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US Civil Liberties

Expansion of Presidential Power/ Unitary Executive Theory

Project: US Civil Liberties
Open-Content project managed by Paul, KJF, mtuck, paxvector

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Author and reporter Charlie Savage observes that the Bush administration went far beyond the Reagan-era vision of a “unitary executive” (see April 30, 1986). He writes that the administration decided early on—perhaps before taking office in January 2001—to combine the “unitary executive” theory with the older concept of the “inherent powers” of the presidency (see 1901-1909 and June 30, 1950). Savage writes: “The new and improved Unitary Executive Theory said that Congress could not regulate any executive power, but the theory said nothing about the potential scope of such power. When fused, the two theories transformed any conceivably inherent executive power into an exclusive one. The president could do virtually anything, without any check by Congress.” Savage notes that most legal experts from across the political spectrum have roundly rejected both theories, as has the Supreme Court (see June 2, 1952 and June 1988). “The Bush-Cheney administration legal team regularly ignored the existence of such precedents in its secret advisory opinions” (see November 16-17, 1987 and September 25, 2001). The Bush administration also used an unusual reading of Alexander Hamilton’s discussion of the executive branch’s “unity” in the Federalist Papers, article 70, in which Hamilton advocated that the president’s powers should not be limited by a body of lawmakers. As Savage points out, most legal scholars call this reading “extremely misleading,” and note that Hamilton was writing about the Founding Fathers’ decision to have a single president instead of an executive committee. In fact, Hamilton explicitly repudiated the idea of a “unitary executive” in Federalist 69. Savage writes: “Over and over again, the presidentialists’ most important legal writings failed to make any mention of Federalist 69, even as they selectively quoted tidbits of Federalist 70—and quoted them out of context—as proof for their power to act beyond the limits of statutes passed by Congress.” Conservative law professor Richard Epstein calls the Bush administration’s legal theory “just wrong,” and its lawyers’ failure to acknowledge Federalist 69 “scandalous.” Epstein says: “How can you not talk about Federalist 69? All you have to do is go on Google and put in ‘Federalist Papers’ and ‘commander in chief,’ and it pops up.” [Savage, 2007, pp. 124-127]

Entity Tags: Charlie Savage, Richard Epstein, Bush administration (43)

Category Tags: Expansion of Presidential Power

President Bush has abused his prerogative to issue “signing statements” that state the White House’s interpretion of Congressionally passed laws (see Early 2005), according to former White House counsel John Dean and constitutional law professor Laurence Tribe.
History - Signing statements have no weight in law, but presidents have traditionally used them to state their belief that a particular legislative provision is unconstitutional, and on rare occasion (before the current president) to state their refusal to enforce that provision. Since Jimmy Carter’s administration, various Justice Department officials have said presidents can refuse to enforce a particular provision of signed, legally binding legislation. [Dean, 2007, pp. 112-116] A group of young conservative lawyers in the Reagan administration decided that signing statements were a powerful, and stealthy, way to expand presidential power.
Dean: Bush's Use of Signing Statements 'Extraordinary' - However, Dean says that Bush has used signing statements far more extensively than any president before him. Dean notes that, while presidential signing statements themselves are not illegal or inherently wrong, “[i]t is Bush’s abuse of them that is extraordinary.” Dean writes there has been no concerted effort to find out if Bush is just saying he will not comply with the inordinate number of legislative provisions he has objected to, or if he is refusing to comply with them in practice. If the latter is the case, Dean writes, “he should be impeached immediately… because it would be an extraordinary breach of his oath” of office.
Tribe: Bush's Signing Statements 'Bizarre,' 'Reckless' - Dean cites Tribe, who said in 2006, “[W]hat is new and distressing [about Bush’s use of signing statements] is the bizarre, frighteningly self-serving, and constitutionally reckless character of those views—and the suspicion that the president either intends actually to act on them with some regularity, often in a manner that won’t be publicly visible at the time, or intends them as declarations of hegemony and contempt for the coordinate branches—declarations that he hopes will gradually come to be accepted in the constitutional culture as descriptions of the legal and political landscape properly conceived and as precedents for later action either by his own or by future administrations.” [Dean, 2007, pp. 112-116; Joyce Green, 2007] Political science professor Christopher Kelley agrees. Kelley, who studied the Bush administration’s use of signing statements, says: “What we haven’t seen until this administration is the sheer number of objections that are being raised on every bill passed through the White House. That is what is staggering. The numbers are well out of the norm from any previous administration.”
Signing Statements Supplanting Vetoes - In another disturbing trend, according to author and reporter Charlie Savage, Bush is using signing statements to supplant the traditional presidential veto. By mid-2007, Bush had vetoed just two bills. In contrast, Bush’s predecessor, Bill Clinton, vetoed 37 bills. George H. W. Bush vetoed 44, and Ronald Reagan vetoed 78. Legal experts studying Bush’s signing statements conclude that Bush and his legal team are using signing statements to function almost as line-item vetoes, a power the president does not have. The Supreme Court ruled in 1998 that the Founding Fathers wanted the president to either accept a Congressional bill or reject it entirely, and if Congress overrode the veto, then the president had no other recourse than to follow the new law. But now, Savage writes, “the Bush-Cheney administration had figured out that if a president signed a bill and then instructed the government to consider selected provisions null (see December 30, 2005), he could accomplish much the same thing. Moreover, it was an absolute power because, unlike when there is a regular veto, Congress had no opportunity to override his legal judgments.” [Savage, 2007, pp. 230-231]

Entity Tags: Laurence Tribe, John Dean, US Department of Justice, George W. Bush, Charlie Savage, James Earl “Jimmy” Carter, Jr., Christopher Kelley

Category Tags: Expansion of Presidential Power, Signing Statements

Jack Goldsmith’s ‘The Terror Presidency.’Jack Goldsmith’s ‘The Terror Presidency.’ [Source: Barnes and Noble.com]Jack Goldsmith, the head of the Justice Department’s Office of Legal Counsel (OLC) from October 2003 through June 2004, is publishing a new book, The Terror Presidency, in which he details many of the controversies in which he found himself mired during his brief and stormy tenure. Goldsmith was viewed, along with his friend and fellow law professor John Yoo, as two of the department’s newest and brightest conservative stars; the two were called the “New Sovereigntists” by the prestigious political journal Foreign Affairs. But instead of adding his voice to others in the Bush administration who supported the expanding powers of the presidency at the cost of civil liberties, Goldsmith found himself at odds with Yoo, White House counsel Alberto Gonzales, and other White House and Justice Department officials. The OLC advises the president on the limits of executive power (and finds legal justifications for its actions as well), and Goldsmith became embattled in disputes with the White House over the Bush administration’s systematic attempts to push the boundaries of executive power almost from the onset of his term as OLC chief, especially in light of the administration’s responses to 9/11 and the threat of Islamist terrorism (see October 6, 2003). Goldsmith disagreed with the White House over issues surrounding the use of torture against terrorist suspects (see December 2003-June 2004), the NSA’s secret domestic wiretapping program (see June 17, 2004), the extra-constitutional detention and trial of enemy combatants (see January-June 2004), and other issues.
'Behind-the-Scenes Revolt' - After nine contentious months leading 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 resigned. He says of his mindset at the end of his term, “I was disgusted with the whole process and fed up and exhausted.” Goldsmith chose to remain quiet about his resignation, and as a result, his silence was widely misinterpreted by media, legal, and administration observers. Some even felt that Goldsmith should be investigated for his supposed role in drafting the torture memos he had actually opposed. “It was a nightmare,” Goldsmith recalls. “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]
Not a Whistleblower - Goldsmith, who now teaches law at Harvard, does not regard himself as a whistleblower. “This book is not about whistle blowing,” he says. “It’s about trying to explain to the public the enormous pressures and tensions inside the executive branch to keep Americans safe and about how that pressure bumps into the wall, and about the difficulties that everyone in the administration has and the pressure to do everything possible to keep Americans safe, and the intense pressure to comply with the law. And it’s an attempt to give a fair-minded and deeply sympathetic description of that tension, and I actually think there’s a structural problem in the presidency because of this, and I’m trying to explain the pressure the administration is under and why it did the things it did, and why it did things correctly in some circumstances and why it made mistakes.” He says he has learned some difficult lessons from his tenure in Washington: “I came away from my time in government thinking, as many people do, that there’s too much secrecy. Both too much secrecy inside the executive branch and between the executive branch and Congress. There’s obviously a trade-off and it’s hard to know when to draw the line. If issues and debates are too tightly drawn, and there’s too much secrecy, then two pathologies occur and we saw them occur in this administration. One is you don’t have the wide-range debate needed to help you avoid errors. Two is, it’s pretty well known that excessive secrecy leaves other people in the government to question what is going on when they get wind of it, and to leak it.” [Newsweek, 9/8/2007]
Bush, Administration Officials Going Too Far in Placing Politics Above Law - Goldsmith believes that Bush and his officials are their own worst enemies in their attempts to expand presidential power. Goldsmith, like his heroes Abraham Lincoln and Franklin D. Roosevelt, regards the law as secondary to political leadership. Bush’s indifference and even contempt for the political process has weakened his abilities as a wartime leader, in direct contrast to Lincoln and Roosevelt. “I don’t know if President Bush understood how extreme some of the arguments were about executive power that some people in his administration were making,” Goldsmith says. Since Bush is not a lawyer, “[i]t’s hard to know how he would know.” Bush’s refusal to work with Congress is in direct contradiction to Lincoln’s and Roosevelt’s approaches, and that refusal has damaged his administration’s ability to combat terrorism and achieve its agenda. Goldsmith writes that Bush has willfully ignored the axiom that the strongest presidential power is the power to persuade. “The Bush administration has operated on an entirely different concept of power that relies on minimal deliberation, unilateral action and legalistic defense,” Goldsmith writes. “This approach largely eschews politics: the need to explain, to justify, to convince, to get people on board, to compromise.” While Goldsmith agrees with the administration that the terrorist threat is extremely serious, and that the US must counter it aggressively, he quotes his conservative Harvard colleague Charles Fried that Bush “badly overplayed a winning hand.” Bush “could have achieved all that he wanted to achieve, and put it on a firmer foundation, if he had been willing to reach out to other institutions of government.” Instead, he says, Bush weakened the presidency he was so determined to strengthen. “I don’t think any president in the near future can have the same attitude toward executive power, because the other institutions of government won’t allow it. The Bush administration has borrowed its power against future presidents.” [New York Times Magazine, 9/9/2007]
Adding to Presidential Power - He adds, “Basically, the administration has the conception of executive power that suggests they clearly have a public agenda item of wanting to leave the presidency more powerful than they found it. Vice President Cheney was in the Ford White House at the dawn of the resurgent Congress after Watergate and Vietnam and he believed then that the 1970s restrictions put on the executive branch by Congress related to war and intelligence harm the presidency. So one of their agenda items before 9/11 was to keep the power of presidency and expand the power of the presidency to put it back to its rightful place.… They’ve certainly lost a lot of trust of Congress. And the Supreme Court really, I think, cut back on certain presidential prerogatives.… Future presidencies will face a culture of distrust and worry, I believe, because of the actions taken by the Bush administration. A lot of it was unnecessary.… So when you have those pressures [to battle terrorism and keep the nation safe] and then you run into laws that don’t allow you to do what you need to do, I think the prescription is that going it alone unilaterally with executive power is not as good as getting the other institutions on board through consensus and consultation.” [Newsweek, 9/8/2007]

Entity Tags: Charles Fried, Bush administration (43), Abraham Lincoln, US Department of Justice, Office of Legal Counsel (DOJ), Jeffrey Rosen, Alberto R. Gonzales, George W. Bush, Jack Goldsmith, John C. Yoo, Franklin Delano Roosevelt

Category Tags: Expansion of Presidential Power, Privacy, Impositions on Rights and Freedoms, Government Acting in Secret, Government Classification, NSA Wiretapping / Stellar Wind

The Justice Department’s Brian Benczkowski answers Senator Ron Wyden (D-OR)‘s request for clarification of the terms “humane treatment” and “cruel, inhuman, and degrading treatment” as it applies to suspected terrorists in US custody. Benczkowski writes that the government uses the Military Commissions Act (MCA) (see October 17, 2006) and a recent executive order, Order #13440 (authorizing the continued use of harsh interrogation methods—see July 20, 2007) to determine how the US will comply with the Geneva Conventions. Benczkowski writes that Order 13440 and the Army Field Manual, among other guidelines, ensure that any interrogations carried out by US personnel comply with Geneva.
Geneva Does Not Clearly Define 'Humane Treatment' - He goes on to note that the term “humane treatment” is not directly defined by Geneva, but “rather provides content by enumerating the specific prohibitions that would contravene that standard.” Common Article 3, the statute in the Conventions that specifically addresses the treatment of prisoners, expressly prohibits “violence” including “murder of all kinds, mutilation, cruel treatment and torture.” It also prohibits “outrages upon personal dignity,” including “humiliating and degrading treatment.” Benczkowski writes that there is no accepted international standard as to what is defined as “humane treatment” and what is not, outside of the basic provisions of food, water, clothing, shelter, and protection from extremes of temperature. Given this standard, he writes, the Bush administration does ensure that “all detainees within the CIA program shall be treated humanely.”
Defined by Circumstances - He goes on to note that Geneva seems to grant some leeway for interpretation as to what complies with its standards, particularly in the area of “outrages upon personal dignity.” Citing a previous international tribunal, he writes, “To rise to the level of an outrage, the conduct must be ‘animated by contempt for the human dignity of another person’ and it must be so deplorable that the reasonable observer would recognize it as something that must be universally condemned.” None of the methods used by US interrogators contravenes any of these standards as the Justice Department interprets them, Benczkowski concludes. As for the question of “cruel, inhuman and degrading treatment,” or as he abbreviates it, “CIDT,” Benczkowski writes that such treatment is prohibited by the Fifth, Eighth, and Fourteenth Amendments to the US Constitution. However, circumstances determine what is and is not CIDT, he writes; even “in evaluating whether a homicide violates Common Article 3, it would be necessary to consider the circumstances surrounding the act.” The CIA interrogation program fully complies with Common Article 3, various statutes and Supreme Court decisions, and the Bill of Rights, Benczkowski asserts. [US Department of Justice, 9/27/2007 pdf file]

Entity Tags: US Department of Justice, Brian A. Benczkowski, Bush administration (43), Central Intelligence Agency, Geneva Conventions, Ron Wyden, Military Commissions Act

Timeline Tags: Torture of US Captives

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Gov't Violations of Prisoner Rights

The New York Times reveals that the Justice Department issued two secret rulings authorizing far more extensive use of torture and abuse during the interrogation of terror suspects than has previously been acknowledged by the White House (see February 2005 and Late 2005). The White House’s deputy press secretary, Tony Fratto, makes the same counterclaim that Bush officials have made for years, saying, “We have gone to great lengths, including statutory efforts and the recent executive order, to make it clear that the intelligence community and our practices fall within US law” and international agreements. But that claim is countered by the statements of over two dozen current and former officials involved in counterterrorism. When Attorney General Alberto Gonzales resigned in September after accusations of misleading Congress and the public on a wide array of issues, he said in his farewell speech that the Justice Department is a “place of inspiration” that had balanced the necessary flexibility to pursue the administration’s war on terrorism with the need to uphold the law and respect civil liberties (see July 25, 2007). But many of Gonzales’s associates at the Justice Department now say that Gonzales was usually compliant with the wishes of Vice President Cheney and Cheney’s chief counsel and adviser, David Addington, to endorse whatever interrogation policies the White House wished in the name of protecting the nation, no matter what conflicts may arise with US and international law or whatever criticisms from other governments, Congressional Democrats, or human rights groups may ensue. Critics, including many of the officials now speaking out, say that Gonzales turned the Justice Department from the independent law enforcement arm of the US government into just another arm of the White House. [New York Times, 10/4/2007]

Entity Tags: Alberto R. Gonzales, Bush administration (43), David S. Addington, New York Times, US Department of Justice, Richard (“Dick”) Cheney, Tony Fratto

Timeline Tags: Torture of US Captives

Category Tags: Gov't Violations of Prisoner Rights, Impositions on Rights and Freedoms, Expansion of Presidential Power

