens in the United States, quote, ‘we’re going to kill your children.’” According to the report, the debriefer was trying to exploit a belief in the Middle East that interrogation techniques included sexually abusing female relatives in front of the detainees. It was during these same interrogation sessions that Mohammed was waterboarded 183 times in a single month (see April 16, 2009). [Central Intelligence Agency, 5/7/2004 ; New York Times, 8/24/2009; MSNBC, 8/24/2009; MSNBC, 8/25/2009]
Fear of Recriminations - According to the report, there was concern throughout the agency over the potential legal consequences for agency officers. Officers “expressed unsolicited concern about the possibility of recrimination or legal action” and said “they feared that the agency would not stand behind them,” according to the report. [Central Intelligence Agency, 5/7/2004 ; New York Times, 8/24/2009] According to the report, CIA personnel “are concerned that public revelation” of the program will “seriously damage” personal reputations as well as “the reputation and effectiveness of the agency itself.” One officer is quoted as saying he could imagine CIA agents ending up before the World Court on war crimes charges. “Ten years from now, we’re going to be sorry we’re doing this,” another officer said. But “it has to be done.” [Central Intelligence Agency, 5/7/2004 ; Washington Post, 8/24/2009] Helgerson will write: “This review of the agency’s early detention and interrogation activities was undertaken in part because of expressions of concern by agency employees that the actions in which they were involved, or of which they were aware, would be determined by judicial authorities in the US or abroad to be illegal. Many expressed to me personally their feelings that what the agency was doing was fundamentally inconsistent with long established US government policy and with American values, and was based on strained legal reasoning. We reported these concerns.” [Central Intelligence Agency, 5/7/2004 ; Washington Post, 8/24/2009]
Recommendations - The report lists 10 recommendations for changes in the treatment of detainees, but it will not be reported what these are. Eight of the recommendations are apparently later adopted. Former CIA assistant general counsel John Radsan will later comment, “The ambiguity in the law must cause nightmares for intelligence officers who are engaged in aggressive interrogations of al-Qaeda suspects and other terrorism suspects.” [New York Times, 11/9/2005]
Approval, Contradictory Statements by Attorney General - The report says that Attorney General John Ashcroft approved all of these actions: “According to the CIA general counsel, the attorney general acknowledged he is fully aware of the repetitive use of the waterboard and that CIA is well within the scope of the DOJ opinion that the authority given to CIA by that opinion. The attorney general was informed the waterboard had been used 119 times on a single individual.” In 2009, reporter Michael Isikoff will say that the contents of the report “conflict… with the public statements that have been made over the years by Bush administration officials and CIA directors.” In 2007, then-CIA Director Michael Hayden will tell the Council on Foreign Relations that the agency’s detention and interrogation program was “very carefully controlled and lawfully conducted—has been carefully controlled and lawfully conducted.” Isikoff will say, “It’s kind of hard to square that with… what was in the CIA inspector general report that had been presented five years ago in 2004.” [Central Intelligence Agency, 5/7/2004 ; MSNBC, 8/25/2009]
Questions of Effectiveness - The report does document that some interrogations obtained critical information to identify terrorists and stop potential plots, and finds that some imprisoned terrorists provided more information after being exposed to brutal treatment (see August 24, 2009). It finds that “there is no doubt” that the detention and interrogation program itself prevented further terrorist activity, provided information that led to the apprehension of other terrorists, warned authorities of future plots, and helped analysts complete an intelligence picture for senior policymakers and military leaders. But whether the harsh techniques were effective in this regard “is a more subjective process and not without some concern,” the report continues. It specifically addresses waterboarding as an illegal tactic that is not shown to have provided useful information. “This review identified concerns about the use of the waterboard, specifically whether the risks of its use were justified by the results, whether it has been unnecessarily used in some instances,” the report reads, and notes that in many instances, the frequency and volume of water poured over prisoners’ mouths and noses may have exceeded the Justice Department’s legal authorization. In the instance of detainee Abu Zubaida, the report finds, “It is not possible to say definitively that the waterboard is the reason for Abu [Zubaida]‘s increased production [of intelligence information], or if another factor, such as the length of detention, was the catalyst.” In 2009, Isikoff will note that the effectiveness of torture is not clarified by the report. “As you know, Vice President [Dick] Cheney and others who had defended this program have insisted time and again that valuable intelligence was gotten out of this program. You could read passages of this report and conclude that that is the case, that they did get—some passages say important intelligence was gotten. But then others are far more nuanced and measured, saying we don’t really know the full story, whether alternative techniques could have been used.” [Central Intelligence Agency, 5/7/2004 ; New York Times, 8/24/2009; MSNBC, 8/24/2009; Washington Post, 8/24/2009; MSNBC, 8/25/2009]
Cheney Blocked Report's Completion - Reporter Jane Mayer later learns that Cheney intervened to block Helgerson from completing his investigation. Mayer will write that as early as 2004, “the vice president’s office was fully aware that there were allegations of serious wrongdoing in the [interrogation] program.” Helgerson met repeatedly and privately with Cheney before, in Mayer’s words, the investigation was “stopped in its tracks.” She will call the meetings “highly unusual.” In October 2007, CIA Director Michael Hayden will order an investigation of Helgerson’s office, alleging that Helgerson was on “a crusade against those who have participated in controversial detention programs.” [Public Record, 3/6/2009]
Entity Tags: Office of Medical Services (CIA), International Criminal Court, Jane Mayer, John Helgerson, David Ignatius, John Radsan, John Ashcroft, Convention Against Torture, Abu Zubaida, Bush administration (43), US Department of Justice, Richard (“Dick”) Cheney, Central Intelligence Agency, Michael Hayden, Abd al-Rahim al-Nashiri, Khalid Shaikh Mohammed, Michael Isikoff
Timeline Tags: Torture of US Captives, Complete 911 Timeline
Vice President Dick Cheney is interviewed in his office by federal prosecutors as part of the Valerie Plame Wilson identity leak investigation (see December 30, 2003). Cheney is asked if he knows who, if anyone, in the White House might have leaked Plame Wilson’s identity to the press. He is asked about conversations with his senior aides, including his chief of staff, Lewis “Scooter” Libby. He is also asked whether he knows of any concerted effort by White House officials to leak Plame Wilson’s identity. Cheney is not questioned under oath, and has not been asked to testify before the grand jury. He is represented by two lawyers, Terrence O’Donnell and Emmet Flood. [Federal Bureau of Investigation, 5/8/2004 ; New York Times, 6/5/2004]
Cheney Evades, Refuses to Answer Questions - In October 2009, an FBI interview summary regarding Cheney’s testimony will be released (see October 1, 2009). According to the document, Cheney equivocates or refuses to answer 72 times during his interview, either saying he cannot be certain about the information requested, or that he does not know.
Denies Informing Libby about Plame Wilson's CIA Status - One of the most fundamental questions Cheney is asked is about how Libby learned about Plame Wilson’s identity. Libby’s own notes indicate that he learned it from Cheney, and that he had shared his notes with Cheney in late 2003 (see Late September or Early October, 2003), in defiance of instructions from the FBI and the White House counsel’s office not to share information with colleagues (see September 29-30, 2003). But in his testimony, Cheney “cannot recall Scooter Libby telling him how he first heard of Valerie Wilson. It is possible Libby may have learned about Valerie Wilson’s employment from the vice president… but the vice president has no specific recollection of such a conversation.” [Federal Bureau of Investigation, 5/8/2004 ; Associated Press, 11/2/2009] Cheney testifies that contrary to the evidence, he learned of Plame Wilson’s CIA status from Libby, who informed him that a number of reporters had contacted Libby in July 2003 to say that Plame Wilson had been responsible for arranging her husband’s trip to Niger to investigate the Niger uranium claims. Cheney says that the next time he heard about Plame Wilson and her connection to her husband was when he read Robert Novak’s article outing her as a CIA officer (see July 14, 2003). Cheney is lying; he informed Libby of Plame Wilson’s identity (see (June 12, 2003)).