Three top Senate Democrats on the Judiciary Committee, Edward Kennedy (D-MA), Richard Durbin (D-IL), and Russell Feingold (D-WI) send a letter to President Bush urging him to withdraw acting Office of Legal Counsel (OLC) head Steven Bradbury from consideration for the position. Since Bradbury’s ascension to the post on an acting basis over two years ago (see June 23, 2005), Democrats have blocked him from being given confirmation hearings and formally becoming the head of the office. The senators write that they are troubled by Bradbury’s support for the administration’s position on aggressive interrogation of terror suspects and the NSA’s warrantless wiretapping program. They note that Bradbury was involved in the denial of security clearances to members from the Office of Professional Responsibility who attempted to investigate the program (see Late April 2006). “With Alberto Gonzales’s resignation,” the letter reads, “there may be an opportunity to undo some of the damage done during his tenure. It is doubtful that progress will be possible without new leadership at OLC.” Durbin says in a press conference, “I think we need new leadership at the Justice Department’s Office of Legal Counsel.… OLC is a small office, but it really has a lot of power, especially in this administration.” [Senate Judiciary Committee, 10/16/2007 pdf file; Think Progress, 10/16/2007]

Entity Tags: Richard (“Dick”) Durbin, Edward M. (“Ted”) Kennedy, Office of Legal Counsel (DOJ), Senate Judiciary Committee, Steven Bradbury, Russell D. Feingold, Terrorist Surveillance Program, George W. Bush

Category Tags: Expansion of Presidential Power, NSA Wiretapping / Stellar Wind

Administration of Torture book cover.Administration of Torture book cover. [Source: Public domain]American Civil Liberties Union (ACLU) lawyers Jameel Jaffer and Amrit Singh publish the book Administration of Torture: A Documentary Record from Washington to Abu Ghraib and Beyond. In their book, Jaffer and Singh use over 100,000 pages of government documents obtained through the Freedom of Information Act to detail the sometimes-horrific conditions under which suspected terrorists are detained by the US government. The book spans detention facilities in Afghanistan, Iraq, and Guantanamo Bay. The book’s central thesis is, according to the ACLU’s press release for the book, “that the torture and abuse of prisoners was systemic and resulted from decisions made by senior US officials, both military and civilian,” including President Bush himself. [American Civil Liberties Union, 10/22/2007] “[T]he documents show unambiguously that the administration has adopted some of the methods of the most tyrannical regimes,” write Jaffer and Singh. Some of the prisoners “abused, tortured, and killed” were not even terror suspects, the authors show. [Raw Story, 10/22/2007] The book grew out of a long, difficult battle by the ACLU and several other such organizations to secure records pertaining to detainees held by the US in other countries (see October 7, 2003). The book shows a starkly different reality than the picture painted by the Bush administration’s repeated disavowals of torture, a reality established by the government’s own documentation. The administration has repeatedly claimed, for instance, that the torture and abuse so well documented at Baghdad’s Abu Ghraib prison was an isolated, unusual set of incidents that was not repeated at other US detention facilities. The documentation compiled by Jaffer and Singh prove that claim to be a lie: “This claim was completely false, and senior officials almost certainly knew it to be so.” Beatings, kickings, and all manner of abuses have routinely occurred at other detention facilities in Afghanistan and Iraq, the book states. Autopsy reports show that numerous prisoners in US custody have died due to strangulation, suffocation, or blunt-force trauma. Documents from Guantanamo, a facility where Bush officials have repeatedly claimed that the “excesses” of Abu Ghraib were never implemented, show that Guantanamo detainees were regularly “shackled in excruciating ‘stress positions,’ held in freezing-cold cells, forcibly stripped, hooded, terrorized with military dogs, and deprived of human contact for months.” And, perhaps most damningly for the administration, government documents show that top White House and Pentagon officials were not only well aware of the scope of the abuse months before the first pictures from Abu Ghraib were broadcast to the public, but that torture and abuse are part of the administration’s policy towards detainees. “[T]he maltreatment of prisoners resulted in large part from decisions made by senior officials, both military and civilian,” Jaffer and Singh write. “These decisions… were reaffirmed repeatedly, even in the face of complaints from law enforcement and military personnel that the policies were illegal and ineffective, and even after countless prisoners… were abused, tortured, or killed in custody.… The documents show that senior officials endorsed the abuse of prisoners as a matter of policy—sometimes by tolerating it, sometimes by encouraging it, and sometimes by expressly authorizing it.”
bullet The book presents a number of damning claims, all backed by extensive documentation, including the following: [American Civil Liberties Union, 10/22/2007]
bullet General Michael Dunlavey, who oversaw prisoner interrogations at Guantanamo and considered former camp commander Brigadier General Rick Baccus too soft on the detainees [BBC, 10/16/2002] , and who asked the Pentagon to approve more aggressive interrogation methods for the camp, claimed that he received his “marching orders” from Bush.
bullet Then-Defense Secretary Donald Rumsfeld was “personally involved” in overseeing the interrogation of a Guantanamo prisoner named Mohammed al-Khatani, the alleged would-be 20th 9/11 hijacker (see July 2002). Al-Khatani was “stripped naked, paraded in front of female interrogators, made to wear women’s underwear on his head, led around on a leash, and forced to perform dog tricks.” It is not clear just what being “personally involved” entails. Rumsfeld did not himself authorize such methods, but according to the investigator who documented the al-Khatani abuse session, Rumsfeld “failed to place a ‘throttle’ over abusive ‘applications’ of the ‘broad techniques’ that he did authorize….”
bullet Interrogators who used abusive ‘SERE’ (Survival, Evasion, Resistance, Escape) methods at Guantanamo did so because the Pentagon had endorsed those methods and required interrogators to be trained in the use of those methods (see December 2001).
bullet FBI personnel complained of abuses at Guantanamo; these instances of abuse were authorized by the chain of command within the Defense Department.
bullet Some of the most disturbing interrogation methodologies displayed in photos from Abu Ghraib were used at Guantanamo, with the endorsement of Rumsfeld, and that Major General Geoffrey Miller’s aggressive plan to “Gitmoize” Abu Ghraib was endorsed by senior Defense officials.
bullet Bush and his senior officials have always insisted that abuse and torture was limited to a few unauthorized soldiers at Abu Ghraib. Yet a Defense Department “Information Paper” shows that, three weeks before the Abu Ghraib photos appeared in the press, the US Army knew of at least 62 allegations of prisoner abuse in Afghanistan and Iraq, most of which had no relation to Abu Ghraib.
bullet The Defense Department held prisoners as young as 12 years old.
bullet The Defense Department approved holding prisoners in cells as small as 3 feet wide, 4 feet long, and 18 inches high. Special Forces units held prisoners in cells only slightly larger than that. [American Civil Liberties Union, 10/22/2007]

Entity Tags: US Department of Defense, Rick Baccus, Mohamed al-Khatani, Michael E. Dunlavey, Geoffrey D. Miller, George W. Bush, American Civil Liberties Union, Jameel Jaffer, Amrit Singh, Donald Rumsfeld, Bush administration (43), Federal Bureau of Investigation

Timeline Tags: Torture of US Captives

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Gov't Violations of Prisoner Rights

In a blistering editorial, the New York Times lambasts both the Bush administration and the Democratic leadership in the Senate for allowing Michael Mukasey, the new attorney general, to slide through the confirmation process with so little challenge (see November 8, 2007). The only thing left in the Senate’s traditional responsibility of “advice and consent” is the “consent” part, the editors write. The editorial continues: “Once upon a time, the confirmation of major presidential appointments played out on several levels—starting, of course, with politics. It was assumed that a president would choose like-minded people as cabinet members and for other jobs requiring Senate approval. There was a presumption that he should be allowed his choices, all other things being equal. Before George W. Bush’s presidency, those other things actually counted. Was the nominee truly qualified, with a professional background worthy of the job? Would he discharge his duties fairly and honorably, upholding his oath to protect the Constitution? Even though [he or] she answers to the president, would the nominee represent all Americans? Would he or she respect the power of Congress to supervise the executive branch, and the power of the courts to enforce the rule of law? In less than seven years, Mr. Bush has managed to boil that list down to its least common denominator: the president should get his choices.” The Times observes that in the first six years of Bush’s rule, he had an enthusiastically compliant set of Republican allies in Congress, but during that time, minority Democrats “did almost nothing… to demand better nominees than Mr. Bush was sending up. And now that they have attained the majority, they are not doing any better.” The editors focus particularly on two issues: Mukasey’s refusal to answer straightforward questions on whether waterboarding is torture, and the Democrats’ refusal to filibuster the Senate vote. The Times notes that Mukasey passed confirmation with a 53-40 vote. Democrats have made what the Times calls “excuses for their sorry record” on a host of issues, and first and foremost is the justification that it takes 60 votes to break a filibuster. “So why did Mr. Mukasey get by with only 53 votes?” the Times asks. “Given the success the Republicans have had in blocking action when the Democrats cannot muster 60 votes, the main culprit appears to be the Democratic leadership, which seems uninterested in or incapable of standing up to Mr. Bush.” The editors do not accept the rationale of Mukasey supporters like Charles Schumer (D-NY), who argued that by not confirming Mukasey, the path would be clear for Bush to make an interim appointment of someone far more extreme. The Times calls this line of argument “cozy rationalization,” and by Mukasey’s refusal to answer questions about his position on waterboarding, he has already aligned himself with the extremist wing of the administration. For the record, the Times notes, “Waterboarding is specifically banned by the Army Field Manual, and it is plainly illegal under the federal Anti-Torture Act, federal assault statutes, the Detainee Treatment Act (see December 30, 2005), the Convention Against Torture (see October 21, 1994), and the Geneva Conventions.” Therefore, “[i]t is hard to see how any nominee worthy of the position of attorney general could fail to answer ‘yes.’” The Times speculates that Mukasey was not permitted to answer the question by the White House because a “no” answer “might subject federal officials who carried out Mr. Bush’s orders to abuse and torture prisoners after the 9/11 attacks: the right answer could have exposed them to criminal sanctions.” All in all, the Times is appalled by “the Senate giving the job of attorney general, chief law enforcement officer in the world’s oldest democracy, to a man who does not even have the integrity to take a stand against torture.” [New York Times, 11/11/2007]

Entity Tags: Michael Mukasey, New York Times, Geneva Conventions, Bush administration (43), Charles Schumer, George W. Bush, Convention Against Torture, Detainee Treatment Act

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Gov't Violations of Prisoner Rights, Government Acting in Secret, NSA Wiretapping / Stellar Wind, Detainee Treatment Act, Media Involvement and Responses

Michael McConnell, the director of national intelligence, writes an op-ed for the New York Times pushing for Congressional immunity for US telecommunications firms over their cooperation with the NSA’s warrantless wiretapping program. Under August’s Protect America Act, McConnell writes, the country is “safer” from terrorist attacks while the privacy of US citizens is protected (see August 5, 2007). The government has “greater understanding of international [al-]Qaeda networks, and the law has allowed us to obtain significant insight into terrorist planning.” But the Act expires in two months, and McConnell wants it re-enacted and significantly expanded “if we are to stay ahead of terrorists who are determined to attack the United States.” Echoing the arguments of Bush administration officials, McConnell attacks the “outdated” Foreign Intelligence Surveillance Act as significantly hindering the government’s “ability to collect timely foreign intelligence.” McConnell complains: “Our experts were diverted from tracking foreign threats to writing lengthy justifications to collect information from a person in a foreign country, simply to satisfy an outdated statute that did not reflect the ways our adversaries communicate. The judicial process intended to protect the privacy and civil liberties of Americans was applied instead to foreign intelligence targets in foreign countries. This made little sense, and the Protect America Act eliminated this problem.” McConnell calls for new legislation that would obviate the need for intelligence agencies such as the NSA to seek warrants to monitor US citizens’ telephone and e-mail communications: “The intelligence community should spend its time protecting our nation, not providing privacy protections to foreign terrorists and other diffuse international threats.” He also calls for retroactive immunity for “private parties”—i.e. the US telecommunications companies—that are subject to lawsuits over their cooperation with the NSA in monitoring US communications. “The intelligence community cannot go it alone,” he writes. “Those in the private sector who stand by us in times of national security emergencies deserve thanks, not lawsuits.” Two days later, new Attorney General Michael Mukasey will write a virtually identical op-ed for the Los Angeles Times (see December 12, 2007). [New York Times, 12/10/2007]

Entity Tags: Foreign Intelligence Surveillance Act, Bush administration (43), Mike McConnell, New York Times, Protect America Act

Category Tags: Expansion of Presidential Power, Privacy, Impositions on Rights and Freedoms, Government Acting in Secret, Government Classification, Database Programs, NSA Wiretapping / Stellar Wind

Michael Mukasey, the new Attorney General, writes an op-ed for the Los Angeles Times pushing for Congressional immunity for US telecommunications firms over their cooperation with the NSA’s warrantless wiretapping program. Mukasey supports the NSA program, echoing the administration’s long insistence that the surveillance program is “crucial” in protecting the country against terrorist attacks. He also reiterates the administration’s criticism of the “outdated” Foreign Intelligence Surveillance Act, which he says hampers the government’s ability to collect needed intelligence and does little to protect the privacy of US citizens. Mukasey calls for Congress to pass a Senate bill that would grant the telecommunications firms retroactive immunity to civil lawsuits and criminal charges surrounding their cooperation with the NSA, and would no longer require court orders for the government to “direct surveillance at foreign targets overseas”—surveillance that would target US citizens. Mukasey says the US will “need the full-hearted help of private companies in our intelligence activities; we cannot expect such cooperation to be forthcoming if we do not support companies that have helped us in the past.” Mukasey strongly opposes another Senate bill that would grant no immunity and would continue to require the government to obtain FISA Court warrants before wiretapping domestic communications. Two days earlier, the director of national intelligence, Michael McConnell, penned a virtually identical op-ed for the New York Times (see December 10, 2007). [Los Angeles Times, 12/12/2007]

Entity Tags: Foreign Intelligence Surveillance Act, Bush administration (43), Los Angeles Times, Michael Mukasey, National Security Agency

Category Tags: Expansion of Presidential Power, Privacy, Impositions on Rights and Freedoms, Government Classification, Database Programs, NSA Wiretapping / Stellar Wind

Morris Davis, the former lead prosecutor for the Guantanamo military commissions who resigned in October (see October 4, 2007), tells interviewer Dan Rather that the upcoming prosecutions at Guantanamo are largely driven by political concerns (see October 19, 2007). “I think the big fear that was expressed was if Hillary Clinton wins the White House [in 2008]—this whole show goes away, and Guantanamo is shut down.… So, there’s a distrust of the military. And you’ve got political involvement. What I’ve seen in this process is that if you combine—ya know, excessive—arrogance with excessive ignorance—you wind up with six years later with—one guilty plea done.” [Business Wire, 12/14/2007]

Entity Tags: Dan Rather, Hillary Clinton, Morris Davis

Timeline Tags: Torture of US Captives

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Gov't Violations of Prisoner Rights

Senator Ron Wyden (D-OR) replies to a letter from the Justice Department that claims the CIA’s detainee interrogation program is fully compliant with the Geneva Conventions and with US and international law (see September 27, 2007). Wyden challenges the legal rationale for the claims, noting that the cases cited do not directly apply to the question of whether the definitions of “humane treatment” and “cruel, inhuman, and degrading treatment” can vary depending on the identity of the detainee and the circumstances surrounding his interrogation. He also challenges the Justice Department’s rather narrow interpretation of the protections afforded by the Eighth Amendment and the Detainee Treatment Act (see December 30, 2005). [US Senate, 3/6/2008 pdf file]

Entity Tags: Detainee Treatment Act, US Department of Justice, Ron Wyden, Geneva Conventions

Timeline Tags: Torture of US Captives

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Gov't Violations of Prisoner Rights, Detainee Treatment Act

J. William Leonard, resigning his post as the director of the Information Security Oversight Office (ISOO) at the National Archives after 34 years of government service, says his battles with the Office of the Vice President (OVP) are a contributing factor in his decision to resign. Leonard’s office challenged Dick Cheney’s attempt to declare his office exempt from federal rules governing classified information, and in return Cheney’s chief of staff, David Addington, attempted to have ISOO abolished (see 2003 and May 29, 2007-June 7, 2007). Leonard is described by Archivist Allen Weinstein as “the gold standard of information specialists in the federal government.” Leonard says that he was “disappointed that rather than engage on the substance of an issue, some people would resort to that.” Leonard says he was frustrated when President Bush announced that he never intended for Cheney’s office to have to comply with classification reporting rules: “I’ve had 34 years of frustration. That’s life in the big city. I also accept that I’m not always right…. But this was a big thing as far as I was concerned.”
Possible Connection to Plame Affair - Leonard refuses to say whether he believes the timing of Cheney’s decision—the fall of 2003, the same time as the media began paying attention to the outing of CIA agent Valerie Plame Wilson—is significant, but “some of the things based on what I’ve read [have] given me cause for concern.” Leonard says that some of the exhibits in the trial of former Cheney chief of staff Lewis Libby were annotated “handle as SCI,” or “sensitive compartmentalized information,” including an unclassified transcript of a conversation between Cheney and his staff members about concocting a plan to respond to the media over the allegations of Wilson’s husband, Joseph Wilson.
National Security vs. National Security - Leonard believes that the government needs to “introduce a new balancing test” for deciding whether to classify information. “In the past, we’ve looked at it as, ‘we have to balance national security against the public’s right to know or whatever.’ My balancing test would be national security versus national security: yes, disclosing information may cause damage, but you know what, withholding that information may even cause greater damage…. And I don’t think we sufficiently take[…] that into greater account. The global struggle that we’re engaged in today is more than anything else an ideological struggle. And in my mind… that calls for greater transparency, not less transparency. We’re in a situation where we’re attempting to win over the hearts and minds of the world’s population. And yet, we seem to have a habit—when we restrict information, we’re often times find ourselves in a position where we’re ceding the playing field to the other side. We allow ourselves to be almost reduced to a caricature by taking positions on certain issues, oh, we simply can’t talk about that.” [Newsweek, 12/27/2007]

Entity Tags: Valerie Plame Wilson, Richard (“Dick”) Cheney, Office of the Vice President, Lewis (“Scooter”) Libby, Joseph C. Wilson, David S. Addington, National Archives and Records Administration, Allen Weinstein, J. William Leonard, Information Security Oversight Office, George W. Bush

Timeline Tags: Niger Uranium and Plame Outing

Category Tags: Expansion of Presidential Power, Government Acting in Secret, Government Classification

Attorney General Michael Mukasey says he will not investigate the government’s use of waterboarding. “No, I am not, for this reason: Whatever was done as part of a CIA program at the time that it was done was the subject of a [Justice Department] opinion through the Office of Legal Counsel and was found to be permissible under the law as it existed then.” [Mother Jones, 2/7/2008]

Entity Tags: Michael Mukasey

Timeline Tags: Torture of US Captives

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Gov't Violations of Prisoner Rights

Senator John McCain (R-AZ), the presumptive Republican nominee for president, urges President Bush to veto an upcoming bill prohibiting waterboarding and other extreme methods of interrogation after himself voting against the bill. The bill passes the Senate on a largely partisan 51-45 vote. It has already passed the House on a similar party-line vote, and Bush has already announced his intention to veto the bill. McCain has won a reputation as an advocate of prisoner rights and a staunch opponent of torture; his five-year stint as a POW in North Vietnam is well-known. But McCain voted against the legislation when it came up for a vote in the Senate, and he opposes the bill now. McCain says he is opposed to waterboarding, but does not want the CIA restricted to following the practices outlined in the US Army Field Manual, as the legislation would require. McCain says: “I knew I would be criticized for it. I think I can show my record is clear. I said there should be additional techniques allowed to other agencies of government as long as they were not” torture. “I was on the record as saying that they could use additional techniques as long as they were not cruel, inhumane and degrading treatment. So the vote was in keeping with my clear record of saying that they could have additional techniques, but those techniques could not violate” international rules against torture. McCain has said he believes waterboarding is already prohibited by the Detainee Treatment Act of 2005 (see December 30, 2005). And CIA director Michael Hayden has said that current law may well prohibit waterboarding; he claims to have stopped CIA agents from waterboarding detainees in 2006, and also claims that the technique was not used later than 2003. McCain’s Senate colleague, Charles Schumer (D-NY) says that if Bush vetoes the bill, then he in essence “will be voting in favor of waterboarding.” [New York Times, 2/13/2008; Associated Press, 2/21/2008] Bush will indeed veto the bill (see March 8, 2008).

Entity Tags: Detainee Treatment Act, George W. Bush, John McCain, Michael Hayden, Central Intelligence Agency, Charles Schumer

Timeline Tags: Torture of US Captives

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Gov't Violations of Prisoner Rights, Detainee Treatment Act

The House of Representatives votes to hold White House Chief of Staff Joshua Bolten and former White House counsel Harriet Miers in contempt of Congress. Bolten and Miers have refused to testify to a House committee investigating the firing of several US attorneys. Many House Republicans walk off the House floor before the vote is cast, ostensibly because they want to work on reauthorizing the Protect America Act (see August 5, 2007) rather than deal with the contempt citation. Minority Leader John Boehner complains, “We have space on the calendar today for a politically charged fishing expedition, but no space for a bill that would protect the American people from terrorists who want to kill us.” [Associated Press, 2/14/2008] “We will not stand for this, and we will not stay for this. And I would ask my House Republican colleagues and those who believe we should be protecting the American people, to not vote on this bill. Let’s just get up and leave.” [Think Progress, 2/14/2008] (Before they walk out, Lincoln Diaz-Balart (R-FL) attempts to disrupt the memorial service for the recently deceased Tom Lantos (D-CA), taking place in Statuary Hall just a few steps from the House chambers, by calling for a procedural vote during the memorial service. An MSNBC reporter says Diaz-Balart’s action is apparently the result of “pique.”) [MSNBC, 2/14/2008] The contempt citation will be forwarded to the US Attorney for the District of Columbia. The two resolutions passed hold Bolten and Miers in contempt, and allow for the House to file a civil suit against the Bush administration to compel the aides’ testimony. “I hope this administration will realize this Congress is serious about its constitutional role of oversight,” says House Speaker Nancy Pelosi (D-CA). Pelosi says she “had hoped that this day would never have come,” and adds that if the White House instructs Justice Department attorneys not to prosecute the contempt citations, “we will have power to go to federal court and seek civil enforcement of our subpoenas.” [The Hill, 2/14/2008; Associated Press, 2/14/2008]
White House Conditions 'Beyond Arrogance' - The White House has already said it will not allow the Justice Department to pursue the contempt charges, claiming that the information is off-limits because of executive privilege, and that Bolten and Miers are immune from prosecution. House Democrats such as Judiciary Committee chairman John Conyers (D-MI) had tried for months to work with the White House to win its approval for the aides’ testimony, but were unwilling to accept the White House’s restrictive conditions—investigators would not have been allowed to make transcripts of the testimony, to copy documents presented in the testimony, or to seek any more information after the single session. Pelosi said of the White House’s conditions, “This is beyond arrogance. It’s hubris taken to the ultimate degree.”
Republicans Say Testimony Would 'Undermine' Power of Executive Branch - Republicans such as David Dreier (R-CA) warn that such a case might “undermine the power of the first [executive] branch of government.” [The Hill, 2/14/2008; Associated Press, 2/14/2008]
Miller: Bush Attempting to 'Decide by Decree' - Representative Brad Miller (D-NC) says during the deliberations, “The president cannot decide by decree. The president cannot announce with absolute unreviewable authority what information the administration will provide or withhold. The framers of our Constitution had just fought a war against an autocratic king. It is inconceivable that they intended to create an executive branch with the power the Bush administration now claims and that the minority now supports.” [Speaker of the House, 2/14/2008]

Entity Tags: Harriet E. Miers, Bush administration (43), John Boehner, Joshua Bolten, Brad Miller, US Department of Justice, Tom Lantos, Nancy Pelosi

Category Tags: Expansion of Presidential Power, Impositions on Rights and Freedoms, Government Acting in Secret, Government Classification, 2006 US Attorney Firings

Admiral Mike McConnell, the director of national intelligence, admits during a radio interview that the main issue over the renewal of the Protect America Act (PAA) (see August 5, 2007) is not the security and safety of the nation, but the need to extend liability immunity to the nation’s telecommunications firms. In recent days, President Bush has said that unnamed terrorists are planning attacks on the US that will make 9/11 “pale by comparison,” and the only way to stop those attacks is to renew the PAA with new provisions that will grant telecommunications firms such as BellSouth, Verizon, and AT&T retroactive immunity from prosecution. Those firms are accused of illegally aiding the government in electronically monitoring the telephone and e-mail conversations of US citizens (see February 5, 2006). The PAA expires on February 16, but the government can operate under its provisions for another year. McConnell tells a National Public Radio reporter that the biggest issue surrounding the legislation is liability protection for the telecom firms. “We can’t do this mission without their help,” he says. “Currently there is no retroactive liability protection for them. They’re being sued for billions of dollars.” They did not break the law, McConnell asserts, but the lawsuits are curtailing their willingness to cooperate with the government. “The Senate committee that passed the bill examined the activities of the telecom companies and concluded they were not violating the law,” he says. By not extending retroactive immunity, McConnell says, “we’d lose the capability to protect the country.” [National Public Radio, 2/15/2008] Two days later, McConnell echoes his unusually frank admission. Interviewed on Fox News, he says: “Let me make one other point just—very important. The entire issue here is liability protection for the carriers. And so the old law and extended law are an expired law if we don’t have retroactive liability protection for the carriers. They are less inclined to help us, and so their support.… And therefore, we do not have the agility and the speed that we had before to be able to move and try to capture [terrorists’] communications to thwart their planning.” He also implies that the argument against granting immunity—if the telecoms’ actions were legal in the first place then they wouldn’t need immunity—is valid. Interviewer Chris Wallace says: “Isn’t the central issue here that you’ve lost your power to compel telecommunications companies to cooperate with you and also your ability to offer them legal immunity? Again, the Democrats would say, ‘Look, if the cooperation is legal, they don’t need legal immunity.’” McConnell replies: “Exactly right. The issue now is there’s uncertainty because the law has expired and the law of August, the Protect America Act, allowed us to compel—compel—support from a private carrier. That’s now expired.… [T]he private sector, although willingly helped us [sic] in the past, are now saying, ‘You can’t protect me. Why should I help you?’” Interestingly, after all of the talk of imminent terror attacks, when Wallace asks, “Do you believe al-Qaeda is more of a threat now than any time since 9/11?” McConnell says flatly: “No. Following 9/11, al-Qaeda’s leadership and operatives were degraded probably two-thirds or three-quarters.” House Majority Leader Steny Hoyer (D-MD) responds that the administration’s attempt to tie the renewal of the PAA into the threat of future terrorist attacks is “wrong, divisive and nothing but fear-mongering.” Senator Edward Kennedy (D-MA) adds that McConnell’s “latest comments show yet again the shamelessness of the administration’s tactics.” [Fox News, 2/17/2008]

Entity Tags: Protect America Act, BellSouth, Al-Qaeda, AT&T, Chris Wallace, George W. Bush, Edward M. (“Ted”) Kennedy, Verizon Communications, Steny Hoyer, Mike McConnell

Category Tags: Expansion of Presidential Power, Other Legal Changes, Privacy, Impositions on Rights and Freedoms, Government Acting in Secret, Government Classification, NSA Wiretapping / Stellar Wind

The Protect America Act (PAA—see August 5, 2007) expires today. Congress has refused to pass a reauthorization of the legislation that contains a provision to grant retroactive immunity to US telecommunications firms to protect them from lawsuits arising from their previous cooperation with government eavesdroppers (see February 5, 2006). President Bush has warned for days that by refusing to reauthorize the bill, Congress is leaving the US “more in danger of attack.” The surveillance elements of the PAA will continue in force for another year after its passage even as the PAA itself expires, so the government’s capability to use electronic surveillance against suspected terrorists and citizens alike continues unabated through August 2008.
Republican Reaction - House Minority Leader John Boehner (R-OH) warns, “This is a grave problem, and the Democrat leaders ought to be held accountable for their inaction.” Senate Minority Leader Mitch McConnell (R-KY) says, “The companies have been waiting for six months for retroactive liability” protection. “They are under pressure from their directors, pressure from their shareholders, and you’re jeopardizing the entire existence of the company by continuing to do this.”
Democratic Reaction - But House Democrats seem to be in no mood to give in to Bush’s rhetoric. Speaker of the House Nancy Pelosi (D-CA) says Bush is “misrepresenting the facts on our nation’s electronic-surveillance capabilities.” “There is no risk the program will go dark,” says Silvestre Reyes (D-TX), chairman of the House Intelligence Committee. Many Democrats accuse the administration of putting the interests of telecom firms over national security—accusations that intensify after Bush’s Director of National Intelligence, Mike McConnell, admitted that the real issue behind the reauthorization is the immunity for telecoms (see February 15-17, 2008). Senator Edward Kennedy (D-MA) says that the entire argument is “nothing more than a scare tactic designed to avoid legal and political accountability and keep Americans in the dark about the administration’s massive lawbreaking.” House member Tim Walz (D-MN) says, “Coming from a military background, I sure don’t downplay that there are threats out there, but the president’s demagoguery on this is the equivalent of the boy crying wolf.” And Rahm Emanuel (D-IL), the head of the House Democratic Caucus, says bluntly: “This is not about protecting Americans. The president just wants to protect American telephone companies.”
Previous Depiction - When the law was signed into effect August 5, 2007, it was portrayed by the White House as “a temporary, narrowly focused statute to deal with the most immediate needs of the intelligence community to protect the country.” Now it is being portrayed by Bush officials as the cornerstone of the nation’s terrorist-surveillance program. The issue is sure to resurface when Congress returns from a week-long break in late February. [Associated Press, 2/14/2008; Washington Post, 2/16/2008]

Entity Tags: Nancy Pelosi, Mike McConnell, John Boehner, George W. Bush, Edward M. (“Ted”) Kennedy, Mitch McConnell, Protect America Act, Rahm Emanuel, Silvestre Reyes, Tim Walz

Category Tags: Expansion of Presidential Power, Other Legal Changes, Privacy, Impositions on Rights and Freedoms, Government Acting in Secret, Government Classification, NSA Wiretapping / Stellar Wind

With the Protect America Act expiring amid warnings of imminent terror attacks from Bush administration officials and Congressional Republicans (see February 16, 2008 and February 15-17, 2008), most experts outside the administration say its expiration will have little effect on national security. Under the PAA, the government could wiretap domestic phones and computer systems without a warrant, but the legislation was considered a temporary stopgap measure to give Congress and the White House a chance to work together to create new, permanent regulations covering domestic surveillance. The government’s domestic wiretapping program now reverts to the procedures followed for 30 years under the Foreign Intelligence Surveillance Act (FISA), which requires warrants from the FISA Court to engage in surveillance inside the US. Despite administration claims that the paperwork for those warrants is too cumbersome, many experts say that FISA gives the government the tools it needs to spy on terrorists. Timothy Lee from the conservative Cato Institute recalls that the last time FISA was revamped, after the 9/11 attacks, President Bush praised the overhaul, saying it “recognizes the realities and dangers posed by the modern terrorist.” Lee observes: “Those are the rules we’ll be living under after the Protect America Act expires this weekend. There’s no reason to think our nation will be in any more danger in 2008 than it was in 2002, 2003, 2004, 2005, or 2006.” Ben Wittes of the centrist Brookings Institution says that because existing warrantless surveillance begun under the temporary laws could continue for up to a year, the “sky is not falling at all.” Wittes says he is “somewhat bewildered by the apocalyptic rhetoric” of the Bush administration. Many experts note that emergency FISA warrants can, and have, been granted in a matter of minutes, and government eavesdroppers have up to three days to wiretap a phone or computer and then retroactively acquire a warrant. But administration officials have a different view. White House press secretary Dana Perino says the PAA’s expiration “will harm our ability to conduct surveillance to detect new threats to our security, including the locations, intentions and capabilities of terrorists and other foreign intelligence targets abroad.” Perino says that the PAA “temporarily closed” a “dangerous intelligence gap.” House Majority Leader Steny Hoyer (D-MD) calls that warning “categorically false.” Hoyer continues: “In fact, a wide range of national security experts has made clear that the president and our intelligence community have all the tools they need to protect our nation, if the Protect America Act—temporary legislation passed last August—expires.… We believe the president’s rhetoric is inaccurate and divisive, and an attempt to stampede the House of Representatives to rubber-stamp legislation by stoking the fears of the American people. We will not be stampeded.” [Washington Times, 2/16/2008]

Entity Tags: Steny Hoyer, Timothy Lee, George W. Bush, Cato Institute, Bush administration (43), Ben Wittes, Protect America Act, Dana Perino, Foreign Intelligence Surveillance Court, Foreign Intelligence Surveillance Act

Category Tags: Impositions on Rights and Freedoms, Privacy, Expansion of Presidential Power, Other Legal Changes, Government Acting in Secret, Government Classification, NSA Wiretapping / Stellar Wind

The Justice Department’s Inspector General, Glenn Fine, writes to Senators Richard Durbin (D-IL) and Sheldon Whitehouse (D-RI). Fine is responding to their request for an investigation of Justice Department officials’ role in authorizing and overseeing the use of waterboarding by CIA interrogators at the Guantanamo Bay detention facility. Fine notes: “[U]nder current law, the OIG [Office of the Inspector General] does not have jurisdiction to review the actions of [Justice Department] attorneys acting in their capacity to provide legal advice. Legislation that would remove this limitation has passed the House and is pending in the Senate (see April 23, 2008), but at this point the OIG does not have the jurisdiction to undertake the review you request.” [US Department of Justice, 2/19/2008 pdf file]