Denies Knowledge of Wilson Trip to Niger - He also denies knowing that Plame Wilson’s husband, war critic and former ambassador Joseph Wilson, was sent to Niger to investigate claims that Iraq was attempting to buy uranium from that country (see (February 13, 2002) and February 21, 2002-March 4, 2002), and says the CIA never briefed him about Wilson’s trip (see March 5, 2002). Future testimony will challenge Cheney’s claims, as witnesses will testify that Cheney, Libby, Deputy National Security Adviser Stephen Hadley, the Defense Department, the State Department, the Defense Intelligence Agency, the Joint Chiefs of Staff, the National Security Council, and President Bush were all given copies of a CIA cable sent to Cheney’s office that debunked the Niger claims (see December 2001, Shortly after February 12, 2002, March 5, 2002, February 12, 2002, March 8, 2002, October 15, 2002, Mid-October 2002, October 18, 2002, January 2003, and March 8, 2003). [Federal Bureau of Investigation, 5/8/2004 ; Truthout (.org), 2/15/2006]
Refuses to Answer about WMD NIE - Prosecutor Patrick Fitzgerald, leading the interview, presses Cheney to discuss evidence that shows he pressured Bush to quickly declassify portions of the October 2002 National Intelligence Estimate on Iraqi WMD (see October 1, 2002) for the purpose of making the case for invading Iraq. Libby provided selected NIE information to New York Times reporter Judith Miller while simultaneously leaking Plame Wilson’s identity to her (see June 23, 2003, 8:30 a.m. July 8, 2003, and Late Afternoon, July 12, 2003) and other reporters. Cheney refuses to confirm that he discussed anything regarding the NIE with Bush, saying that he could not comment on any private or privileged conversations he may have had with the president. Libby has already testified to the declassification of the NIE, telling prosecutors that he talked to Miller following the “president’s approval relayed to me through the vice president.”
Insists Plame Wilson's Identity Never Used to Discredit Husband - Cheney insists that no one in the White House ever talked about leaking Plame Wilson’s CIA status to the press in an attempt to discredit her husband. There was never any discussion, Cheney says, of “pushing back” on Wilson’s credibility by raising the issue of nepotism, the fact that his wife worked for the CIA, the same agency that dispatched him to Niger to run down the report of an agreement to supply uranium to Iraq. In his own testimony, Libby was far less emphatic, saying “[i]t’s possible” he may have discussed the idea with Cheney. Both men lie in their testimony (see March 9, 2003 and After, May 2003, June 3, 2003, June 9, 2003, June 11 or 12, 2003, (June 11, 2003), 12:00 p.m. June 11, 2003, 2:00 p.m. June 11, 2003, 5:27 p.m. June 11, 2003, (June 12, 2003), June 19 or 20, 2003, July 7, 2003 or Shortly After, July 7-8, 2003, 12:00 p.m. July 7, 2003, July 8, 2003, and 7:35 a.m. July 8, 2003). [Federal Bureau of Investigation, 5/8/2004 ; Associated Press, 11/2/2009] Cheney tells prosecutors that he and his office were merely interested in rebutting Wilson’s criticisms of the war effort, and wanted to dispel the notion among some reporters that he had selected Wilson for the Niger trip. In 2006, an attorney close to the case will say: “In his testimony the vice president said that his staff referred media calls about Wilson to the White House press office. He said that was the appropriate venue for responding to statements by Mr. Wilson that he believed were wrong.” [Federal Bureau of Investigation, 5/8/2004 ; Truthout (.org), 2/15/2006] In June 2009, the Department of Justice will reveal that Cheney and Bush had discussed the leak in a “confidential conversation” and “an apparent communication between the vice president and the president.” [Truthout (.org), 7/7/2009]
Entity Tags: Terrence O’Donnell, US Department of State, Valerie Plame Wilson, Stephen J. Hadley, US Department of Defense, Robert Novak, Lewis (“Scooter”) Libby, Patrick J. Fitzgerald, Emmet Flood, Defense Intelligence Agency, Bush administration (43), Federal Bureau of Investigation, George W. Bush, Joint Chiefs of Staff, National Security Council, Judith Miller, Joseph C. Wilson, Richard (“Dick”) Cheney, US Department of Justice
Timeline Tags: Niger Uranium and Plame Outing
In a secret agreement with the White House, the 9/11 Commission obtains the right to question at least two top al-Qaeda leaders in US custody. The two men are believed to be Khalid Shaikh Mohammed and Ramzi bin al-Shibh, two accused masterminds of the 2001 attacks. [Baltimore Sun, 5/12/2004] The results of the commission’s questioning of these suspects are published in a 9/11 Staff Statement released in June 2004. [9/11 Commission, 6/16/2004] However, in an ironic twist, during a 9/11-related lawsuit hearing held in June, US authorities refuse to acknowledge whether or not they have Khalid Shaikh Mohammed in custody. [Associated Press, 4/23/2004; Associated Press, 6/15/2004] Insurance companies representing 9/11 victims had requested that the US Justice Department serve a summons against Khalid Shaikh Mohammed, but a judge rules that the US government does not have to disclose whether it is holding alleged terrorists in custody. [Associated Press, 4/23/2004; Associated Press, 6/15/2004]
The New York Times learns that FBI Director Robert Mueller has ordered FBI interrogators to stay out of CIA-led interrogations of suspected al-Qaeda members. Mueller, and many FBI officials, believe the CIA’s interrogation tactics are too brutal and violate domestic and international laws. Mueller and other FBI officials have objected to the use of techniques such as waterboarding, as well as forced starvation, forced drugging, and beatings. FBI officials told Mueller that the techniques would be prohibited in criminal cases. Some CIA officers are worried that public outrage over the recent revelations of prisoner abuse at Baghdad’s Abu Ghraib prison might lead to a closer examination of the agency’s treatment of al-Qaeda prisoners. “Some people involved in this have been concerned for quite a while that eventually there would be a new president, or the mood in the country would change, and they would be held accountable,” one says. “Now that’s happening faster than anybody expected.” [BBC, 5/13/2004] In 2008, a Justice Department investigation (see May 20, 2008) will reveal that sometime in mid-2002, the FBI’s then-assistant director for counterterrorism, Pasquale D’Amuro, ordered FBI agents at Guantanamo to stop participating in interrogations and leave the facility. D’Amuro brought the issue to Mueller’s attention; according to the Justice Department report, D’Amuro “stated that his exact words to Mueller were ‘we don’t do that’ and that someday the FBI would be called to testify and he wanted to be able to say that the FBI did not participate in this type of activity.” D’Amuro was concerned that the use of such aggressive interrogation techniques “failed to take into account an ‘end game.’” The report will continue: “D’Amuro stated that even a military tribunal would require some standard for admissibility of evidence. Obtaining information by way of ‘aggressive’ techniques would not only jeopardize the government’s ability to use the information against the detainees, but also might have a negative impact on the agents’ ability to testify in future proceedings.” Mueller agreed with D’Amuro and issued what became a “bright line rule” barring FBI agents from participating in CIA and military interrogations involving such methods. [Newsweek, 5/20/2008]
On May 17, 2004, security officials say that recent intelligence has led to increased concern about the possibility of a major terrorist attack in the US. It is believed that the attack could take place as early as the summer and before November, perhaps in an attempt to affect the outcome of the Presidential election. Potential targets include the dedication of the National World War II Memorial on the National Mall in Washington, the G8 economic summit on Sea Island, Georgia, Fourth of July celebrations, the Democratic convention in Boston, the Republican convention in New York, and the Olympics in Greece. However, no specific target, time or date is identified for the possible attack. Sources do state that the assessment is new and is the result of intelligence gathered over time. However, an official with the Department of Homeland Security, speaking on condition of anonymity, states that “We are not aware of any new highly credible intelligence indicating a planned attack in the US this summer. Nothing in the current intelligence is exceptionally specific.” [CNN, 5/25/2004] The next day, Attorney General John Ashcroft and FBI Director Robert Mueller hold a news conference to warn of a “plane attack inside the United States.” They warn that terrorists are “poised for an immediate attack.” Ashcroft says “credible intelligence from multiple sources indicates that al-Qaeda plans to attempt an attack on the United States in the next few months. This disturbing intelligence indicates al-Qaeda’s specific intention to hit the United States hard.” [CNN, 5/26/2004] The Justice Department asks for assistance in locating seven alleged terrorist operatives and states an increased concern about attacks over the summer. [CBS News, 6/14/2004] It is later revealed the threat actually came from a group that falsely claimed responsibility for the terror attacks in Madrid. One expert says that the group is “not really taken seriously by Western intelligence.” These warnings come as the administration is under heavy criticism for failures in Iraq. The Abu Ghraib torture scandal dominates headlines. [Rolling Stone, 9/21/2006 ] This warning also comes on the heels of other bad news for the Bush administration. During a May 16 interview on Meet the Press, Secretary of State Colin Powell is cut off by an aide while discussing misleading CIA information regarding WMD in Iraq. He admits that “it turned out that the sourcing was inaccurate and wrong and in some cases, deliberately misleading. And for that, I am disappointed and I regret it.” [MSNBC, 6/15/2004] Three days later, Newsweek reports that White House counsel Alberto Gonzalez warned in a January 25, 2002 internal White House memo that US officials could be prosecuted for war crimes due to the unprecedented and unusual methods used by the Bush administration in the war on terrorism. [Newsweek, 5/19/2004]
Rene Lerner, a deputy assistant attorney general in the Office of Legal Counsel (OLC), and Justice Department lawyer Adrien Silas send a memo to Assistant Attorney General William Moschella. The memo will remain classified, but the American Civil Liberties Union (ACLU) will learn that it pertains to the so-called “McCain Amendment,” later known as the Detainee Treatment Act (see December 15, 2005). President Bush will sign the bill into law, but will include a signing statement that states the administration will not follow the law because it impinges on the president’s constitutional authority to conduct military operations (see December 30, 2005). It is unclear whether Bush’s signing statement is influenced by the memo. [ProPublica, 4/16/2009]
Attorney General John Ashcroft again invokes the “state secrets” privilege (see March 9, 1953), forbidding former FBI translator Sibel Edmonds from testifying in a case brought by hundreds of families of September 11 victims (see October 18, 2002). [New York Times, 5/20/2004] Four weeks earlier, on April 26, the Justice Department had obtained a temporary court order preventing her from testifying before the court. [Independent, 4/2/2004; Government Executive, 4/30/2004] The families, represented by the law firm Motley-Rice, allege that a number of banks and two members of the Saudi royal family provided financial support to al-Qaeda. [New York Times, 5/20/2004] Ashcroft’s order retroactively classifies information it provided Senators Chuck Grassley and Patrick Leahy (see June 17, 2002) concerning former FBI translator Sibel Edmonds and her allegations. Among the documents to be “reclassified” are the follow-up letters sent by Grassley and Leahy to the FBI which they posted on their website. Their staff members are prohibited from discussing the information, even though it is now public knowledge. The order bars Edmonds from answering even simple questions like, “When and where were you born?” “What languages do you speak?” and “Where did you go to school?” [New York Times, 5/20/2004; Boston Globe, 7/5/2004; Asia Times, 8/6/2004; Vanity Fair, 9/2005] In response to the announcement, Grassley says: “I think it’s ludicrous, because I understand that almost all of this information is in the public domain and has been very widely available. This classification is very serious, because it seems like the FBI would be attempting to put a gag order on Congress.” [New Republic, 6/7/2004]
Mohdar Abdullah is quietly deported to Yemen after spending nearly three years in US prisons. Abdullah was arrested shortly after 9/11 and held as a material witness. He was eventually charged with an immigration violation. He pled guilty to lying on an asylum application and then served a six-month sentence. However, he chose to remain imprisoned so he could fight deportation. He is a Yemeni citizen, and the US wanted to deport him to Yemen, but the Yemeni government would not take him. According to his lawyer, Yemen twice refused to admit him and only finally agreed after intense pressure from the US State Department. [San Diego Union-Tribune, 5/26/2004]
Suspicious Links to 9/11 Hijackers - Officials said in court documents that Abdullah regularly dined and prayed with 9/11 hijackers Nawaf Alhazmi, Khalid Almihdhar, and Hani Hanjour. Additionally, he helped Alhazmi and Almihdhar adjust to life in the US in a variety of ways, including help with: interpreting, computer use, finding a job, finding a place to live, obtaining Social Security cards, and obtaining driver licenses. He also worked with Alhazmi at a gas station where many other radical Islamists worked, including some who had been investigated by the FBI (see Autumn 2000). [San Diego Union-Tribune, 5/26/2004; San Diego Union-Tribune, 6/2/2004]
9/11 Commission Not Allowed to Interview Him before Deportation - The 9/11 Commission’s work is almost done by the time that Abdullah is deported; its final report will be released two months later. However, the Commission is not allowed to interview Abdullah even though he is being held in a US prison (and not in Guantanamo or some secret overseas prison). 9/11 Commission co-chair Tom Kean will later say, “He should not have been let out of the country when the 9/11 Commission wanted to interview him.” Kean will not comment on why the Commission does not or is not able to interview him before his deportation. [MSNBC, 9/8/2006]
Justice Department Will Not Delay Deportation to Help Investigation - In late 2003, new evidence emerged that Abdullah may have had foreknowledge of the 9/11 attacks. But US prosecutors decided not to charge him based on that new evidence, and the Justice Department does not even try to delay his deportation to allow investigators time to pursue the new leads (see September 2003-May 21, 2004).
FBI Will Reopen Investigation into Abdullah - The new evidence suggested that Abdullah may have learned about the 9/11 attack plans as early as the spring of 2000 (see Early 2000). He also seemed to show foreknowledge of the attacks shortly before they occurred (see Late August-September 10, 2001). By October 2004, it will be discovered that he cased the Los Angeles airport with Alhazmi and an unknown man (see June 10, 2000), and this revelation will cause the FBI to reopen its investigation into him—after he is deported (see September 2003-May 21, 2004). In September 2006, it will be reported that the investigation is still continuing. [MSNBC, 9/8/2006]
9/11 Commission Executive Director Philip Zelikow in April 2004. [Source: Joe Marquette/European Pressphoto Agency]9/11 Commission executive director Philip Zelikow is investigated by the Justice Department following a complaint by the CIA that he mishandled classified information. Zelikow did not leak information to reporters, but there are suspicions he has included classified information in e-mails with other people on the Commission, including e-mails that were sent overseas. The CIA received notification that Zelikow may have mishandled the information from an unnamed member of the Commission’s staff. Zelikow is not interviewed during the investigation, and will later say that he does not become aware of it until later and that his security clearances will later be renewed. Zelikow will also say that the investigation may be an attempt by the CIA to play “hardball” in a dispute over the declassification of information, and to “criminalize this dispute and target me in the process.” The CIA will deny this, saying that they could have leaked news of the investigation to the press, but did not do so. Some of the Commission’s staff find the investigation to be ironic, because Zelikow fired staffer Dana Lesemann for a less serious breach of the rules for handling classified documents soon after the Commission started. The information is closely held within the 9/11 Commission, and even some commissioners do not learn of the investigation. It is unclear how the investigation concludes and how seriously it is taken at the Justice Department. [Shenon, 2008, pp. 406-410]
When the recording of flight attendant Betty Ong is played in public before the 9/11 Commission in January 2004, family members demand that the FBI honor the family members’ rights under the Victims Assistance Act to hear any and all phone calls made from the hijacked airplanes. So, on this date, about 130 victims’ relatives gather in Princeton, New Jersey, and hear previously unavailable calls. But the Justice Department only plays what it decided are “relevant” calls. However, attendees are ordered not to disclose what they hear lest it compromise the prosecution of Zacarias Moussaoui. [CNN, 5/28/2004; Associated Press, 6/5/2004; New York Observer, 6/20/2004] Some family members nonetheless later discuss what they have heard. Witnesses describe one recording of two American Airlines managers who are told details of flight attendant Amy Sweeney’s call from Flight 11 shortly after the first hijacking has begun. Rather than report news of a possible hijacking to other government agencies so they can learn what to do in case there is a crisis, the managers say things like, “don’t spread this around. Keep it close,” and “Keep it quiet” (see 8:25 a.m. September 11, 2001)
[New York Observer, 6/20/2004]
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]
Nuradin Mahamoud Abdi. [Source: Associated Press]The Justice Department announces to the press they have thwarted an imminent terror plot to bomb malls in Ohio. A Somali native residing in Ohio is charged with plotting to blow up a Columbus shopping mall. It is alleged that he was part of a group of al-Qaeda operatives. Attorney General John Ashcroft says, “The American heartland was targeted for death and destruction by an al-Qaeda cell which allegedly included a Somali immigrant who will now face justice.” The man, Nuradin Mahamoud Abdi, is alleged to have obtained refugee documentation under false pretenses and to have attended terrorist training camps in Ethiopia. Although authorities would not state how many were involved in the plot, they do name admitted al-Qaeda member Iyman Faris as a co-conspirator (see Mid-March 2003). Faris, serving a 20-year sentence for providing material support to terrorism and conspiracy to provide material support, plead guilty in May 2003 to plotting to blow up the Brooklyn Bridge and to providing sleeping bags, mobile phones, and cash to al-Qaeda operatives. He later withdrew this plea, but was subsequently convicted. [CBS News, 6/14/2004] Later it is revealed that Abdi had been arrested November 28, 2003, for his connections to terrorism, so there is nothing “imminent” in the case. Court papers filed by the government allege the existence of a plot from March 2000. His indictment isn’t announced until June 15, 2004, and it makes no mention of the shopping mall plot publicly announced the day before. [Cincinnati Post, 6/15/2004] The Justice Department announcement comes as Democratic Presidential candidate John Kerry leads President Bush by seven points in early Ohio polls. [Rolling Stone, 9/21/2006 ]