Entity Tags: US Department of Justice, Richard (“Dick”) Durbin, Glenn Fine, Sheldon Whitehouse, Office of the Inspector General (DOJ), Central Intelligence Agency

Timeline Tags: Torture of US Captives

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Gov't Violations of Prisoner Rights

Attorney General Michael Mukasey refuses to refer a House contempt citation against two of President Bush’s top officials to a federal grand jury. The House has found former White House counsel Harriet Miers and White House Chief of Staff Joshua Bolten in contempt of Congress for refusing to answer Congressional subpoenas (see February 14, 2008), but Mukasey says neither Bolten nor Miers have committed any crimes. House Speaker Nancy Pelosi (D-CA) has, in return, given the House Judiciary Committee the authority to file a lawsuit against Miers and Bolten in federal court. Mukasey says Bolten and Miers were right to ignore the subpoenas because both were acting at President Bush’s behest. Pelosi retorts: “The American people demand that we uphold the law. As public officials, we take an oath to uphold the Constitution and protect our system of checks and balances and our civil lawsuit seeks to do just that.” Democrats want the filing to move swiftly so that a judge might rule before the November elections; a key tenet of Democratic political strategy is the accusation that the Bush administration has abused its executive powers and considers itself above the law. Bolten and Miers were subpoenaed to testify about the possible political motivations behind the 2006 firings of nine US attorneys. Mukasey agrees with the Bush administration in saying that neither Miers nor Bolten, as officials of the executive branch, are required to answer to Congress for their actions, “The contempt of Congress statute was not intended to apply and could not constitutionally be applied to an executive branch official who asserts the president’s claim of executive privilege,” he writes. “Accordingly, the department has determined that the noncompliance by Mr. Bolten and Ms. Miers with the Judiciary Committee subpoenas did not constitute a crime.” Judiciary Committee chairman John Conyers (D-MI) says of Mukasey’s decision: “Today’s decision to shelve the contempt process, in violation of a federal statute, shows that the White House will go to any lengths to keep its role in the US attorney firings hidden. In the face of such extraordinary actions, we have no choice but to proceed with a lawsuit to enforce the committee’s subpoenas.” [Associated Press, 2/29/2008]

Entity Tags: House Judiciary Committee, Bush administration (43), George W. Bush, John Conyers, Harriet E. Miers, Michael Mukasey, Joshua Bolten, Nancy Pelosi

Category Tags: Expansion of Presidential Power, Government Acting in Secret, 2006 US Attorney Firings

A federal judge dismisses a lawsuit seeking to halt sales of the so-called “morning-after” birth control pill, the only such drug available in the US without a prescription. In 2006, the FDA reversed its 2004 decision not to allow the drug to be sold over the counter (see May 6, 2004 and After) to anyone 18 years of age or older. The suit was brought by the Association of American Physicians and Surgeons and a number of anti-abortion and social conservative groups. The US District Court in the District of Columbia finds that the plaintiffs failed “to identify a single individual who has been harmed by Plan B’s OTC [over-the-counter] availability.” The ruling is widely considered to be a victory for advocates of reproductive rights. “They still don’t have any evidence in terms of why they think it is harmful,” says Janet Crepps of the Center for Reproductive Rights (CRR). “This is the right decision for women.” A lawsuit filed by the CRR to force OTC sales of the drug to girls under 18 is still pending (see April 22, 2009). [Reuters, 3/4/2008]

Entity Tags: Association of American Physicians and Surgeons, Food and Drug Administration, Janet Crepps, Center for Reproductive Rights

Timeline Tags: US Health Care

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power

Justice Department attorney Brian Benczkowski replies to a follow-up letter from Senator Ron Wyden (D-OR), who is challenging the department’s claims that the CIA detainee interrogation program is fully compliant with US and international law (see December 20, 2007). Much of Benczkowski’s letter is a reiteration of points made in an earlier letter (see September 27, 2007), even citing the same legal cases that Wyden challenged as not directly relevant to the Justice Department’s arguments. Benczkowski reiterates that the definitions of “humane treatment” and “cruel, inhuman, and degrading treatment” are flexible, in the department’s view, and can change drastically depending on the identity of the detainee and the circumstances surrounding his interrogation. The standards of compliance are also mitigated by the “nature and importance of the government interest,” he claims, giving as an example the possibility of abrogating a detainee’s fundamental rights under the Geneva Conventions and other statutes in order to force information about an impending terrorist attack from him. Benczkowski reiterates that the Eighth Amendment only applies to prisoners after they have been convicted of a crime; hence, detainees never tried or charged for crimes have no rights under that amendment. It is apparent that Benczkowski considers the discussion closed; he concludes his letter with the statement, “Please do not hesitate to contact the Department if we can be of assistance in other matters.” [US Department of Justice, 3/6/2008 pdf file]

Entity Tags: Central Intelligence Agency, Brian A. Benczkowski, Ron Wyden, Geneva Conventions, US Department of Justice

Timeline Tags: Torture of US Captives

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Gov't Violations of Prisoner Rights

President Bush vetoes legislation passed by Congress that would have banned the CIA from using waterboarding and other “extreme” interrogation techniques. The legislation is part of a larger bill authorizing US intelligence activities. The US Army prohibits the use of waterboarding and seven other interrogation techniques in the Army Field Manual; the legislation would have brought the CIA in line with US military practices. Waterboarding is banned by many countries and its use by the US and other regimes has been roundly condemned by US lawmakers and human rights organizations. The field manual also prohibits stripping prisoners naked; forcing them to perform or simulate sexual acts; beating, burning, or otherwise inflicting harm; subjecting prisoners to hypothermia; subjecting prisoners to mock executions; withholding food, water, or medical treatment; using dogs to frighten or attack prisoners; and hooding prisoners or strapping duct tape across their eyes.
Reasoning for Veto - “Because the danger remains, we need to ensure our intelligence officials have all the tools they need to stop the terrorists,” Bush explains. The vetoed legislation “would diminish these vital tools.” Bush goes on to say that the CIA’s interrogation program has helped stop terrorist attacks on a US Marine base in Djibouti and the US consulate in Pakistan, as well as stopped plans for terrorists to fly hijacked planes into a Los Angeles tower or perhaps London’s Heathrow Airport. He gives no specifics, but adds, “Were it not for this program, our intelligence community believes that al-Qaeda and its allies would have succeeded in launching another attack against the American homeland.” John D. Rockefeller (D-WV), the head of the Senate Intelligence Committee, disagrees, saying he knows of no instances where the CIA has used such methods of interrogation to obtain information that led to the prevention of a terrorist attack. “On the other hand, I do know that coercive interrogations can lead detainees to provide false information in order to make the interrogation stop,” he says. CIA Director Michael Hayden says that the CIA will continue to work within both national and international law, but its needs are different from those of the Army, and it will follow the procedures it thinks best. Bush complains that the legislation would eliminate not just waterboarding, but “all the alternative procedures we’ve developed to question the world’s most dangerous and violent terrorists.” [Reuters, 3/8/2008; Associated Press, 3/8/2008]
Criticism of Veto - Democrats, human rights leaders, and others denounce Bush’s veto. Senator Dianne Feinstein (D-CA) says, “This president had the chance to end the torture debate for good, yet he chose instead to leave the door open to use torture in the future.” Feinstein notes that Bush ignored the advice of 43 retired generals and admirals, and 18 national security experts, who all supported the bill. “Torture is a black mark against the United States,” she says. House Speaker Nancy Pelosi (D-CA) says she and fellow Democrats will try to override the veto and thus “reassert [the United States’s] moral authority.” Elisa Massimino of Human Rights First says, “The president’s refusal to sign this crucial legislation into law will undermine counterterrorism efforts globally and delay efforts to rebuild US credibility on human rights.” [Associated Press, 3/8/2008] New York Times journalist Steven Lee Myers writes that Bush vetoes the bill not just to assert his support for extreme interrogation techniques or to provide the government everything it needs to combat terrorism, but as part of his ongoing battle to expand the power of the presidency. Myers writes, “At the core of the administration’s position is a conviction that the executive branch must have unfettered freedom when it comes to prosecuting war.” [New York Times, 3/9/2008]

Entity Tags: Nancy Pelosi, Human Rights First, George W. Bush, Elisa Massimino, Dianne Feinstein, Central Intelligence Agency, John D. Rockefeller, Michael Hayden, US Department of the Army, Senate Intelligence Committee, Steven Lee Myers

Timeline Tags: Torture of US Captives

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Gov't Violations of Prisoner Rights

The House Judiciary Committee asks a federal judge to compel two White House officials to testify about the firings of eight US attorneys in 2007. Former White House counsel Harriet Miers and current White House Chief of Staff Joshua Bolten have both refused to testify, ignoring subpoenas from the Judiciary Committee (see February 14, 2008), and Attorney General Michael Mukasey has refused to enforce the subpoenas (see February 29, 2008). The White House steered the refusals. Judge John D. Bates, a federal district court judge in Washington, is overseeing the case. The suit says that neither Miers nor Bolten may avoid testimony by citing executive privilege, as both they and the White House have asserted. White House press secretary Dana Perino calls the suit “partisan theater,” and adds, “The confidentiality that the president receives from his senior advisers and the constitutional principle of separation of powers must be protected from overreaching, and we are confident that the courts will agree with us.” Judiciary Committee chairman John Conyers (D-MI) vehemently disagrees, saying, “The administration’s extreme claim to be immune from the oversight processes are at odds with our constitutional principles.” Conyers warns, “We will not allow the administration to steamroll Congress.” House Minority Leader John Boehner (R-OH) calls the suit a waste of time and accuses the committee of “pandering to the left-wing swamps of loony liberal activists.” The case is central to the ongoing tension between the White House and Congress over the balance of power between the two branches. Constitutional law professor Orin S. Kerr says the case raises fresh issues. While the Supreme Court recognized executive privilege in 1974, it acknowledged that executive privilege was not absolute and could be overturned in some instances, such as a criminal investigation. No court has ruled whether a claim of executive privilege outweighs a Congressional subpoena. According to lawyer Stanley Brand, who is involved in the suit for the Democrats, the committee turned to the legal system to avoid the possibility of charging Miers and Bolten with contempt and trying them in Congress on the charges. Such an action, Brand says, would be unseemly. [House Judiciary Committee v. Miers & Bolten, 3/10/2008 pdf file; New York Times, 3/11/2008]

Entity Tags: House Judiciary Committee, Dana Perino, Harriet E. Miers, John Boehner, John Conyers, Orin S. Kerr, John D. Bates, Joshua Bolten, Michael Mukasey, Stanley Brand

Category Tags: Privacy, Impositions on Rights and Freedoms, Expansion of Presidential Power, Government Acting in Secret, Government Classification, 2006 US Attorney Firings

Navy Lieutenant Commander Brian Mizer, the lawyer for Guantanamo detainee Salim Hamdan, says that senior Pentagon officials are orchestrating war crimes prosecutions for the 2008 presidential campaign. In a court brief filed on this day, Mizer describes a September 29, 2006 meeting at the Pentagon where Deputy Defense Secretary Gordon England asked lawyers to consider 9/11-related prosecutions in light of the upcoming presidential campaign. “We need to think about charging some of the high-value detainees because there could be strategic political value to charging some of these detainees before the election,” England is quoted as saying (see September 29, 2006). Pentagon spokesman Bryan Whitman refuses to discuss specifics of the case, but says that the Pentagon “has always been extraordinarily careful to guard against any unlawful command influence” in upcoming military commissions trials. Mizer says that because of England’s instructions, and other examples of alleged political interference, his client cannot get a fair trial. Three weeks before England’s observation about the “strategic political value” of the trials, President Bush disclosed that he had ordered the CIA to transfer “high-value detainees” from years of secret custody to Guantanamo for trial.
Issues 'Scrambled' - Attorney Eugene Fidell, president of the National Institute of Military Justice, says the Hamdan motion exposes the problem of Pentagon appointees’ supervisory relationship to the war court. “It scrambles relationships that ought to be kept clear,” he says. England’s statement, says Fidell, is “enough that you’d want to hold an evidentiary hearing about it, with live witnesses. It does strike me as disturbing for there to be even a whiff of political considerations in what should be a quasi-judicial determination.” Susan Crawford is the White House-appointed supervisor for the court proceedings; England is a two-term White House appointee who has supervised the prison camps’ administrative processes. Crawford, England, and other White House officials have crossed the legal barriers that separate various functions of a military court, Mizer argues. Mizer plans to call the former chief prosecutor for the Guantanamo trials, Morris Davis (see October 4, 2007), who first brought the England remark to light. Davis resigned his position after contending that political influence was interfering with the proper legal procedures surrounding the prosecution of accused war criminals.
Motion for Dismissal - Mizer’s motion asks the judge, Navy Captain Keith Allred, to dismiss the case against Hamdan as an alleged 9/11 co-conspirator on the grounds that Bush administration officials have exerted “unlawful command influence.” Hamdan is a former driver for Osama bin Laden whose lawyers successfully challenged an earlier war court format (see June 30, 2006). Hamdan’s case is on track to be the first full-scale US war crimes tribunal since World War II. [Miami Herald, 3/28/2008]

Entity Tags: Michael Hayden, Eugene R. Fidell, Central Intelligence Agency, Bryan Whitman, Brian Mizer, George W. Bush, Gordon England, Keith Allred, US Department of Defense, Salim Ahmed Hamdan, Susan Crawford, Morris Davis, Osama bin Laden

Timeline Tags: Torture of US Captives, 2008 Elections

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Gov't Violations of Prisoner Rights

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

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

Timeline Tags: Torture of US Captives

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Gov't Violations of Prisoner Rights

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

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

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Other Legal Changes, Government Acting in Secret

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

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

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Other Legal Changes, Government Acting in Secret

John Yoo, the author of the just-released 2003 torture memo that advocated virtually unlimited presidential powers and asserted that US military can torture terrorist suspects (see March 14, 2003 and April 1, 2008), says that the memo is anything but extraordinary, and accuses his Justice Department successors of giving in to political pressures. Yoo is a former Justice Department official who now teaches law at the University of California at Berkeley. Yoo says the Justice Department altered its opinions “for appearances’ sake,” and his successors “ignored the Department’s long tradition in defending the president’s authority in wartime.” The memo did not “invent… some novel interpretation of the Constitution… our legal advice to the president, in fact, was near boilerplate.” [Washington Post, 4/2/2008] Yoo says that memos such as his sacrificed sensibility for exactitude, and asserts that he felt it necessary to be as detailed and specific as possible. “You have to draw the line. What the government is doing is unpleasant. It’s the use of violence. I don’t disagree with that. But I also think part of the job unfortunately of being a lawyer sometimes is you have to draw those lines. I think I could have written it in a much more—we could have written it in a much more palatable way, but it would have been vague.” [Washington Post, 4/6/2008] Others do not agree with Yoo’s defense (see April 2-4, 2008).

Entity Tags: US Department of Justice, John C. Yoo, University of California at Berkeley

Timeline Tags: Torture of US Captives

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Gov't Violations of Prisoner Rights

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

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

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Other Legal Changes, Government Acting in Secret, NSA Wiretapping / Stellar Wind

Legal experts and media observers react with shock and anger at former Justice Department lawyer John Yoo’s defense of his March 2003 torture defense (see April 2, 2008). Eugene Fidell, who teaches military justice at Yale and American University, says: “This is a monument to executive supremacy and the imperial presidency. It’s also a road map for the Pentagon for fending off any prosecutions.” [New York Times, 4/2/2008] Thomas J. Romig, the Army’s judge advocate general at the time the memo was issued, says that Yoo’s memo seems to argue that there are no rules in a time of war, an argument Romig finds “downright offensive.” [Washington Post, 4/2/2008] Retired Air Force General Richard B. Myers, chairman of the Joint Chiefs of Staff when the memo was written, says that he never saw the document authorizing harsh military interrogations and that its narrow definition of torture is “absolutely ludicrous.” Myers adds: “I frankly don’t know anyone in the military who bought into that as a good definition of when you cross the line. In the end, you want to do the right thing. I worry most about reciprocity, how other countries will treat us.” [Washington Post, 4/4/2008] Legal experts (see April 2-6, 2008) and media observers (see April 4, 2008) join in criticizing Yoo’s rationale for the torture memo.