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]
The head of the Justice Department’s Office of Legal Counsel (OLC), Jack Goldsmith (see June 17, 2004), Deputy Attorney General Jack Comey, and Justice Department lawyer Patrick Philbin brief reporters on the OLC’s decision to withdraw the department’s memos authorizing torture (see June 22, 2004). Comey explains that the statements about potential defenses against war crimes charges, and the commander in chief’s power to ignore anti-torture laws and treaties, are nothing more than “broad academic theories” that had never actually been relied upon to formulate policy. The “golden shield” memo (see August 1, 2002) is “under review and will be replaced with analysis limited to the legality of actual al-Qaeda interrogation practices and the torture statutes and other applicable laws.” Goldsmith’s decision to withdraw the memos causes what author and reporter Charlie Savage will later term “a final burst of apoplexy among the hard-liners on the Bush-Cheney legal team.” OLC lawyer John Yoo, who authored many of the withdrawn memos, will later write that Goldsmith’s decision set “a terrible precedent” and rendered “Justice Department judgments on the law… just one more political target open to political attack and political negotiations.” Yoo will accuse Goldsmith and Comey of being “too worried about public perceptions” of the department’s work. [Savage, 2007, pp. 190-191]
Attempting to stem the flow of bad publicity and world-wide criticism surrounding the revelations of torture at Abu Ghraib prison in Baghdad and similar reports from Guantanamo Bay, Attorney General Alberto Gonzales and Pentagon general counsel William J. Haynes, accompanied by Pentagon lawyer Daniel Dell’Orto, give a lengthy press conference to discuss the US’s position on interrogation and torture. Gonzales and Haynes provide reporters with a thick folder of documents, being made public for the first time. Those documents include the so-called “Haynes Memo” (see November 27, 2002), and the list of 18 interrogation techniques approved for use against detainees (see December 2, 2002 and April 16, 2003). Gonzales and Haynes make carefully prepared points: the war against terrorism, and al-Qaeda in particular, is a different kind of war, they say. Terrorism targets civilians and is not limited to battlefield engagements, nor do terrorists observe the restrictions of the Geneva Conventions or any other international rules. The administration has always acted judiciously in its attempt to counter terrorism, even as it moved from a strictly law-enforcement paradigm to one that marshaled “all elements of national power.” Their arguments are as follows:
Always Within the Law - First, the Bush administration has always acted within reason, care, and deliberation, and has always followed the law. In February 2002, President Bush had determined that none of the detainees at Guantanamo should be covered under the Geneva Conventions (see February 7, 2002). That presidential order is included in the document packet. According to Gonzales and Haynes, that order merely reflected a clear-eyed reading of the actual provision of the conventions, and does not circumvent the law. Another document is the so-called “torture memo” written by the Justice Department’s Office of Legal Counsel (see August 1, 2002). Although such legal opinions carry great weight, and though the administration used the “torture memo” for months to guide actions by military and CIA interrogators, Gonzales says that the memo has nothing to do with the actions at Guantanamo. The memo was intended to do little more than explore “the limits of the legal landscape.” Gonzales says that the memo included “irrelevant and unnecessary” material, and was never given to Bush or distributed to soldiers in the field. The memo did not, Gonzales asserts, “reflect the policies that the administration ultimately adopted.” Unfortunately for their story, the facts are quite different. According to several people involved in the Geneva decision, it was never about following the letter of the law, but was designed to give legal cover to a prior decision to use harsh, coercive interrogation. Author and law professor Phillippe Sands will write, “it deliberately created a legal black hole into which the detainees were meant to fall.” Sands interviewed former Defense Department official Douglas Feith about the Geneva issue, and Feith proudly acknowledged that the entire point of the legal machinations was to strip away detainees’ rights under Geneva (see Early 2006).
Harsh Techniques Suggested from Below - Gonzales and Haynes move to the question of where, exactly, the new interrogation techniques came from. Their answer: the former military commander at Guantanamo, Michael E. Dunlavey. Haynes later describes Dunlavey to the Senate Judiciary Committee as “an aggressive major general.” None of the ideas originated in Washington, and anything signed off or approved by White House or Pentagon officials were merely responses to requests from the field. Those requests were prompted by a recalcitrant detainee at Guantanamo, Mohamed al-Khatani (see August 8, 2002-January 15, 2003), who had proven resistant to normal interrogation techniques. As the anniversary of the 9/11 attacks approached, and fears of a second attack mounted, Dell’Orto says that Guantanamo field commanders decided “that it may be time to inquire as to whether there may be more flexibility in the type of techniques we use on him.” Thusly, a request was processed from Guantanamo through military channels, through Haynes, and ultimately to Defense Secretary Donald Rumsfeld, who approved 15 of the 18 requested techniques to be used against al-Khatani and, later, against other terror suspects (see September 25, 2002 and December 2, 2002). According to Gonzales, Haynes, and Dell’Orto, Haynes and Rumsfeld were just processing a request from military officers. Again, the evidence contradicts their story. The torture memo came as a result of intense pressure from the offices of Rumsfeld and Vice President Cheney. It was never some theoretical document or some exercise in hypothesizing, but, Sands will write, “played a crucial role in giving those at the top the confidence to put pressure on those at the bottom. And the practices employed at Guantanamo led to abuses at Abu Ghraib.” Gonzales and Haynes were, with Cheney chief of staff David Addington and Justice Department lawyers John Yoo and Jay Bybee (the authors of the torture memo), “a torture team of lawyers, freeing the administration from the constraints of all international rules prohibiting abuse,” in Sands’s words. Dunlavey was Rumsfeld’s personal choice to head the interrogations at Guantanamo; he liked the fact that Dunlavey was a “tyrant,” in the words of a former Judge Advocate General official, and had no problem with the decision to ignore the Geneva Conventions. Rumsfeld had Dunlavey ignore the chain of command and report directly to him, though Dunlavey reported most often to Feith. Additionally, the Yoo/Bybee torture memo was in response to the CIA’s desire to aggressively interrogate another terror suspect not held at Guantanamo, Abu Zubaida (see March 28, 2002). Sands will write, “Gonzales would later contend that this policy memo did ‘not reflect the policies the administration ultimately adopted,’ but in fact it gave carte blanche to all the interrogation techniques later recommended by Haynes and approved by Rumsfeld.” He also cites another Justice Department memo, requested by the CIA and never made public, that spells out the specific techniques in detail. No one at Guantanamo ever saw either of the memos. Sands concludes, “The lawyers in Washington were playing a double game. They wanted maximum pressure applied during interrogations, but didn’t want to be seen as the ones applying it—they wanted distance and deniability. They also wanted legal cover for themselves. A key question is whether Haynes and Rumsfeld had knowledge of the content of these memos before they approved the new interrogation techniques for al-Khatani. If they did, then the administration’s official narrative—that the pressure for new techniques, and the legal support for them, originated on the ground at Guantanamo, from the ‘aggressive major general’ and his staff lawyer—becomes difficult to sustain. More crucially, that knowledge is a link in the causal chain that connects the keyboards of Feith and Yoo to the interrogations of Guantanamo.”
Legal Justifications Also From Below - The legal justification for the new interrogation techniques also originated at Guantanamo, the three assert, and not by anyone in the White House and certainly not by anyone in the Justice Department. The document stack includes a legal analysis by the staff judge advocate at Guantanamo, Lieutenant Colonel Diane Beaver (see October 11, 2002), which gives legal justifications for all the interrogation techniques. The responsibility lies ultimately with Beaver, the three imply, and not with anyone higher up the chain. Again, the story is severely flawed. Beaver will give extensive interviews to Sands, and paint a very different picture (see Fall 2006). One Naval Criminal Investigative Service (NCIS) psychologist, Mike Gelles (see December 17-18, 2002), will dispute Gonzales’s contention that the techniques trickled up the chain from lower-level officials at Guantanamo such as Beaver. “That’s not accurate,” he will say. “This was not done by a bunch of people down in Gitmo—no way.” That view is supported by a visit to Guantanamo by several top-ranking administration lawyers, in which Guantanamo personnel are given the “green light” to conduct harsh interrogations of detainees (see September 25, 2002).