Entity Tags: US Department of Defense, Richard B. Myers, John C. Yoo, Eugene R. Fidell, Thomas J. Romig, US Department of Justice

Timeline Tags: Torture of US Captives

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Gov't Violations of Prisoner Rights

Several legal experts join the retired military officials (see April 2-4, 2008) and media pundits (see April 4, 2008) who have spoken out against former Justice Department lawyer John Yoo’s 2003 torture memo (see April 2, 2008). Dawn Johnsen, the head of the Justice Department’s Office of Legal Counsel during the Clinton administration, says of Yoo’s memo: “Having 81 pages of legal analysis with its footnotes and respectable-sounding language makes the reader lose sight of what this is all about. He is saying that poking people’s eyes out and pouring acid on them is beyond Congress’s ability to limit a president. It is an unconscionable document.” [Washington Post, 4/6/2008] Former Office of Legal Counsel lawyer Martin Lederman, now a law professor at Georgetown University, says the Yoo memo helped create a legal environment that allowed prisoner abuses at Abu Ghraib. “What else could have been the source of belief in Iraq that the gloves were off and all laws could be disregarded with impunity?” Lederman asks. “It created a world in which everyone on the ground believed the laws did not apply. It was a law-free zone.” [Washington Post, 4/2/2008] Doug Cassell, the director of Notre Dame Law School’s Center for Civil and Human Rights, says: “This newly disclosed memo confirms that John Yoo inflicted his legal theory, that the commander in chief can do anything in wartime, not only on the CIA, but on the Pentagon as well. Yet when the Justice Department revoked the Yoo memos, it expressly declined to address that theory. It is high time for the Justice Department to repudiate Yoo’s pernicious doctrine, once and for all.” [Institute for Public Accuracy, 4/2/2008]

Entity Tags: Martin (“Marty”) Lederman, Doug Cassell, Dawn Johnsen, US Department of Justice, John C. Yoo

Timeline Tags: Torture of US Captives

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Gov't Violations of Prisoner Rights

The New York Times’s editorial board berates former Justice Department lawyer John Yoo for his defense of his 2003 advocacy of torture (see April 2, 2008), joining retired military officials (see April 2-4, 2008) and legal experts (see April 2-6, 2008). The board writes: “You can often tell if someone understands how wrong their actions are by the lengths to which they go to rationalize them. It took 81 pages of twisted legal reasoning to justify President Bush’s decision to ignore federal law and international treaties and authorize the abuse and torture of prisoners. Eighty-one spine-crawling pages in a memo that might have been unearthed from the dusty archives of some authoritarian regime and has no place in the annals of the United States. It is must reading for anyone who still doubts whether the abuse of prisoners were rogue acts rather than calculated policy.… The purpose of the March 14 memo was equally insidious: to make sure that the policy makers who authorized those acts, or the subordinates who carried out the orders, were not convicted of any crime.… Reading the full text, released this week, makes it startlingly clear how deeply the Bush administration corrupted the law and the role of lawyers to give cover to existing and plainly illegal policies.… When the abuses at Abu Ghraib became public, we were told these were the depraved actions of a few soldiers. The Yoo memo makes it chillingly apparent that senior officials authorized unspeakable acts and went to great lengths to shield themselves from prosecution.” [New York Times, 4/4/2008]

Entity Tags: Bush administration (43), Geneva Conventions, John C. Yoo, US Department of Justice, New York Times

Timeline Tags: Torture of US Captives

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Gov't Violations of Prisoner Rights, Media Involvement and Responses

President Bush admits he knew about his National Security Council Principals Committee’s discussion and approval of harsh interrogation methods against certain terror suspects (see April 2002 and After). Earlier reports had noted that the Principals—a group of top White House officials led by then-National Security Adviser Condoleezza Rice—had deliberately kept Bush “out of the loop” in order for him to maintain “deniability.” Bush tells a reporter: “Well, we started to connect the dots in order to protect the American people. And yes, I’m aware our national security team met on this issue. And I approved.” Bush says that the news of those meetings to consider extreme interrogation methods was not “startling.” He admitted as far back as 2006 that such techniques were being used by the CIA (see September 6, 2006). But only now does the news of such direct involvement by Bush’s top officials become public knowledge. The Principals approved the waterboarding of several terror suspects, including Khalid Shaikh Mohammed (see Shortly After February 29 or March 1, 2003 and March 10, 2007); Bush defends the use of such extreme measures against Mohammed, saying: “We had legal opinions that enabled us to do it. And no, I didn’t have any problem at all trying to find out what Khalid Shaikh Mohammed knew.… I think it’s very important for the American people to understand who Khalid Shaikh Mohammed was. He was the person who ordered the suicide attack—I mean, the 9/11 attacks.” [ABC News, 4/11/2008] Bush’s admission is no surprise. The day before Bush makes his remarks, law professor Jonathan Turley said: “We really don’t have much of a question about the president’s role here. He’s never denied that he was fully informed of these measures. He, in fact, early on in his presidency—he seemed to brag that they were using harsh and tough methods. And I don’t think there’s any doubt that he was aware of this. The doubt is simply whether anybody cares enough to do anything about it.” [MSNBC, 4/10/2008]

Entity Tags: George W. Bush, Central Intelligence Agency, Condoleezza Rice, Jonathan Turley, National Security Council, Khalid Shaikh Mohammed

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

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Gov't Violations of Prisoner Rights

The Justice Department launches an investigation into whether its former officials acted properly in advising President Bush that his wartime authority trumped domestic law, United Nations treaties, and international bans on torture. The investigation hinges on a March 2003 memo written by then-Office of Legal Counsel lawyer John Yoo that approved of Bush officials’ intent to use torture (see March 14, 2003). Senator Sheldon Whitehouse (D-RI) says the investigation will “help us discover what went wrong and how to put it right.” Whitehouse continues, “The abject failure of legal scholarship in the Office of Legal Counsel’s analysis of torture suggests that what mattered was not that the reasoning was sound, or that the research was comprehensive, but that it delivered what the Bush administration wanted.” Justice Department spokesman Brian Roehrkasse says that the investigation is part of an overall investigation that has been underway for years. [Associated Press, 4/17/2008]

Entity Tags: US Department of Justice, Brian Roehrkasse, George W. Bush, Sheldon Whitehouse, Office of Legal Counsel (DOJ), John C. Yoo

Timeline Tags: Torture of US Captives

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Gov't Violations of Prisoner Rights

Jon Kyl.Jon Kyl. [Source: ViewImages.com]The Senate passes by unanimous consent the Inspector General Reform Act of 2008, a law designed to boost the independence of the inspectors general of various federal agencies. However, the law only passes after Senator Jon Kyl (R-AZ) adds an amendment that deletes a key provision giving the Justice Department’s Office of Inspector General (OIG) jurisdiction to investigate misconduct allegations against Justice Department attorneys and senior officials. OIGs for all other agencies can, under this law, investigate misconduct within their entire agency. The Justice Department’s OIG must now refer allegations against department officials to the department’s Office of Professional Responsibility (OPR), which is not statutorily independent and reports directly to the attorney general and deputy attorney general. A House bill passed last October has no such requirement. Usually a bill with such a discrepancy would be referred to a joint House-Senate conference to resolve the difference, but Congressional sources say in this case there will be no such conference; the House is likely to accept the Senate version. Many observers believe that the Kyl amendment was added at the White House’s behest after President Bush had threatened to veto the House bill. Representative James Cooper (D-TN), the sponsor of the House bill, says: “The Kyl amendment took out a lot of the substance of the bill, but it didn’t kill the bill. I think we should lock in these improvements and leave to a future Congress further improvements.” Danielle Brian, executive director of the Project on Government Oversight, agrees, saying that the Justice Department issue is a “lingering problem that has got to be addressed.” There is a “clear conflict, a real problem,” with the OPR investigating allegations against the officials to whom it reports, she says. Former Justice Department Inspector General Michael Bromwich says that the Kyl amendment sets the Justice Department apart from all other agencies. The amendment gives Justice Department lawyers what Bromwich calls a “privileged status” to be reviewed by the OPR, which lacks the OIG’s independence. Bromwich says that the amendment “either has to be based on a misunderstanding of what the IG is seeking or on an attempt by people in the department to keep certain kinds of investigations away from the IG for reasons they should articulate.” The issue garnered public attention when former Attorney General Alberto Gonzales directed OPR to investigate the firings of eight US attorneys, a matter directly involving Gonzales and his deputies. Inspector General Glenn Fine objected, and eventually the Justice Department’s OIG and OPR agreed to a joint investigation. “The whole bill was held up because of this issue,” Brian says. “We hope the Justice Department problem is not forgotten now that the legislation is passing.” [National Law Journal, 5/5/2008]

Entity Tags: Office of the Inspector General (DOJ), US Department of Justice, Office of Professional Responsibility, Project on Government Oversight, Michael Bromwich, James Cooper, Inspector General Reform Act of 2008, Alberto R. Gonzales, George W. Bush, Glenn Fine, Jon Kyl, Danielle Brian

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Government Classification

In recent letters to Congress, the Justice Department has suggested that the Geneva Conventions’ ban on “outrages against personal dignity” does not automatically apply to terrorism suspects in the custody of US intelligence agencies (see August 8, 2007 and March 6, 2008). The letters are just now being made public, with Senator Ron Wyden (D-OR) making them available to the Washington Post. Last year, Wyden asked the Justice Department to provide an explanation for President Bush’s 2007 executive order authorizing the CIA to continue using so-called “harsh interrogation techniques” on detainees (see July 20, 2007) even as Bush claimed US interrogators would always observe Geneva restrictions. The department responded with several letters that reasserted the Bush administration’s contentions that it is not bound by domestic law or international treaties in deciding how the Geneva Conventions apply to the interrogation of terror suspects. [Washington Post, 4/27/2008; Voice of America, 4/27/2008]
'Humane Treatment' Subject to Interpretation, Circumstances - The Justice Department acknowledges that the US is bound by Common Article 3 of the Conventions, which requires that a signatory nation treat its detainees humanely; however, the letters say that the definition of “humane treatment” can be interpreted in a variety of ways, and can depend on the detainee’s identity and the importance of the information he possesses. In a letter written to a Democrat on the Senate Intelligence Committee, the principal deputy assistant attorney general, Brian Benczkowski, wrote, “Some prohibitions… such as the prohibition on ‘outrages against personal dignity,’ do invite the consideration of the circumstances surrounding the action.” The government can weigh “the identity and information possessed by a detainee” in deciding whether to use harsh and potentially inhumane techniques, according to Benczkowski. A suspect with information about a future attack, for example, could and possibly would be subjected to extreme treatment, he says, and notes that a violation of the Geneva Conventions would only occur if the interrogator’s conduct “shocks the conscience” because it is out of proportion to “the government interest involved.” He continued, “The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act.” Furthermore, any action defined as an “outrage upon personal dignity” must be deliberate and involve an “intent to humiliate and degrade.”
Government Arguments 'Appalling,' Says Senator - A spokeswoman for Wyden, Jennifer Hoelzer, says that the administration’s contention that the Geneva Conventions can be selectively applied is “stunning.” Hoelzer says: “The Geneva Convention in most cases is the only shield that Americans have when they are captured overseas. And for the president to say that it is acceptable to interpret Geneva on a sliding scale means that he thinks that it is acceptable for other countries to do the same. Senator Wyden—and I believe any other reasonable individual—finds that argument appalling.” Law professor Scott Silliman, who teaches national security law at Duke University, agrees with Wyden’s assessments. He notes, “What they are saying is that if my intent is to defend the United States rather than to humiliate you, than I have not committed an offense.” An anonymous Justice Department official disagrees. “I certainly don’t want to suggest that if there’s a good purpose you can head off and humiliate and degrade someone. The fact that you are doing something for a legitimate security purpose would be relevant, but there are things that a reasonable observer would deem to be outrageous.” However, he adds, “there are certainly things that can be insulting that would not raise to the level of an outrage on personal dignity.” Wyden states that if the US is subjective in deciding what is and isn’t compliant under Geneva, then other countries will do the same to US prisoners in their custody. “The cumulative effect in my interpretation is to put American troops at risk,” he says. [Washington Post, 4/27/2008; New York Times, 4/27/2008] He adds that the letters help make the case for a law that explicitly puts the CIA interrogations under the same restrictions as the military, or another set of clear standards. [Wall Street Journal, 4/27/2008]
'Full Compliance' - The CIA refuses to comment on Benczkowski’s memo, but spokesman Mark Mansfield says the CIA’s detainee program “has been and continues to be in full compliance with the laws of our country.” He adds, “The program has disrupted terrorist plots and has saved lives.” [Washington Post, 4/27/2008; New York Times, 4/27/2008]

Entity Tags: Geneva Conventions, Mark Mansfield, Brian A. Benczkowski, Bush administration (43), Central Intelligence Agency, George W. Bush, US Department of Justice, Ron Wyden, Senate Intelligence Committee, Jennifer Hoelzer

Timeline Tags: Torture of US Captives

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Gov't Violations of Prisoner Rights

The campaign of Republican presidential nominee John McCain (R-AZ) says that if elected, McCain would retain the right to operate his own warrantless wiretapping program against Americans. Like President Bush, McCain believes that the president’s “wartime” powers trump federal criminal statutes and court oversight. McCain’s campaign is also backing off on earlier assertions that more oversight is needed for telecom companies accused of illegally cooperating with the NSA’s domestic spying program; the campaign now says that McCain is for “unconditional immunity” from prosecution for telecoms. Campaign spokesman Doug Holtz-Eakin says: “[N]either the administration nor the telecoms need apologize for actions that most people, except for the ACLU and the trial lawyers, understand were Constitutional and appropriate in the wake of the attacks on September 11, 2001.… We do not know what lies ahead in our nation’s fight against radical Islamic extremists, but John McCain will do everything he can to protect Americans from such threats, including asking the telecoms for appropriate assistance to collect intelligence against foreign threats to the United States as authorized by Article II of the Constitution.” The Article II citation has long been used by Bush officials to justify their contention that a president’s wartime powers are virtually unlimited. McCain’s stance directly contradicts a statement he made in December 2007, when he told Boston Globe reporter Charlie Savage: “I think that presidents have the obligation to obey and enforce laws that are passed by Congress and signed into law by the president, no matter what the situation is.… I don’t think the president has the right to disobey any law.” McCain’s campaign is so far refusing to respond to requests to explain the differences between his December assertions and those made today. [Wired News, 6/3/2008]

Entity Tags: National Security Agency, American Civil Liberties Union, John McCain, Bush administration (43), Doug Holtz-Eakin, Charlie Savage

Timeline Tags: 2008 Elections

Category Tags: Privacy, Impositions on Rights and Freedoms, Expansion of Presidential Power, NSA Wiretapping / Stellar Wind

Jan Schakowsky.Jan Schakowsky. [Source: Washington Post]Fifty-six Democratic members of the House of Representatives send a letter to Attorney General Michael Mukasey, asking him to appoint a special counsel to investigate whether top Bush administration officials committed crimes in authorizing the use of waterboarding and other harsh interrogation tactics against suspected terrorists (see April 2002 and After). The lawmakers, who include John Conyers (D-MI), the chairman of the House Judiciary Committee, and House Intelligence Committee members Jan Schakowsky (D-IL) and Jerrold Nadler (D-NY), cite “mounting evidence” that senior officials personally sanctioned the use of such extreme interrogation methods. An independent investigation is needed to determine whether such actions violated US or international law, the letter states. “This information indicates that the Bush administration may have systematically implemented, from the top down, detainee interrogation policies that constitute torture or otherwise violate the law,” the letter says. It adds that a broad inquiry is needed to examine the consequences of administration decisions at US detention sites in Iraq, at Guantanamo, and in secret prisons operated by the CIA. The interrogation methods have resulted in “abuse, sexual exploitation and torture” that may have violated the War Crimes Act of 1996 and the American Anti-Torture Act of 2007. “Despite the seriousness of the evidence, the Justice Department has brought prosecution against only one civilian for an interrogation-related crime,” the letter reads. “Given that record, we believe it is necessary to appoint a special counsel in order to ensure that a thorough and impartial investigation occurs.” Conyers tells reporters after sending the letter, “We need an impartial criminal investigation.” The entire detainee controversy is “a truly shameful episode” in US history, he says. “Because these apparent ‘enhanced interrogation techniques’ were used under cover of Justice Department legal opinions, the need for an outside special prosecutor is obvious.” The Justice Department refuses to comment on the letter. Jennifer Daskal of Human Rights Watch says that the letter is significant even if Mukasey refuses to appoint a special counsel. “The fact that so many representatives have called for the investigation helps lay the groundwork for the inevitable reckoning and accounting that the next administration is going to have to do regarding this administration’s practices,” she says. [US House of Representatives, 6/6/2008; Washington Post, 6/7/2008; United Press International, 6/7/2008]

Entity Tags: Jerrold Nadler, House Intelligence Committee, Central Intelligence Agency, Bush administration (43), House Judiciary Committee, Human Rights Watch, Michael Mukasey, US Department of Justice, John Conyers, Jan Schakowsky, Jennifer Daskal

Timeline Tags: Torture of US Captives

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Gov't Violations of Prisoner Rights

The Supreme Court rules 5-4 that foreign terror suspects held without charge at Guantanamo Bay have the Constitutional right to challenge their detention in US civilian courts. The Court splits along ideological lines, with the more liberal and moderate members supporting the finding, and the more conservative members opposing it. Justice Anthony Kennedy, considered a centrist, writes the ruling. He writes, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.” The ruling specifically strikes down the portion of the Military Commissions Act (see October 17, 2006) that denies detainees their habeas corpus rights to file petitions. [Associated Press, 6/12/2008; Associated Press, 6/12/2008] The case is Boumediene v. Bush, and was filed in the Supreme Court in March 2007 on behalf of Lakhdar Boumediene, a Bosnian citizen held in the Guantanamo camp since 2002 (see January 18, 2002). It was combined with a similar case, Al Odah v United States (see October 20, 2004). [Oyez (.org), 6/2007; Jurist, 6/29/2007]
'Stinging Rebuke' for Bush Administration - The ruling is considered a serious setback for the Bush administration (a “stinging rebuke,” in the words of the Associated Press), which insists that terror suspects detained at Guantanamo and elsewhere have no rights in the US judicial system. It is unclear whether the ruling will lead to prompt hearings for detainees [Associated Press, 6/12/2008; Associated Press, 6/12/2008] ; law professor James Cohen, who represents two detainees, says, “Nothing is going to happen between June 12 and January 20,” when the next president takes office. Justice Department spokesman Peter Carr says the decision will not affact war crimes trials already in the works: “Military commission trials will therefore continue to go forward.”
Scalia: Ruling Will 'Cause More Americans to Be Killed' - President Bush says he disagrees with the ruling, and says he may seek new legislation to keep detainees under lock and key. Justice Antonin Scalia, the leader of the Court’s ideological right wing, agrees; in a “blistering” dissent, he writes that the decision “will make the war harder on us. It will almost certainly cause more Americans to be killed.” In his own dissent, Chief Justice John Roberts argues that the ruling strikes down “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.” Joining Scalia and Roberts in the minority are Justices Samuel Alito and Clarence Thomas. Voting in the majority are Kennedy and Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter, and John Paul Stevens.
Military Tribunals 'Doomed,' Says Navy Lawyer - Former Navy lawyer Charles Swift, who argued a similar case before the Supreme Court in Hamdan v Rumsfeld (see June 30, 2006), says he believes the ruling removes any legal basis for keeping Guantanamo open, and says that military tribunals are “doomed.” The entire rationale for Guantanamo and the tribunals, Swift says, is the idea that “constitutional protections wouldn’t apply.” But now, “The court said the Constitution applies. They’re in big trouble.” Democrats and many human rights organizations hail the ruling as affirming the US’s commitment to the rule of law; some Republican lawmakers say the ruling puts foreign terrorists’ rights over the safety of the American people. Vincent Warren, the head of the Center for Constitutional Rights, says: “The Supreme Court has finally brought an end to one of our nation’s most egregious injustices. By granting the writ of habeas corpus, the Supreme Court recognizes a rule of law established hundreds of years ago and essential to American jurisprudence since our nation’s founding.” [Associated Press, 6/12/2008]

Entity Tags: Stephen Breyer, Vincent Warren, US Supreme Court, Samuel Alito, Military Commissions Act, Peter Carr, Bush administration (43), Antonin Scalia, Anthony Kennedy, Charles Swift, Clarence Thomas, David Souter, George W. Bush, Lakhdar Boumediene, Ruth Bader Ginsburg, John Paul Stevens, James Cohen, John G. Roberts, Jr, US Department of Justice

Category Tags: Impositions on Rights and Freedoms, Court Procedures and Verdicts, Expansion of Presidential Power, Gov't Violations of Prisoner Rights

David Addington and John Yoo before the House Judiciary Committee.David Addington and John Yoo before the House Judiciary Committee. [Source: Washington Post]David Addington, the chief counsel for Vice President Cheney and one of the architects of the Bush administration’s torture policies (see Late September 2001), testifies before the House Judiciary Committee. He is joined by Justice Department lawyer John Yoo, who authored or contributed to many of the legal opinions that the administration used to justify the torture and “extralegal” treatment of terror suspects (see November 6-10, 2001). Addington, unwillingly responding to a subpoena, is, in Washington Post reporter Dana Milbank’s description, “nasty, brutish, and short” with his questioners. [Washington Post, 6/27/2008] He tells lawmakers that the world has not changed much since the 9/11 attacks: “Things are not so different today as people think. No American should think we are free, the war is over, al-Qaeda is not coming.” [Los Angeles Times, 6/27/2008]
Refusing to Define 'Unitary Executive' - Committee chairman John Conyers (D-MI) peppers Addington with questions about the Bush administration and its penchant for the “unitary executive” paradigm, which in essence sees the executive branch as separate and above the other two, “lesser” branches of government. Addington is one of the main proponents of this theory (see (After 10:00 a.m.) September 11, 2001). But instead of answering Conyers’s questions, he slaps away the questions with what Milbank calls “disdain.”
bullet Addington: “I frankly don’t know what you mean by unitary theory.”
bullet Conyers: “Have you ever heard of that theory before?”
bullet Addington: “I see it in the newspapers all the time.”
bullet Conyers: “Do you support it?”
bullet Addington: “I don’t know what it is.”
bullet Conyers (angrily): “You’re telling me you don’t know what the unitary theory means?”
bullet Addington: “I don’t know what you mean by it.”
bullet Conyers: “Do you know what you mean by it?”
bullet Addington: “I know exactly what I mean by it.”
Open Contempt - He flatly refuses to answer most questions, and treats the representatives who ask him those questions with open contempt and, in Milbank’s words, “unbridled hostility.” One representative asks if the president is ever justified in breaking the law, and Addington retorts, “I’m not going to answer a legal opinion on every imaginable set of facts any human being could think of.” When asked if he consulted Congress when interpreting torture laws, Addington snaps: “That’s irrelevant.… There is no reason their opinion on that would be relevant.” Asked if it would be legal to torture a detainee’s child (see After September 11, 2002), Addington answers: “I’m not here to render legal advice to your committee. You do have attorneys of your own.” He offers to give one questioner advice on asking better questions. When asked about an interrogation session he had witnessed at Guantanamo, he replies: “You could look and see mouths moving. I infer that there was communication going on.” At times he completely ignores questions, instead writing notes to himself while the representatives wait for him to take notice of their queries. At other times, he claims an almost complete failure of memory, particularly regarding conversations he had with other Bush officials about interrogation techniques. [Washington Post, 6/27/2008] (He does admit to being briefed by Yoo about an August 2002 torture memo (see August 1, 2002), but denies assisting Yoo in writing it.) [Los Angeles Times, 6/27/2008] Addington refuses to talk more specifically about torture and interrogation practices, telling one legislator that he can’t speak to him or his colleagues “[b]ecause you kind of communicate with al-Qaeda.” He continues, “If you do—I can’t talk to you, al-Qaeda may watch C-SPAN.” When asked if he would meet privately to discuss classified matters, he demurs, saying instead: “You have my number. If you issue a subpoena, we’ll go through this again.” [Think Progress, 6/26/2008; Washington Post, 6/27/2008]
Yoo Dodges, Invokes Privilege - Milbank writes that Yoo seems “embolden[ed]” by Addington’s “insolence.” Yoo engages in linguistic gymnastics similar to Addington’s discussion with Conyers when Keith Ellison (D-MN) asks him whether a torture memo was implemented. “What do you mean by ‘implemented’?” Yoo asks. Ellison responds, “Mr. Yoo, are you denying knowledge of what the word ‘implement’ means?” Yoo says, “You’re asking me to define what you mean by the word?” Ellison, clearly exasperated, retorts, “No, I’m asking you to define what you mean by the word ‘implement.’” Yoo’s final answer: “It can mean a wide number of things.” [Washington Post, 6/27/2008] Conyers asks Yoo, “Could the president order a suspect buried alive?” Yoo responds, “Uh, Mr. Chairman, I don’t think I’ve ever given advice that the president could order someone buried alive.” Conyers retorts: “I didn’t ask you if you ever gave him advice. I asked you thought the president could order a suspect buried alive.” Yoo answers, “Well Chairman, my view right now is that I don’t think a president—no American president would ever have to order that or feel it necessary to order that.” Conyers says, “I think we understand the games that are being played.” Reporter Christopher Kuttruff writes, “Throughout his testimony, Yoo struggled with many of the questions being asked, frequently delaying, qualifying and invoking claims of privilege to avoid answering altogether.” [Human Rights First, 6/26/2008; Truthout (.org), 6/27/2008]

Entity Tags: House Judiciary Committee, John C. Yoo, Al-Qaeda, David S. Addington, Dana Milbank, Christopher Kuttruff, Bush administration (43), John Conyers, Keith Ellison

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Government Acting in Secret, Government Classification

A federal appeals court overturns a Defense Department determination that Guantanamo detainee Huzaifa Parhat has been properly held as an enemy combatant. The three judges, including one very conservative judge, unanimously reject the allegations made against Parhat. Parhat is a member of the ethnic Uighur Muslim minority in western China, and has been held at Guantanamo for more than six years. The Defense Department claims that Parhat is “affiliated” with the East Turkestan Islamic Movement, a Uighur resistance group, and that this group in turn is “associated” with al-Qaeda and the Taliban. But the court says the classified evidence provided little to no support for these claims. The court mocks the government assertion that its accusations against Parhat should be accepted as true because they had been repeated in at least three secret documents, comparing this to the declaration of a character in the Lewis Carroll poem “The Hunting of the Snark”: “I have said it thrice: What I tell you three times is true.” The ruling states, “This comes perilously close to suggesting that whatever the government says must be treated as true.” But while Parhat’s enemy combatant status is rejected, it is unclear what this will actually mean for him. US officials say they cannot return him to China for fear the Chinese government will mistreat him, and no other country has been willing to accept him or the 16 other Uighurs held at Guantanamo. This is the first case reviewing the government’s secret evidence for holding a Guantanamo detainee, and observers suggest the ruling could broadly affect other detainees because of its skeptical view of the government’s evidence. [New York Times, 7/1/2008]

Entity Tags: Huzaifa Parhat

Timeline Tags: Torture of US Captives

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Gov't Violations of Prisoner Rights

President Bush signs the FISA Amendments Act of 2008 (FAA), a revamping and expansion of the original Foreign Intelligence Surveillance Act (see 1978). The legislation passed the House by a sweeping 293 to 129 votes, with most Democratic Congressional leaders supporting it over the opposition of the more liberal and civil liberties-minded Democrats. Republicans were almost unanimously supportive of the bill. Though Democratic Senators Russell Feingold (D-WI) and Christopher Dodd (D-CT) managed to delay the bill’s passage through the Senate, their attempt to modify the bill was thwarted by a 66-32 margin. (Dodd credits AT&T whistleblower Mark Klein (see December 15-31, 2005 and July 7, 2009) as one of the very few people to make the public aware of the illegal NSA wiretapping program, which the FISA amendment would protect. Without Klein, Dodd states, “this story might have remained secret for years and years, causing further erosion of our rights.”) Senator Barack Obama (D-IL), the party’s presumptive presidential nominee, gave his qualified support to the bill, stating: “Given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as president, I will carefully monitor the program.” Obama had opposed an earlier Senate version that would have given “blanket immunity” to the telecommunications companies for their participation in the illegal NSA wiretapping program (see December 15, 2005). House Speaker Nancy Pelosi (D-CA), who organized Democratic support for the bill in the House, said that she supported the bill primarily because it rejects Bush’s argument that a wartime chief executive has the “inherent authority” to conduct some surveillance activity he considers necessary to fight terrorism. It restores the legal notion that the FISA law is the exclusive rule on government spying, she said, and added: “This is a democracy. It is not a monarchy.” Feingold, however, said that the bill granted “retroactive immunity to the telecommunications companies that may have engaged in President Bush’s illegal wiretapping program.” The amendments restore many of the provisions of the expired Protect America Act (PAA—see August 5, 2007) that drastically modify the original FISA legislation and grant the government broad new surveillance powers. Like the PAA, the FAA grants “third parties” such as telecommunications firms immunity from prosecution for engaging in illegal surveillance of American citizens if they did so in partnership with government agencies such as the National Security Agency (NSA). [Washington Post, 6/20/2008; CNN, 6/26/2008; US Senate, 7/9/2008; White House, 7/10/2008; Klein, 2009, pp. 95-97] Senate Majority Leader Harry Reid (D-NV) actually refused to honor a “hold” placed on the bill by Dodd, a highly unusual move. Klein will later note that Reid has in the past always honored holds placed on legislation by Republicans, even if Democrats were strongly supportive of the legislation being “held.” Klein will write that Pelosi crafted a “showpiece” FISA bill without the immunity provisions, garnering much praise for her from civil liberties organizations; however, Pelosi’s colleague House Majority Leader Steny Hoyer (D-MD) had secretly worked with the White House to craft a bill that preserved immunity for telecoms, and on June 10, Pelosi “rammed” that bill through the House. The final bill actually requires the judiciary to dismiss lawsuits brought against telecom firms if those firms can produce evidence that they had worked in collusion with the NSA. Feingold later observes that the final bill is not a “compromise, it is a capitulation.” [Klein, 2009, pp. 101-103] Klein will write that Democrats and Republicans have worked together to “unw[ind] one of the main reforms of the post-Watergate era and accepted the outrageous criminal rationalizations of [President] Nixon himself.” Klein will quote Nixon as saying, “If the president does it, that means it’s not illegal” (see April 6, 1977), and will say that is “the essence of the FISA ‘compromise’” and turned Congress into the White House’s “rubber stamp.… It is the twisted judicial logic of a dictatorship.” [Klein, 2009, pp. 107]

Entity Tags: Nancy Pelosi, Foreign Intelligence Surveillance Act, FISA Amendments Act of 2008, Christopher Dodd, Barack Obama, George W. Bush, Mark Klein, Russell D. Feingold, Richard M. Nixon, Harry Reid, Steny Hoyer, National Security Agency, Protect America Act

Category Tags: Freedom of Speech / Religion, Impositions on Rights and Freedoms, Privacy, Expansion of Presidential Power, NSA Wiretapping / Stellar Wind

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

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

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Gov't Violations of Prisoner Rights, Government Acting in Secret, Government Classification

Federal Judge Richard Leon rules that the US government has unlawfully held five Algerian men at Guantanamo for nearly seven years (see January 18, 2002). Leon orders their release. Leon rules that the government’s case, based on a slender compilation of classified evidence, was too weak to justify the five men’s continued detention. The government’s case is based on a single “classified document from an unnamed source” for its central claim against the men, and the court has no way to accurately judge its credibility. “To rest on so thin a reed would be inconsistent with this court’s obligation,” Leon writes. He urges the Bush administration not to appeal the ruling, and recommends that they be released “forthwith.” Leon rules that a sixth Algerian, Bensayah Belkacem (see October 8, 2001), is being lawfully detained due to his demonstrable ties with al-Qaeda. The six are among the Guantanamo inmates who won a narrowly decided Supreme Court case recognizing their right to seek redress in the US court system (see June 22, 2008), and include Lakhdar Boumediene, for whom the Court’s ruling was named. Leon, a Republican appointee previously considered sympathetic to the Bush administration’s position on the detention of suspects, urges the government not to appeal his ruling: such an appeal could take as much as two years, and, he notes, “Seven years of waiting for our legal system to give them an answer to a question so important is, in my judgment, more than plenty.” If the government chooses not to appeal, the lawyers for the detainees expect them to be released into Bosnia, where they were arrested in early 2002. The Justice Department calls the ruling “perhaps an understandable consequence of the fact that neither the Supreme Court nor Congress has provided rules on how these habeas corpus cases should proceed in this unprecedented context.” One of the detainees’ lawyers, Robert Kirsch, says the case illustrates “the human cost of what can happen when mistakes are made at the highest levels of our government, and no one has the courage to acknowledge those mistakes.” Other detainee lawyers say the case is a broad repudiation of the Bush administration’s attempts to use the Guantanamo facility to avoid the scrutiny of US judges. Lawyer Zachary Katznelson, a member of the British human rights group Reprieve, says, “The decision by Judge Leon lays bare the scandalous basis on which Guantánamo has been based—slim evidence of dubious quality.” The case was not strengthened by the Bush administration’s pursuit of it: originally the six were charged with planning a bomb attack on the US Embassy in Sarajevo, Bosnia, but in October, Justice Department lawyers abruptly withdrew those accusations. [New York Times, 11/20/2008; National Review, 11/20/2008] The five will be released the following month (see December 2008).