No Connection between Guantanamo, Abu Ghraib - Finally, the decisions regarding interrogations at Guantanamo have never had any impact on the interrogations at Abu Ghraib. Gonzales wants to “set the record straight” on that question. The administration has never authorized nor countenanced torture of any kind. The abuses at Abu Ghraib were unauthorized and had nothing to do with administration policies. Much evidence exists to counter this assertion (see December 17-18, 2002). In August 2003, the head of the Guantanamo facility, Major General Geoffrey Miller, visited Abu Ghraib in Baghdad, accompanied by, among others, Diane Beaver (see August 31, 2003-September 9, 2003). They were shocked at the near-lawlessness of the facility, and Miller recommended to Lieutenant General Ricardo Sanchez, the supreme US commander in Iraq, that many of the same techniques used at Guantanamo be used in Abu Ghraib. Sanchez soon authorized the use of those techniques (see September 14-17, 2003). The serious abuses reported at Abu Ghraib began a month later. Gelles worried, with justification, that the techniques approved for use against al-Khatani would spread to other US detention facilities. Gelles’s “migration theory” was controversial and dangerous, because if found to be accurate, it would tend to implicate those who authorized the Guantanamo interrogation techniques in the abuses at Abu Ghraib and elsewhere. “Torture memo” author John Yoo called the theory “an exercise in hyperbole and partisan smear.” But Gelles’s theory is supported, not only by the Abu Ghraib abuses, but by an August 2006 Pentagon report that will find that techniques from Guantanamo did indeed migrate into Abu Ghraib, and a report from an investigation by former defense secretary James Schlesinger (see August 24, 2004) that will find “augmented techniques for Guantanamo migrated to Afghanistan and Iraq where they were neither limited nor safeguarded.” [White House, 7/22/2004; Vanity Fair, 5/2008]
Entity Tags: US Department of Justice, Phillippe Sands, Ricardo S. Sanchez, Office of Legal Counsel (DOJ), Taliban, US Department of Defense, William J. Haynes, Naval Criminal Investigative Service, Richard (“Dick”) Cheney, Michael Gelles, Bush administration (43), Daniel J. Dell’Orto, Mohamed al-Khatani, Diane E. Beaver, Donald Rumsfeld, Alberto R. Gonzales, Al-Qaeda, Abu Zubaida, Geneva Conventions, Michael E. Dunlavey, John C. Yoo, Federal Bureau of Investigation, Jay S. Bybee, George W. Bush, Geoffrey D. Miller, James R. Schlesinger, Douglas Feith
Timeline Tags: Torture of US Captives, Civil Liberties
In November 2002, as the 9/11 Congressional Inquiry was finishing its investigation, it had formally asked for a report by the Justice Department (which oversees the FBI) to determine “whether and to what extent personnel at all levels should be held accountable” for the failure to stop the 9/11 attacks. An identical request was made to the CIA (see June-November 2004). [New York Times, 9/14/2004] The Justice Department report, titled “A Review of the FBI’s Handling of Intelligence Information Related to the September 11 Attacks,” is completed this month. [Washington Post, 4/30/2005] It centers on three FBI failures before 9/11: the failure to follow up on the arrest of Zacarias Moussaoui in August 2001 (see August 16, 2001), the failure to follow up on FBI agent Ken Williams’ memo (see July 10, 2001) warning about Islamic militants training in US flight schools, and the FBI’s failure to follow up on many leads to hijackers Nawaf Alhazmi and Khalid Almihdhar. The report provides some new details about miscommunications, inaction, and other problems. [New York Times, 9/14/2004] The report remains classified. Senior Senate Judiciary Committee members Patrick Leahy (D-VT) and Charles Grassley (R-IA) call for its release. The senators state, “While the needs of national security must be weighed seriously, we fear the designation of information as classified, in some cases, serves to protect the executive branch against embarrassing revelations and full accountability. We hope that is not the case here.” [Washington Times, 7/12/2004; New York Times, 9/14/2004] One problem complicating the issuing of even a declassified version is the possibility that the material would taint the criminal proceedings against Zacarias Moussaoui. In early 2005, the Justice Department inspector general’s office will ask the judge presiding over Moussaoui’s case for permission to release a declassified version of the report. But the judge will turn down the request in April 2005, even after Moussaoui pleads guilty (see April 30, 2005). The report will finally be released in June 2005 without the section on Moussaoui (see June 9, 2005). [New York Times, 2/13/2005]
The White House sends a classified memo to the CIA. The contents of the memo will remain secret, but the American Civil Liberties Union (ACLU) and the Washington Post will later learn that it approves “harsh tactics” by CIA interrogators in questioning suspected terrorists. The memo was requested by CIA Director George Tenet, who asked for legal cover for the torture and harsh interrogation methods employed by CIA interrogators in the aftermath of the Abu Ghraib scandal. Tenet had already asked for, and received, a similar legal authorization a year earlier (see June 1, 2003). [Washington Post, 10/15/2008; American Civil Liberties Union [PDF], 1/28/2009 ]
Deputy Attorney General James Comey calls US Attorney Carol Lam over her office’s “underperformance” with regards to firearms prosecutions under the Project Safe Neighborhoods (PSN) initiative (see March 10, 2004). Comey tells Lam that PSN is a high priority for the Justice Department, and “something incredibly important to the attorney general and me, and to the president.” He tells her that he wants her “to really focus on this and make sure you are not missing something.” He acknowledges that different districts handle gun prosecutions differently, depending on the individual state’s gun laws, and notes that he is not calling “just for the sake of getting your [PSN] numbers up.” When asked (see September 29, 2008) if he thought she understood that she needed to get her PSN numbers higher, Comey will say, “I was keen not to convey that directly.” He understands that California has quite restrictive state gun laws, and state prosecutors handle many cases that federal law enforcement officials such as US Attorneys would handle in other states. However, Comey does expect her numbers to increase because he called her about the issue. He does not tell her that a failure to improve her PSN numbers would warrant her termination. Spencer Pryor, a counsel in Comey’s office and a participant in the telephone conversation between Comey and Lam, sends a memo to Kyle Sampson, a lawyer on the staff of Attorney General Alberto Gonzales, summarizing the results of the calls to Lam and other “underperforming” US Attorneys. Pryor notes that Lam acknowledged Comey’s concerns, but stated that her office had received no PSN resources. Pryor notes that Lam is incorrect, that she has received another prosecutor for PSN cases. Lam also says during the call that her district’s PSN case screening process is “broken” and a new system would help boost prosecution numbers. Pryor also notes that state prosecutors handle many firearms cases because of California’s strict gun laws. Pryor concludes that Lam needs more resources to adequately prosecute PSN cases. Lam sends an email to her staff detailing the conversation with Comey, tells them that their district ranks 93rd out of 94 US Attorneys in gun prosecutions (only 20 in the previous year), and that she told Comey that while their numbers will increase in the coming months, he should not expect a “meteoric rise.” She cites California’s gun laws and the “immense” caseload of her office as reasons why their numbers are so low. She tells her staff that she knows Comey wants the PSN numbers to rise. She later says she works with local law enforcement agencies to have them refer any firearms cases to her office where the federal sentence would exceed the state sentence by 24 months. Moreover, she will say, in 2005 and 2006 her office will make concerted efforts to prosecute more firearms cases. However, she will say, those measures are “a solution in search of a problem,” and her office will get few referrals. [US House of Representatives, Committee of the Judiciary, 4/13/2007 ; US Department of Justice, Office of the Inspector General, 9/29/2008]
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 ; New Yorker, 2/27/2006]