Entity Tags: Reprieve, Bensayah Belkacem, Al-Qaeda, Bush administration (43), Lakhdar Boumediene, Zachary Katznelson, US Supreme Court, Richard J. Leon, US Department of Justice, Robert Kirsch

Category Tags: Impositions on Rights and Freedoms, Court Procedures and Verdicts, Expansion of Presidential Power, Detainments Outside US, Gov't Violations of Prisoner Rights

The Bush administration updates the secretive Continuity of Government (COG) program, which is designed to ensure the survival of the federal government during disasters. Federal emergency responsibilities are consolidated within the White House Military Office, a move designed to simplify the government’s response procedures. Under the changes, the Department of Defense and the Bush administration take over parts of the program from the Federal Emergency Management Agency (FEMA). According to the New York Times, “Under the revamped structure, the White House Military Office, which reports to the office of the White House chief of staff, has assumed a more central role in setting up a temporary ‘shadow government’ in a crisis.” According to the Times, the move comes after “months of heated internal debate about the balance of power and the role of the military” in a time of crisis. “Supporters of the plan inside the Bush White House, including Vice President Dick Cheney’s office, saw the erratic response to the Sept. 11 attacks in 2001 and Hurricane Katrina in 2005 as a mandate for streamlining an emergency response process they considered clunky because it involved too many agencies.” Officials opposed to the plan argue the new structure places “too much power in the hands of too few people.” They also perceive the changes to be “part of the Bush administration’s broader efforts to enhance the power of the White House.” Supporters of the plan originally wanted to take the changes further, but according to the Times, “concerns about the perception of growing military influence in the emergency process set off an internal struggle, and the White House decided not to move ahead with a more ambitious proposal to give the power of the purse to the military arm, rather than FEMA, for budgeting the emergency operations, one official said.” A spokesman for the Pentagon will later describe the changes as a “minor tweaking” of the system. The changes are authorized by President Bush’s National Security Presidential Directive 51 (NSPD-51), which was signed in May 2007 (see May 9, 2007). [New York Times, 7/27/2009]

Entity Tags: White House MIlitary Office, Bush administration (43), Federal Emergency Management Agency, US Department of Defense, Richard (“Dick”) Cheney

Category Tags: Expansion of Presidential Power, Continuity of Government, Government Acting in Secret

Sparked by the official confirmation that Guantanamo detainee Mohamed al-Khatani was tortured (see January 14, 2009), Amnesty International calls for the incoming Obama administration and Congress to launch an independent commission of inquiry into human rights violations in the “war on terror.” In a press release, Amnesty International writes: “Torture is a crime under international law. The USA is obliged as a party to the UN Convention against Torture (see October 21, 1994) to investigate ‘wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.’ The same treaty requires it to submit the case to its competent authorities for the purpose of prosecution. The treaty, and international law more generally, precludes the invocation of exceptional circumstances or superior orders as justification for torture. Anyone who has authorized, committed, is complicit, or participated in torture must be brought to justice, no matter their level of office or former level of office. Yet the public acknowledgement that the USA has tortured al-Khatani was not accompanied by any news of efforts to bring those responsible to justice.” Such a government commission “must not be used to block or delay the prosecution of any individual against whom there is already sufficient evidence of wrongdoing. A criminal investigation into the torture of Mohamed al-Khatani is already long overdue.” The incoming president, Barack Obama, has already acknowledged that waterboarding, one of the “harsh interrogation techniques” used against Guantanamo detainees, is torture. “Next week, then, the USA will have a president who considers that torture has been committed by the USA,” Amnesty writes. “He will be under an obligation to ensure full individual and institutional accountability. There must be no safe havens for torturers.” As for al-Khatani, Amnesty believes the US should either release him or try him “in accordance with international fair trial standards in an independent and impartial court—not a military commission. No information obtained under torture, cruel, inhuman or degrading treatment should be admitted in any proceedings, except against the perpetrators of any such treatment as evidence that it occurred.” [Amnesty International, 1/14/2009]

Entity Tags: Barack Obama, Amnesty International, Obama administration, Mohamed al-Khatani

Timeline Tags: Torture of US Captives

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Gov't Violations of Prisoner Rights

Steven Bradbury, the outgoing head of the Justice Department’s Office of Legal Counsel (OLC), issues a legal opinion finding certain earlier opinions from the OLC invalid. Bradbury is referring to several memos issued by former OLC lawyers John Yoo, Jay Bybee, and others after the 9/11 attacks (see March 2, 2009).
'Doubtful Nature' - Bradbury writes that these opinions had not been relied upon since 2003, and notes that it is important to acknowledge in writing “the doubtful nature of these propositions.” The opinions “do not currently reflect, and have not for some years reflected, the views of the” OLC, Bradbury writes, “and on several occasions we have already acknowledged the doubtful nature of these propositions.”
President's Position - One portion of Bradbury’s memo says it is “not sustainable” to argue that the president’s power as commander in chief “precludes Congress from enacting any legislation concerning the detention, interrogation, prosecution, and transfer of enemy combatants.” Bradbury is referring to a 2002 memo that claimed President Bush could order the “rendition” of detainees to other countries without regard to Congressional legislation (see March 13, 2002).
'Novel and Complex Questions' - In repudiating the memos, Bradbury writes that they were the product of Yoo and others confronting what he calls “novel and complex questions in a time of great danger and under extraordinary time pressure.” [US Department of Justice, 1/15/2009 pdf file; New York Times, 3/2/2009; Reuters, 3/2/2009]
Response - Yale law professor Jack Balkin later notes that the memo does not repudiate “any of the Bush administration’s specific policies regarding surveillance, detention, and interrogation.” [Jack Balkin, 3/3/2009] In 2004, the Justice Department repudiated the so-called “golden shield” memo, written by Yoo and the then-chief counsel for Vice President Cheney, David Addington, which gave US personnel almost unlimited authority to torture prisoners (see August 1, 2002). The New York Times writes that Bradbury’s last-minute memo “appears to have been the Bush lawyers’ last effort to reconcile their views with the wide rejection by legal scholars and some Supreme Court opinions of the sweeping assertions of presidential authority made earlier by the Justice Department.” Walter Dellinger, who headed the OLC during the Clinton administration, says that Bradbury’s memo “disclaiming the opinions of earlier Bush lawyers sets out in blunt detail how irresponsible those earlier opinions were.” Dellinger says it is important to note that the Bush administration’s assertions “that Congress had absolutely no role in these national security issues was contrary to constitutional text, historical practice, and judicial precedent.” [New York Times, 3/2/2009] Bradbury, who like Yoo and Bybee may face disbarment, is careful to note that while the legal opinions are invalid, he is not suggesting that the authors did not “satisfy” professional standards. [Washington Post, 3/3/2009]

Entity Tags: John C. Yoo, Steven Bradbury, Office of Legal Counsel (DOJ), New York Times, Walter Dellinger, Jay S. Bybee, Jack Balkin, US Department of Justice

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Government Acting in Secret, Government Classification

President Barack Obama issues an executive order limiting the ability of former presidents to block the release of records from their time in the White House. Obama’s order overturns an executive order from former President Bush (see November 1, 2001) that is currently the subject of a federal lawsuit, and was found in part illegal by a federal judge in 2007. Obama’s order invalidates Bush’s order entirely. Obama’s order allows former presidents to ask the National Archives to keep certain documents private, but strips their power to compel the Archives to do so. The order also covers former vice presidents and the families of deceased presidents. “It’s a great signal to send on the president’s first day in office,” says Scott Nelson, a lawyer with the civil liberties group Public Citizen, which led the challenge to Bush’s order. Nelson says the order will make it easier for researchers to gain access to White House records.
Strips Power from Former Executives - Under the Presidential Records Act, former presidents can restrict access to some of their records, including confidential communications with advisers, for up to 12 years. Bush’s order extended that restriction indefinitely, and gave former vice presidents and even the families and heirs of deceased presidents the same power to restrict documents. Obama’s order limits claims of executive privilege to records concerning national security, law enforcement or internal communications; it also specifies that only living former presidents may request that papers not be made public, and gives them 30 days to say so once they get word of the archivist’s intention to release records. The order gives the Obama administration and the National Archives, not the former executives, the final decision-making power. Under Obama’s order, former Vice President Dick Cheney can no longer block access to records from his records during his eight years in the White House. Cheney is engaged in a lawsuit to block access to his vice-presidential records. [Washington Post, 1/21/2009]
Wide-Ranging Impact - Experts agree that the executive order could have wide-ranging impacts on a number of issues relating to the Bush administration. Douglas Kmiec, a conservative law professor and an expert on executive privilege, says the order could strongly impact current battles over Bush’s records, “whether it be the dismissal of US attorneys, whether it be other assertions of executive privilege dealing with White House emails and the like.” It could also affect investigations into the outing of CIA agent Valerie Plame, and the Bush administration’s efforts to precipitate a war with Iraq. [TPM Muckraker, 1/22/2009] Neil Eggleston, who served as White House counsel in the Clinton administration, says he believes the Obama order is specifically designed to pry loose information from the Bush administration about such issues. “This is absolutely about all those issues,” he says. In a sense, Eggleston continues, it is an order to the National Archivist: “It says, ‘Archivist—if Bush calls up and says don’t release certain papers, don’t listen to what he says, listen to what I say.’” [TPM Muckraker, 1/23/2009]

Entity Tags: National Archives and Records Administration, Barack Obama, Bush administration (43), George W. Bush, Richard (“Dick”) Cheney, Presidential Records Act, Douglas Kmiec, Scott Nelson, Neil Eggleston

Category Tags: Expansion of Presidential Power, Government Acting in Secret, Government Classification, Freedom of Speech / Religion

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

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

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Other Legal Changes, Detainments Outside US, Gov't Violations of Prisoner Rights, Government Acting in Secret, Government Classification, 2006 US Attorney Firings

The American Civil Liberties Union (ACLU) asks the Obama administration to publicly release some 50 secret Bush Justice Department memos that were written to justify the Bush administration’s interrogation and domestic spying programs. The Bush White House consistently refused to release the memos, citing national security, attorney-client privilege, and the need to protect the government’s deliberative process. The ACLU request comes after President Obama rescinded a 2001 executive order that gave government agencies broad legal cover to reject public disclosure requests (see January 21, 2009). Obama has asked agencies to be more transparent in deciding what documents can and cannot be released under the Freedom of Information Act; the ACLU intends to put Obama’s words to the test. “The president has made a very visible and clear commitment to transparency,” says Jameel Jaffer, the director of the ACLU’s National Security Project. “We’re eager to see that put into practice.” Many see the Justice Department memos, written by lawyers in the Office of Legal Counsel, as the “missing puzzle pieces” that will help explain the Bush administration’s antiterrorism policies. Critics of the Bush administration say that the memos may help determine whether officials of the former administration should be held accountable for legal opinions that justified waterboarding and other illegal interrogation practices. “We don’t have anything resembling a full picture of what happened over the last eight years and on what grounds the Bush administration believed it could order such methods,” says Jaffer. “We think the OLC memos are really central to that narrative.” The ACLU is aware of the memos’ existence, but not much else. Jaffer says: “There are about a dozen memos where we just have one or two lines about the subject matter and that’s it. When you put it all together you realize how much is still being held secret.” [McClatchy News, 1/28/2009]

Entity Tags: Jameel Jaffer, American Civil Liberties Union

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Other Legal Changes, Detainments Outside US, Gov't Violations of Prisoner Rights, Government Classification

The American Civil Liberties Union (ACLU) and other human rights organizations release over a thousand pages of government documents obtained through the Freedom of Information Act (FOIA). The documents provide new details of the Bush administration’s treatment of prisoners in its “global war on terror.” Among other things, the documents show a much closer collaboration between the CIA and the Defense Department than initially believed; the Defense Department was intimately involved with the CIA’s practices of indefinite “ghost” detentions and torture. The documents confirm the existence of a previously “undisclosed detention facility” at Afghanistan’s Bagram Air Base and details of the extensive abuse and torture of prisoners at that facility. They also show that the Defense Department worked to keep the Red Cross away from its detainees by refusing to register their capture with the International Committee of the Red Cross (ICRC) for two weeks or more, “to maximize intelligence collection,” a practice the Defense Department officials acknowledged in their private communications to be illegal under the Geneva Conventions.
CIA, Defense Department in Collusion? - The Center for Constitutional Rights notes, “These policies demonstrate the ease with which the CIA could have used DOD facilities as ‘sorting facilities’ without having to worry about ICRC oversight or revelation of the ghost detainee program.” The documents also include e-mails sent to Defense Department Transportation Command officials recommending that a number of prisoners slated for release from Guantanamo be detained longer, for fear of negative press coverage (see February 17, 2006). [AlterNet, 2/13/2009] “These newly released documents confirm our suspicion that the tentacles of the CIA’s abusive program reached across agency lines,” says Margaret Satterthwaite of New York University’s International Human Rights Clinic. “In fact, it is increasingly obvious that defense officials engaged in legal gymnastics to find ways to cooperate with the CIA’s activities. A full accounting of all agencies must now take place to ensure that future abuses don’t continue under a different guise.”
Heavy Redactions Thwart Intent of FOIA - Amnesty International’s Tom Parker notes that much of the information in the documents was blacked out before its release. “Out of thousands of pages, most of what might be of interest was redacted,” he says. “While the sheer number of pages creates the appearance of transparency, it is clear this is only the tip of the iceberg and that the government agencies have not complied with spirit of President Obama’s memo on Freedom of Information Act (FOIA) requests (see January 21, 2009). We call on Attorney General Eric Holder and the Obama administration to put teeth into the memo and work actively to comply with FOIA requests.” [Center for Constitutional Rights, 2/12/2009]

Entity Tags: US Department of Defense, Geneva Conventions, Central Intelligence Agency, Center for Constitutional Rights, Amnesty International, American Civil Liberties Union, International Committee of the Red Cross, Obama administration, International Human Rights Clinic, New York University, Margaret Satterthwaite, Tom Parker

Timeline Tags: Torture of US Captives

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Detainments Outside US, Gov't Violations of Prisoner Rights, Government Acting in Secret, Government Classification

Jonathan Hafetz of the American Civil Liberties Union calls the case of alleged al-Qaeda detainee Ali Saleh Kahlah al-Marri (see June 23, 2003) a key test of “the most far-reaching use of detention powers” ever asserted by the executive branch. Al-Marri has spent five years incarcerated in the Charleston Naval Brig without being charged with a crime. “If President Obama is serious about restoring the rule of law in America, they can’t defend what’s been done to Marri. They would be completely buying into the Bush administration’s war on terror,” he says. Hafetz, who is scheduled to represent al-Marri before the Supreme Court in April, compares the Bush administration’s decision to leave al-Marri in isolation to his client’s being stranded on a desert island. “It’s a Robinson Crusoe-like situation,” he adds. Hafetz says that among the issues to be decided is “the question of who is a soldier, and who is a civilian.” He continues: “Is the fight against terrorism war, or is it not war? How far does the battlefield extend? In the past, they treated Peoria as a battlefield. Can an American be arrested in his own home and jailed indefinitely, on the say-so of the president?” Hafetz wants the Court to declare indefinite detention by executive fiat illegal. He also hopes President Obama will withdraw al-Marri’s designation as an enemy combatant and reclassify him as a civilian; such a move would allow al-Marri to either be charged with crimes and prosecuted, or released entirely. Civil liberties and other groups on both sides of the political divide have combined to file 18 amicus briefs with the Court, all on al-Marri’s behalf. The al-Marri decision will almost certainly impact the legal principles governing the disposal of the approximately 240 detainees still being held at Guantanamo.
Opinion of Former Bush Administration Officials - Former Bush State Department counsel John Bellinger says of his counterparts in the Obama administration: “They will have to either put up or shut up. Do they maintain the Bush administration position, and keep holding [al-]Marri as an enemy combatant? They have to come up with a legal theory.” He says that Obama officials will find it more difficult to put their ideals into action: “Governing is different from campaigning,” he notes, and adds that Obama officials will soon learn that “they can’t just set the clocks back eight years, and try every terror suspect captured abroad in the federal courts.” Former Attorney General John Ashcroft calls keeping al-Marri and other “enemy combatants” locked away without charges or trials a “sound decision” to “maximize the national interest,” and says that in the end, Obama’s approach will be much like Bush’s. “How will he be different?” he asks. “The main difference is going to be that he spells his name ‘O-b-a-m-a,’ not ‘B-u-s-h.’”
Current Administration's Opinion - Obama spokesman Larry Craig sums up the issue: “One way we’ve looked at this is that we own the solution. We don’t own the problem—it was created by the previous administration. But we’ll be held accountable for how we handle this.” [New Yorker, 2/23/2009]

Entity Tags: John Ashcroft, Barack Obama, American Civil Liberties Union, Ali Saleh Kahlah al-Marri, Bush administration (43), US Supreme Court, Obama administration, Jonathan Hafetz, Larry Craig, John Bellinger