Glenn A. Fine, the Justice Department’s inspector general, completes his report on Sibel Edmonds’ allegations (see Afternoon March 7, 2002). The 100-page report determines that “many of Edmonds’ core allegations relating to the co-worker [Melek Can Dickerson] were supported by either documentary evidence or witnesses” and concludes that “the FBI did not, and still has not adequately investigated these allegations.” Additionally, Fine’s report concludes that Edmonds was fired because she was having a “disruptive effect,” which could be attributed to “Edmonds’ aggressive pursuit of her allegations of misconduct, which the FBI did not believe were supported and which it did not adequately investigate.” Fine adds, “[A]s we described throughout our report, many of her allegations had basis in fact. We believe… that the FBI did not take them seriously enough, and that her allegations were, in fact, the most significant factor in the FBI’s decision to terminate her services.” The report is immediately classified by the FBI. Not even Edmonds is allowed to see the contents. An unclassified 37-page summary of the report will be released in January 2005. [Washington Post, 7/9/2004; Associated Press, 7/30/2004; Associated Press, 1/14/2005; CNN, 1/14/2005; New York Times, 1/15/2005; Vanity Fair, 9/2005]
Margaret Chiara, the US Attorney for the Western District of Michigan (see November 2, 2001), undergoes her first Evaluation and Review Staff (EARS) performance evaluation, as mandated by the Justice Department. The evaluation is generally positive, finding that Chiara is “a well regarded, hard-working, and capable leader who had the respect and confidence of the judiciary, the agencies, and USAO [US Attorney’s Office] personnel.” However, the evaluation finds “discontent within the criminal division” in Chiara’s office, based on the perceptions of some of her Assistant US Attorneys that some people are being rewarded for hard work more than others. A later draft report notes that “[m]any AUSAs reported to evaluators [concerns about] the number and size of awards given to other AUSAs during the last 12 months. This information was found by evaluators to be generally inaccurate.” [US Department of Justice, Office of the Inspector General, 9/29/2008] A subsequent EARS report, issued in June 2005, praises Chiara and her office for “effectively” implementing the department’s national priorities, and notes how effectively the office has worked in “dismantling and disrupt[ing] drug organizations” in Chiara’s district. It also notes a significant increase in firearms cases being referred to state and local authorities. Chiara has a “firm grasp on [the district’s] unique crime problems and issues,” the report notes, singling out her deft handling of “violent crimes in Indian Country.” And it praises the “management principles applied in your district,” resulting in “high quality work from your personnel.” [US House of Representatives, Committee on the Judiciary, 5/21/2007]
Jack Goldsmith, the head of the Justice Department’s Office of Legal Counsel (OLC), sends a classified memo to Attorney General John Ashcroft. The contents of the memo remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo concerns the ramifications of a recent Supreme Court decision on gathering foreign intelligence. Presumably, Goldsmith is writing about the Hamdi decision, in which the Court ruled that enemy combatants and detainees have the right to due process in the US justice system (see June 28, 2004), but this is by no means certain. [American Civil Liberties Union [PDF], 1/28/2009 ]
Secretary of State Colin Powell testifies before the grand jury investigating the Plame Wilson identity leak. State Department spokesman Richard Boucher will confirm Powell’s testimony in early August after Newsweek reports on it. No details are made public about Powell’s testimony; Boucher will merely say that Powell was “pleased to cooperate with the grand jury,” and that Powell is not personally the subject of its inquiry. Newsweek will report that the jury is interested in Powell’s July 2003 trip to Africa with President Bush, and his possession of a State Department memo discussing the Iraq-Niger uranium claim and Valerie Plame Wilson’s CIA status (see June 10, 2003 and July 7, 2003). Boucher will say, “As grand jury matters are secret, any further questions must be referred to the Department of Justice.” [Washington Post, 8/4/2004]
A letter by FBI Director Robert Mueller regarding FBI whistleblower Sibel Edmonds is leaked to the media. Edmonds has made some very serious allegations about the FBI, including claims of important missed 9/11 warnings and the existence of a foreign spy ring inside US government agencies. Mueller’s letter reveals that a highly classified Justice Department report on Edmonds has concluded that her allegations “were at least a contributing factor in why the FBI terminated her services.” This report also criticizes the FBI’s failure to adequately pursue her allegations of espionage. An anonymous official states that the report concludes that some of her allegations were shown to be true, others cannot be corroborated because of a lack of evidence, and none of her accusations were disproved. [New York Times, 7/29/2004]
US Representative Darrell Issa (R-CA) and 13 other representatives sign a letter to Attorney General John Ashcroft protesting the Justice Department’s policy towards prosecuting “alien smugglers,” or “coyotes,” who bring illegal immigrants across the US-Mexican border. Issa, who wrote the letter, says that the DOJ should adopt a “zero-tolerance” policy towards “alien smuggling” and should prosecute everyone accused of such a crime. Issa refers to decisions by US Attorney Carol Lam of the District of Southern California (see November 8, 2002) not to prosecute persons charged with the crime of “alien smuggling,” and references the case of Antonio Amparo-Lopez as an example of a “missed opportunity” to prosecute such an alleged criminal (see February 2, 2004). Issa writes: “It is unfortunate and unacceptable that anyone in the Department of Justice would deem alien smuggling, on any level or by any person, too low of a priority to warrant prosecution in a timely fashion. In our view, a lack of available resources for prosecution is not a valid reason for a decision not to prosecute and, in fact, would signify a mismanagement of your department’s priorities.” [US Department of Justice, 3/23/2007 ] Issa represents California’s 49th District, which centers on San Diego and is part of Lam’s federal district. [Healthy City, 8/2011 ] Assistant Attorney General William Moschella will send Issa a brief reply defending the Justice Department’s prosecution practices (see (December 30, 2004)). Issa’s spokesperson Frederick Hill will later tell columnist Byron York: “We were stumped in terms of getting information to explain the scope of the problem. We put the word out on the street that we were interested in getting more information about this.” York later writes, “Issa was hoping for a tip—perhaps from someone inside a law-enforcement organization—to give him the information he had been seeking.” [National Review, 3/28/2007]
Bradley Schlozman, a deputy in the Justice Department’s Voting Rights Section of the Civil Rights Division (CRD), receives an email from his supervisor, John Tanner, asking him to bring coffee for both of them to a meeting they are both scheduled to attend. Schlozman asks how Tanner likes his coffee and Tanner replies that he likes it “Mary Frances Berry style—black and bitter.” Berry, an African-American, chaired the US Commission on Civil Rights from 1993 to 2004. Schlozman forwards the email exchange to several CRD officials with the comment, “Y’all will appreciate Tanner’s response.” Shortly thereafter, he is forced to write a written apology for his action. [Washington Post, 1/13/2009]
Officials at the CIA refer a case in which a detainee named Gul Rahman apparently froze to death at the Salt Pit prison in Afghanistan (see November 20, 2002) to the Justice Department for examination. [Washington Post, 9/19/2009] The full name of the CIA officer who caused the detainee to die is not known, although his last name is Zirbel. [Mahoney and Johnson, 10/9/2009, pp. 29 ] The case is reviewed with an eye to prosecution by the US Attorneys Office for the Eastern District of Virginia, where one of the office’s top prosecutors works on it. [Washington Post, 9/19/2009] This is apparently one of eight such referrals around this time. [New York Times, 10/23/2005] According to the New York Times, the Justice Department will be “reviewing its jurisdiction” in the case in May 2005. [New York Times, 5/22/2004] The department will decide not to prosecute in October 2005 (see Mid-October 2005), but will re-examine the case in 2009 (see August 24, 2009).
The press reports that according to a Justice Department investigation, Senator Richard Shelby (R-AL), then the ranking Republican on the Senate Intelligence Committee, leaked highly classified information to Fox News reporter Carl Cameron regarding al-Qaeda communications in the hours before 9/11 (see June 19, 2002). After Vice President Dick Cheney threatened the then-chairman of the Senate Intelligence Committee, Bob Graham (D-FL—see June 20, 2002), Graham and then-House Intelligence Committee chairman Porter Goss (R-FL) pushed for a Justice Department investigation into the leak. Though the FBI and the US Attorney’s Office conducted a probe, and even empaneled a grand jury, the Justice Department decided not to prosecute anyone, and instead turned Shelby’s name over to the Senate Ethics Committee, which will decline to pursue charges against him. Shelby states that he did not leak any classified information to anyone, and says he has never been informed of any specific allegations. The FBI demanded that 17 senators turn over phone records, appointment calendars, and schedules. One Senate Intelligence Committee staffer told the FBI that Shelby had leaked the information to show the shortcomings of the intelligence community in general and CIA Director George Tenet in particular. Though two senior Justice Department officials, then-Deputy Attorney General Larry Thompson and then-criminal division chief Michael Chertoff, refused to approve subpoenas for journalists, Cameron confirmed to FBI investigators that he was a recipient of Shelby’s leak. He also told investigators that he saw Shelby talking with CNN’s Dana Bash; after Shelby’s discussion with Bash, Cameron divulged the information Shelby had leaked to her, and CNN broadcast the story a half-hour after the conversations. Cameron told FBI agents he was irritated that Shelby had shared the same information with a competitor, and added that he delayed broadcasting the story because he wanted to ensure that he was not compromising intelligence sources and methods. Cameron was never subpoenaed and did not testify under oath. Bash refused to cooperate with the investigation. [Washington Post, 8/5/2004; National Journal, 2/15/2007]
Entity Tags: Larry D. Thompson, Dana Bash, Carl Cameron, CNN, Daniel Robert (“Bob”) Graham, Federal Bureau of Investigation, George J. Tenet, Richard (“Dick”) Cheney, US Department of Justice, Michael Chertoff, Porter J. Goss, Fox News, Richard Shelby, Senate Ethics Committee, Senate Intelligence Committee
Timeline Tags: Complete 911 Timeline, Civil Liberties
Daniel Levin, the acting head of the Justice Department’s Office of Legal Counsel (OLC), sends a draft memo to Deputy Attorney General James Comey. The memo remains secret, but the American Civil Liberties Union (ACLU) will learn that it details the OLC’s views on a decision to be made by Comey on a classified intelligence collection activity. [ProPublica, 4/16/2009]
Representative Heather Wilson (R-NM) writes a letter to US Attorney David Iglesias complaining about what she considers to be evidence of possible voter fraud in her district. She reports that an unusually large number of mailings from her office to newly registered voters are being returned as undeliverable. She asks Iglesias to “investigate whether these voter registrations were lawful and whether any organizations or groups are intentionally causing false voter registration forms to be filed with the county clerk.” Iglesias will not respond to Wilson’s letter until October 29, 2004, just days before the November elections, and will inform Wilson that he is referring her complaint to the FBI “for their review and possible action. The FBI will determine whether a federal investigation may be warranted.” Wilson will forward Iglesias’s response to her chief of staff with the handwritten comment: “What a waste of time. Nobody home at US Attorney’s Office.” Wilson will later state that she faults Iglesias for not pursuing her complaint in a timely manner. It is unclear whether she is aware of Iglesias’s Election Fraud Task Force, formed in September 2004 (see September 7 - October 6, 2004). The FBI will find that the undeliverable mailings referred to in Wilson’s complaints were returned because of incomplete addresses on voter registration cards (i.e. apartment numbers left out), errors by Wilson’s office in addressing the envelopes, or because the people mailings were sent to, usually college students, had since moved. The FBI will recommend, and the task force will concur, that no further investigation of Wilson’s complaints is warranted. [US Department of Justice, Office of the Inspector General, 9/29/2008] Wilson’s letter is spurred by New Mexico Republicans’ efforts to block ACORN (the Association of Community Organizations for Reform Now) from registering new voters in largely Hispanic and poor areas. The effort is being led by Matt Henderson, an Albuquerque resident and ACORN head organizer; under Henderson’s leadership, ACORN is registering thousands of new voters, whom Republicans in New Mexico and Washington, DC, correctly fear will vote largely Democratic. ACORN and other groups are battling Republican efforts to institute strict voter ID laws, which critics say will hinder poor, minority, and elderly voters from participating in elections. In 2000, the state had gone for Democrat Al Gore by a vanishingly small margin of 366 votes; both parties believe that the 2004 presidential election will be equally close. By August 2004, ACORN and other groups have signed up some 65,000 new voters in Bernalillo County, which encompasses Albuquerque. Sheriff Darren White is the person who allegedly found voter registration errors in some 3,000 forms filed with the Bernalillo County clerk, including forms lacking Social Security numbers, complete addresses, and the like. White, the chairman of the New Mexico Bush-Cheney re-election campaign, who proudly admits to being made chair in order to deliver Bernalillo County for Bush-Cheney, calls those errors evidence of massive and systematic voter fraud. He has already written to Iglesias, on August 5, asking that Iglesias investigate the “suspect” registration forms. Wilson’s letter to Iglesias comes less than two weeks after White’s letter. [Atlas, 2010, pp. 213]
The chief judge for the US District Court for the Northern District of California sends news articles about US Attorney for the Northern District of California Kevin Ryan (see August 2, 2002) to Associate Deputy Attorney General David Margolis. For some time, San Francisco newspapers have reported on turmoil and turnover in Ryan’s office, with several experienced prosecutors leaving, allegedly due to Ryan’s management style. The judge complains to Margolis about Ryan’s leadership style. Margolis discusses the situation with Mary Beth Buchanan, the head of the Executive Office of US Attorneys, and they decide to discuss the issue with Ryan. However, they take no immediate action. [US Department of Justice, Office of the Inspector General, 9/29/2008] Buchanan will later say: “The United States Attorney’s Office for the Northern District of California had a long history of problems. The problems in the office predated Kevin Ryan’s tenure as the United States Attorney. Shortly after Kevin Ryan became the United States Attorney, there were discussions about his management style. I don’t recall exactly when these communications came to the attention of the Executive Office. What I can tell you is that, at some point, these communications escalated, and there were letters that were sent to the deputy attorney general, there were numerous newspaper articles that appeared in the press. And after the escalation of these concerns, I meet [sic] with Kevin Ryan and his first assistant along with David Margolis in an attempt to address some of the management concerns.… I know that Kevin Ryan had a number of significant computer crime and intellectual property cases, so I think that there were certainly good things that were done in Mr. Ryan’s office.” [US House of Representatives, Committee on the Judiciary, 6/15/2007 ]
Leslie Hagen. [Source: MLive (.com)]Rumors begin swirling around the office of US Attorney Margaret Chiara of the Western District of Michigan (see November 2, 2001) that Chiara is having an untoward sexual relationship with a female Assistant US Attorney (AUSA), and as a result that AUSA is being given undue monetary awards, bonuses, and other incentives. These rumors will soon make their way to the Justice Department in Washington. The primary sources of the rumors are Joan Meyer, Chiara’s criminal chief, and her husband Lloyd Meyer, another AUSA. The AUSA in question, who will remain unnamed in a Justice Department investigation of the 2006 US Attorney purge (see December 7, 2006 and September 29, 2008) but is later identified in the press as Leslie Hagen, was hired in October 2002. She and Chiara were friends before the hiring, both having been female prosecutors, and according to Chiara, their friendship deepened once Hagen began working in the office. Both will deny having any sort of romantic or sexual liaison. Hagen is assigned to work with Joan and Lloyd Meyer in the criminal division. When she joined the staff, Hagen lived in the eastern part of the state, and had a long drive to and from work. Occasionally she stayed overnight in a basement apartment in Chiara’s house in Lansing to cut down on the commute. She obtained her own apartment in 2003, but sometimes stayed at Chiara’s house to take care of Chiara’s dog when Chiara was out of town. Chiara will confirm that Hagen is the only one of her employees to ever stay overnight at her home. Both Chiara and Hagen will confirm that they occasionally traveled together on business relating to Chiara’s position on the Native American Issues Subcommittee of the Attorney General’s Advisory Committee (AGAC). They took a vacation day during one such trip in Seattle, and Hagen has stayed at Chiara’s house in South Carolina on a few occasions. In mid-July 2004, Chiara was given her first EARS (Evaluation and Review Staff) performance evaluation, a mandated Justice Department review (see July 12-16, 2004). A First Assistant US Attorney (FAUSA) from another office headed the evaluation team. He and his team extensively interviewed almost all of Chiara’s staff. The review was generally positive, but the FAUSA will later recall hearing a vague rumor about a liaison between Chiara and an AUSA. He did not report it on his evaluation, but he may, he will later recall, have told the EARS staff in the Executive Office of US Attorneys (EOUSA) in Washington about it. Lloyd Meyer will admit to telling the rumor to the EARS team, and he will state that many AUSAs had told the EARS team the same rumor. The EARS team heard several complaints about inequitable distribution of awards and incentives, some centering on Hagen. The EARS team leader reviewed the awards and found them justified. Chiara’s FAUSA, Phillip Green, will tell Justice Department investigators that the rumors about Chiara and Hagen begin to permeate the office in the fall of 2004, and says Joan and Lloyd Meyer are primarily responsible for them. According to Green, Lloyd Meyer “went ballistic” after nominating himself for a EOUSA award and losing it—by an EOUSA decision—to Hagen. Green is certain Meyer began spreading the rumors after losing the award and telling staff members that Chiara “pulled strings” at EOUSA to make sure Hagen received the award. Hagen will say it is about this time that Meyer begins a “campaign” to drive her out of the office. Joan Meyer, Green will say, is going along with her husband, who is the primary source of the rumors, though she believes the rumors as well. When the Justice Department investigators interview Joan Meyer, she will admit to having no direct knowledge of any affair, but will cite the fact that the two drove to and from work together and she had “been noticing situations,” “putting two and two together,” “talking to people,” and the like. Joan Meyer complains to Green that Hagen had won a “huge award” of some $20,000, a complaint Green will say is entirely false. Chiara changed the bonus award process in the spring to give bonuses only to employees who received “outstanding” performance evaluations for the previous year, shutting some staff members out of the bonus process and fueling the perception among some that the bonuses were being awarded unfairly. An allegation in December 2004 that Chiara unfairly gave Hagen a time-off award fuels the rumors in the office even more; the award comes after Hagen completes an arduous trial, and her colleagues in the trial also receive time-off awards. Other rumors, such as that Chiara unfairly gives Hagen the “lion’s share” of bonus money, prove false upon Justice Department review of the office financial records. Moreover, Green, not Chiara, makes the bonus determinations. Jane Meyer confronts Chiara over the rumors of her “relationship” with Hagen in early 2005, shortly after Chiara elevates her to criminal chief. Chiara answers that she has no business asking her such questions, that it would be impossible for her to properly supervise Hagen if they were in a relationship, and the question is irrelevant to the business of the office. Chiara will say that by the middle of 2005, the Meyers have created a “reign of terror” in the office to the point where the office is a “disaster.” Lloyd Meyer is detailed to a position in the Justice Department’s Office of Legal Policy in June 2005, blaming Chiara for creating an “intolerable” climate in the office (see September 2005). In October 2005, Hagen is detailed to a position in EOUSA. The false rumors and allegations will become part of the basis for Chiara’s firing in December 2006. [Los Angeles Times, 7/29/2008; US Department of Justice, Office of the Inspector General, 9/29/2008]
Sometime during this month, former White House press secretary Ari Fleischer testifies a third time to FBI agents as part of the Justice Department’s invesigation into the Plame Wilson identity leak (see February 13, 2004 and June 10, 2004). (In his 2007 testimony in the Lewis Libby perjury trial, Fleischer will claim to have been interviewed three times: January 2004, February 2004, and September 2004. At that time, it will be unclear whether Fleischer is misremembering the dates of his interviews or if there is another reason why his dates do not jibe with the facts.) [Marcy Wheeler, 1/29/2009]
The US Attorney’s Office (USAO) of New Mexico, headed by David Iglesias (see October 18, 2001), announces the formation of a state and federal task force to address the issue of voter fraud in the state. Iglesias forms the task force in part because of complaints by Republican lawmakers and state party officials about what they term “rampant” voter fraud in the state that is, they say, affecting elections (see August 17, 2004), and as a response to Attorney General John Ashcroft’s stated goal to ramp up voter fraud investigations throughout the nation. “It appears that mischief is afoot and questions are lurking in the shadows,” Iglesias tells local reporters.
'Suspicious' Registration Forms - According to Nancy Scott-Finan of the Justice Department’s Office of Legal Affairs, Iglesias opens the task force after hearing from Bernalillo County Clerk Mary Herrara, a Democrat, who wanted to discuss some 3,000 “suspicious resignations” with him. He has also received a letter from Bernalillo County Sheriff Darren White, a Republican, about “thousands” of “questionable” voter registrations—the same 3,000 “suspect” forms—turned in by voter-outreach groups working primarily on behalf of Democrats. (Iglesias was invited to take part in what New Mexico Republican Party Chairman Allen Weh called “the [New Mexico Republican P]arty’s voter fraud working group” a month ago, but declined. Weh forwarded the invitation to a number of prominent New Mexico Republicans, including Senator Pete Domenici, Representative Heather Wilson—see August 17, 2004—and others. Domenici’s chief of staff Steve Bell called the issue a “critical matter.” Iglesias did not join the group, and no evidence exists that the group was actually formed.) Iglesias wants to avoid the perception of partisanship in his task force, so aside from Republicans on his task force, he asks Secretary of State Rebecca Vigil-Giron (D-NM) to join; she assigns a member of her office to serve in the organization. Officials from the New Mexico Department of Public Safety (the state’s law enforcement agency), the US Veteran’s Administration Inspector General’s Office, the FBI, and the Justice Department’s Public Integrity Section (PIN) also agree to participate. Two days after the announcement, Iglesias announces that a voter fraud hotline for the task force has been activated, and says that all allegations of fraud will be thoroughly investigated. Rumaldo Armijo, Iglesias’s executive assistant, and two other Assistant US Attorneys are assigned to the task force.
New Mexico Republicans Critical of Task Force - However, some New Mexico Republicans complain that the task force’s bipartisanship renders it useless. Mickey Barnett, a powerful state Republican, writes an email to Iglesias informing him that “[m]ost of us think a task force is a joke and unlikely to make any citizen believe our elections and voter registrations are honest.” New Mexico attorney Patrick Rogers, another prominent state Republican, says of the State Department representative that he has “includ[ed] the target on the task force.” White, the co-chair of the Bush-Cheney re-election campaign in New Mexico who will later tell reporters he was brought on by the Bush-Cheney campaign in order to help win Bernalillo County, later says he would have preferred the USAO to investigate and prosecute cases without the involvement of state agencies, and he believed Iglesias’s concerns about bipartisanship to be misguided. Vigil-Giron will also question the task force, saying: “This is just an attempt to let people know that Big Brother is watching. It may well be aimed at trying to keep people away from the polls.” Iglesias meets with the task force members several times before the November 2 elections, and reminds them that Justice Department policy forbids his office from indicting people on voter fraud charges before upcoming elections, in order to avoid the perception that the indictments are being filed to impact the elections.
Almost All Complaints Minor, No Criminal Cases Developed - Almost all of the complaints received by the task force are quite minor—complaints of yard signs being stolen, harassing phone calls, and non-criminal registration issues. These complaints are forwarded to local election officials. Several more serious complaints, including the complaints from Republican lawmakers and state officials, are forwarded to either the FBI or the Department of Public Safety. Iglesias will say that when he began the task force, he thought it would develop cases worth prosecuting, but after months of work, he found that it was unable to develop a single criminal case. The task force will stop meeting after the November elections and will conclude its efforts in January 2005, but will not officially disband until 2006, after the FBI completes the last of its investigations. The Justice Department will recognize Iglesias’s task force as an example to other offices as to how voter fraud investigations should be handled, and Iglesias will give an address to a department-sponsored symposium on voter integrity (see October 2005). [Washington Post, 9/20/2004; US House of Representatives, Committee on the Judiciary, 4/13/2007 ; US Department of Justice, Office of the Inspector General, 9/29/2008; Atlas, 2010, pp. 213-216] On September 30, Senator Jeff Bingaman (D-NM) calls the Justice Department to ask about Iglesias’s task force. He speaks with Assistant Attorney General William Moschella. He says he is concerned about voter intimidation, and says he has heard no allegations of widespread voter fraud. He also says the local FBI told him the task force “was on thin ice,” apparently meaning that it is not finding anything of consequence. [US House of Representatives, Committee on the Judiciary, 4/13/2007 ]
Iglesias Refused 'Show Trials,' Says Reporter - Investigative reporter Greg Palast will say of Iglesias’s voter fraud task force: “That’s where Iglesias drew the line in the sand. He said a press conference is one thing, which he probably shouldn’t have done, but literally handcuffing innocent voters for show trials—and then, of course, then you drop the case later—that is one thing he absolutely was not going to do.” [Democracy Now!, 5/14/2007]
Entity Tags: Jeff Bingaman, William E. Moschella, Heather A. Wilson, David C. Iglesias, Darren White, Allen Weh, US Department of Justice, Greg Palast, Steve Bell, Rebecca Vigil-Giron, Nancy Scott-Finan, Mickey Barnett, Mary Herrara, New Mexico Republican Party, Pietro V. (“Pete”) Domenici, John Ashcroft, Rumaldo Armijo, Patrick Rogers
Timeline Tags: Civil Liberties
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