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Other Legal Changes, Detainments in US, Gov't Violations of Prisoner Rights, Government Acting in Secret

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

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

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Government Acting in Secret, Government Classification

Former Nixon White House counsel John Dean says that after reading the nine newly released Bush-era Justice Department memos that asserted sweeping powers for the president not granted by the Constitution (see March 2, 2009), “you’ve gotta almost conclude we had an unconstitutional dictator. It’s pretty deadly and pretty serious, what’s in these materials.” Anyone deemed a terrorist by President Bush could be kidnapped, incarcerated, and tortured, all without any legal recourse. “Who in this formula was supposed to decide that these were terrorists?” asks MSNBC host Keith Olbermann. Dean replies: “Well, according to these memos, that was rather limited to the president of the United States and there are no guidelines as to how he might describe who was or was not a terrorist. The president can unilaterally or, theoretically, even somebody he delegates can decide who indeed can be incarcerated, who can not. That is why I say, this is pretty close to being an unconstitutional dictator, in any definition under the law of this country.” [MSNBC, 3/2/2009; Raw Story, 3/3/2009]

Entity Tags: Bush administration (43), John Dean, US Department of Justice, George W. Bush, Keith Olbermann

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Government Acting in Secret, Government Classification

Time columnist Michael Scherer, writing about the nine just-released Bush administration memos from the Justice Department designed to grant President Bush extraordinary executive authority (see March 2, 2009), notes: “I know I am late on this, but every American should take note of the incredible neo-Orwellian, near-totalitarian powers that President Bush’s Justice Department granted the White House in the days after September 11.… They are certainly not based on a ‘conservative’ limited government reading of the constitution. They are, by almost every account, of doubtful constitutional merit. And if we wish to continue to teach our children that freedom and liberty are the bedrock of the American form of government, we should as citizens take care to make sure they do not become a precedent for future presidents to use in responding to attacks on the homeland.” [Time, 3/3/2009]

Entity Tags: Michael Scherer

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Government Acting in Secret, Government Classification

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

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

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Government Acting in Secret, Government Classification

Columnist and civil litigator Glenn Greenwald writes that the recently released Bush-era Justice Department memos documenting the enormous power Bush attempted to gather for himself (see March 2, 2009) mandates a wide-ranging investigation of the Bush administration’s criminal activities. He notes, “[T]here is almost certainly a whole slew of other activities that remain concealed, and very well may remain undisclosed for years” because of the apparent reluctance of the Obama administration to give serious consideration to such an investigation, or, as Greenwald writes, “a new administration that seems bizarrely desperate to keep concealed the secrets of the old one.” Greenwald continues: “The most vital point is that all of the documents released yesterday by the Obama [Justice Department] comprise nothing less than a regime of secret laws under which we were governed. Nothing was redacted when those documents yesterday were released because they don’t contain any national security secrets. They’re nothing more than legal decrees, written by lawyers. They’re just laws that were implemented with no acts of Congress, unilaterally by the executive branch. Yet even the very laws that governed us were kept secret for eight years. This is factually true, with no hyperbole: Over the last eight years, we had a system in place where we pretended that our ‘laws’ were the things enacted out in the open by our Congress and that were set forth by the Constitution. The reality, though, was that our government secretly vested itself with the power to ignore those public laws, to declare them invalid, and instead, create a whole regimen of secret laws that vested tyrannical, monarchical power in the president (see March 3, 2009). Nobody knew what those secret laws were because even Congress, despite a few lame and meek requests, was denied access to them. What kind of country lives under secret laws?” But, he writes: “If our political class had its way, even the bits and pieces we’ve now seen would continue to be hidden in the dark. Most of the specific individuals who initiated these measures may no longer be in power, but the institutions and the political and media elites who enabled all of it haven’t gone anywhere. They’re now actively working to keep as much as possible concealed and to insist that nothing should be done about any of it.” [Salon, 3/3/2009]

Entity Tags: Glenn Greenwald

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Government Acting in Secret, Government Classification

Legal experts and civil libertarians are “stunned” by the recently released memos from the Bush-era Justice Department which assert sweeping powers for the president not granted by the Constitution (see March 2, 2009 and March 3, 2009). Yale law professor Jack Balkin calls the memos a demonstration of the Bush “theory of presidential dictatorship.” Balkin continues: “They say the battlefield is everywhere. And the president can do anything he wants, so long as it involves the military and the enemy.… These views are outrageous and inconsistent with basic principles of the Constitution as well as with two centuries of legal precedents. Yet they were the basic assumptions of key players in the Bush administration in the days following 9/11.” George Washington University law professor Orin Kerr agrees. “I agree with the left on this one,” he says. The approach in the memos “was simply not a plausible reading of the case law. The Bush [Office of Legal Counsel, or OLC] eventually rejected [the] memos because they were wrong on the law—and they were right to do so” (see January 15, 2009). Balkin says the time period of most of the memos—the weeks and months following the 9/11 attacks—merely provided a convenient excuse for the administration’s subversion of the Constitution. “This was a period of panic, and panic creates an opportunity for patriotic politicians to abuse their power,” he says. [Jack Balkin, 3/3/2009; Los Angeles Times, 3/4/2009] Civil litigator and columnist Glenn Greenwald writes that the memos helped provide the foundation for what he calls “the regime of secret laws under which we were ruled for the last eight years… the grotesque blueprint for what the US government became.” [Salon, 3/3/2009] Duke University law professor Walter Dellinger says that, contrary to the memos’ assertion of blanket presidential powers in wartime, Congress has considerable powers during such a time. Congress has, according to the Constitution, “all legislative powers,” including the power “to declare war… and make rules concerning captures on land and water” as well as “regulation of the land and naval forces.” Dellinger, who headed the OLC during the Clinton administration, continues: “You can never get over how bad these opinions were. The assertion that Congress has no role to play with respect to the detention of prisoners was contrary to the Constitution’s text, to judicial precedent, and to historical practice. For people who supposedly follow the text [of the Constitution], what don’t they understand about the phrase ‘make rules concerning captures on land and water’?” [Los Angeles Times, 3/4/2009]

Entity Tags: Orin S. Kerr, US Department of Justice, Office of Legal Counsel (DOJ), Jack Balkin, Walter Dellinger, Glenn Greenwald, Bush administration (43)

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Government Acting in Secret, Government Classification

President Barack Obama orders a review of former President Bush’s signing statements. Bush often used signing statements to instruct administration officials how to implement, or to ignore, Congressional legislation and other laws (see Early 2005, January 13, 2006, and September 2007). Obama has sent memos to numerous federal agencies directing them to review Bush’s signing statements. White House press secretary Robert Gibbs says that other presidents have used signing statements to note potential problems and conflicts, and says Obama will continue that practice. But, Gibbs says, Obama will not use signing statements to disregard Congress’s intent in its legislation. [Associated Press, 3/9/2009]

Entity Tags: Barack Obama, Robert Gibbs, George W. Bush

Category Tags: Expansion of Presidential Power, Signing Statements

Reporter Seymour Hersh speaking at a 2007 forum on the media in Doha, Qatar.Reporter Seymour Hersh speaking at a 2007 forum on the media in Doha, Qatar. [Source: Reuters / Fadi Al-Assaad / MinnPost (.com)]In a wide-ranging seminar with former Democratic Vice President Walter Mondale and investigative journalist Seymour Hersh at the University of Minnesota, Hersh claims that he has evidence that the US operated what he calls an “executive assassination wing” during the Bush administration, perhaps controlled by the office of then Vice President Dick Cheney. [MinnPost (.com), 3/11/2009] (Hersh will later say he used the word “wing,” but it was widely misreported as “ring” in the media.) [CNN, 3/30/2009] Hersh says he will explain his charges more fully in an upcoming book. When asked about recent instances of a president exceeding his constitutional authority, Hersh gives a response that moves from CIA activities, through the Joint Special Operations Command, to the alleged “assassination wing”: “After 9/11, I haven’t written about this yet, but the Central Intelligence Agency was very deeply involved in domestic activities against people they thought to be enemies of the state. Without any legal authority for it. They haven’t been called on it yet. Right now, today, there was a story in the New York Times that if you read it carefully mentioned something known as the Joint Special Operations Command—JSOC it’s called. It is a special wing of our special operations community that is set up independently. They do not report to anybody, except in the Bush-Cheney days, they reported directly to the Cheney office. They did not report to the chairman of the Joint Chiefs of Staff or to Mr. [Robert] Gates, the secretary of defense. They reported directly to him.… Congress has no oversight of it. It’s an executive assassination wing essentially, and it’s been going on and on and on. Just today in the Times there was a story that its leaders, a three star admiral named [William H.] McRaven, ordered a stop to it because there were so many collateral deaths. Under President Bush’s authority, they’ve been going into countries, not talking to the ambassador or the CIA station chief, and finding people on a list and executing them and leaving. That’s been going on, in the name of all of us. It’s complicated because the guys doing it are not murderers, and yet they are committing what we would normally call murder. It’s a very complicated issue. Because they are young men that went into the Special Forces. The Delta Forces you’ve heard about. Navy Seal teams. Highly specialized. In many cases, they were the best and the brightest. Really, no exaggerations. Really fine guys that went in to do the kind of necessary jobs that they think you need to do to protect America. And then they find themselves torturing people. I’ve had people say to me—five years ago, I had one say: ‘What do you call it when you interrogate somebody and you leave them bleeding and they don’t get any medical committee and two days later he dies. Is that murder? What happens if I get before a committee?’ But they’re not gonna get before a committee.” Mondale says of Cheney and his office that “they ran a government within a government.” Hersh adds, “Eight or nine neoconservatives took over our country.” Mondale notes that the precedents of abuse of vice presidential power by Cheney would remain “like a loaded pistol that you leave on the dining room table.” [MinnPost (.com), 3/11/2009] CIA spokesman George Little responds to Hersh’s allegation by writing: “I saw your story on Seymour Hersh’s recent allegations regarding CIA activities since 9/11. If you wish, you can attribute the quoted portion that follows to me, in name, as a CIA spokesman: ‘This is utter nonsense.’” [MinnPost (.com), 3/12/2009]

Entity Tags: Seymour Hersh, William H. McRaven, Joint Special Operations Command, George W. Bush, George Little, Central Intelligence Agency, Walter Mondale, Richard (“Dick”) Cheney

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Government Acting in Secret

Former Nixon White House counsel John Dean says that the allegation of an “executive assassination wing,” as recently made by investigative reporter Seymour Hersh (see March 10, 2009), could well be a war crime if it is true. Both Dean and MSNBC host Keith Olbermann note that if true, Cheney’s actions could well violate a 1976 executive order that states in part, “No employee of the United States government shall engage in or conspire to engage in political assassination.” Dean says: “[F]ighting terrorism is not dealing with tiddlywinks. We want our government to deal with the most effective tools they have. But they also have to be legal. The executive order, really, is nothing more than direction to the executive branch and the presidency is the only one who you can even argue might have the authority to engage in assassinations. It’s an unresolved question. So, it’s potentially a war crime, it’s potentially just outright murder, and it could clearly be in violation of the Ford executive order.” In the same broadcast, author and political analyst Howard Fineman says of Hersh’s report: “In checking around in the intelligence community today, I can say this, you know, Seymour Hersh is somebody they respect. They don’t always trust. But they put it this way, as one of them said to me, ‘Look, I don’t know anything about this specifically at all, but I wouldn’t dismiss what Sy Hersh is saying without checking carefully.’ That’s their backhanded way of saying it’s worth looking into, for sure.” [MSNBC, 3/12/2009]

Entity Tags: Seymour Hersh, Howard Fineman, John Dean, Keith Olbermann, Richard (“Dick”) Cheney

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Government Acting in Secret

CNN anchor Wolf Blitzer interviews investigative journalist Seymour Hersh, who recently alleged that an “executive assassination wing” operated out of the White House (see March 10, 2009). Blitzer notes that the entity Hersh cited, the Joint Special Operations Command (JSOC), denies Hersh’s claim, and says, in Blitzer’s words, “their forces operate under established rules of engagement and the law of armed conflict.” The JSOC “has no command and control authorities over the US military,” the JSOC has told Blitzer. Additionally, former Bush national security expert Frances Townsend has denied Hersh’s claim.
Not New Reporting - Hersh tells Blitzer that though he has not written specifically about the “assassination wing,” he and others have written about the actions of the JSOC well before now. “[I]t’s a separately independent unit that does not report to Congress, at least in the years I know about.… It has been given executive authority by the president in as many as 12 countries to go in and kill we’re talking about high value targets. That’s absolutely correct.” He says that such actions are not only illegal, but have no basis in intelligence. “The idea that you’re telling a group of American combat soldiers,” he says, “[t]he idea that we have a unit set up who goes after high-value targets who up to a certain point I know for sure until very recently were clearing lists. That doesn’t mean Cheney has an assassination unit that he says I want to go get somebody. That’s how it sort of played out in the press. The idea that we have a unit that goes around and without reporting to Congress, Congress knows very little about this group, can’t get clearings, can’t get hearings, can’t get even a classified hearings on it. Congresspeople have told me this. Those are out and has authority for the president to go into a country without telling the CIA station chief or the ambassador and whack somebody and I’m sorry, Wolf, I have a lot of problems with that.”
Poor Choice of Phrase - Hersh says he regrets using the phrase “executive assassination wing,” because it is a “loaded phrase.” Word choice aside, Hersh says: “It comes down to the same thing, that you can—you’ve delegated authority to troops in the field to hit people on the basis of whatever intelligence they think is good and I can tell you it’s always not good and sometimes things get very bloody.… The bottom line is, it’s—if it were the way your little presentation set up, that everything was checked and cleared, in fact, it was an awful lot of delegation to this group, which does not brief the Congress. And this does raise profound questions of constitutional authority. It’s the same questions that have come up repeatedly in the Bush administration. That is a unitarian president, the notion that a president can do things without telling Congress and unilaterally. This is an extension of that issue.”
Implied Confirmation from Former Cheney Adviser - John Hannah, the former national security adviser to Vice President Cheney, says Hersh’s allegations are “not true,” but in his next statement, he seems to confirm Hersh’s allegations to an extent. Blitzer says: “Explain exactly what’s going on in terms of a list. Is there a list of terrorists, suspected terrorists, out there who can be assassinated?” Hannah replies: “There is—there’s clearly a group of people that go through a very extremely well-vetted process—interagency process, as I think was explained in your piece, that have committed acts of war against the United States, who are at war with the United States, or is suspected of planning operations of war against the United States, who authority is given, to our troops in the field in certain war theaters to capture or kill those individuals. That is certainly true.… Osama bin Laden and his number two are right at the top of the list. [The number of individuals to be assassinated] is a small group and the point is that it is very, very heavily vetted throughout the interagency process.” Hannah says that he has trouble believing that Congress was not aware of actions, presumably including possible assassinations, carried out by the JSOC: “I don’t know exactly what the consultations are with the Congress, but it’s hard for me to believe that those committee chairman and the leadership on the Hill involved in intelligence and armed services, if they want to know about these operations, cannot get that information through the Defense Department.” Asked if such assassinations are legal and Constitutional, Hannah says: “There is no question. And in a theater of war, when we are at war, and there’s no doubt, we are still at war against al-Qaeda in Iraq, al-Qaeda in Afghanistan, and on that Pakistani border, that our troops have the authority to go out after and capture and kill the enemy, including the leadership of the enemy.” [CNN, 3/30/2009; MinnPost (.com), 3/31/2009]

Entity Tags: Osama bin Laden, Frances Townsend, Seymour Hersh, US Department of Defense, Wolf Blitzer, Bush administration (43), Al-Qaeda, Joint Special Operations Command, John Hannah

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Government Acting in Secret

Investigative reporter Seymour Hersh discusses his recent allegation that what he calls an “executive assassination wing” was run from the office of former Vice President Dick Cheney (see March 10, 2009). Interviewer Amy Goodman opens her segment with Hersh by playing what was apparently an implicit confirmation, to an extent, of Hersh’s claims from a former Cheney aide (see March 30, 2009). Hersh notes that the comments from the former aide, John Hannah, verify that “yes, we go after people suspected—that was the word he used—of crimes against America. And I have to tell you that there’s an executive order, signed by Jerry Ford, President Ford, in the ‘70s, forbidding such action. It’s not only contrary—it’s illegal, it’s immoral, it’s counterproductive.” Of the allegations that the “assassination wing” is operated through the military’s Joint Special Operations Command (JSOC), Hersh says: “[T]he problem with having military go kill people when they’re not directly in combat, these are asking American troops to go out and find people and… they go into countries without telling any of the authorities, the American ambassador, the CIA chief, certainly nobody in the government that we’re going into, and it’s far more than just in combat areas. There’s more—at least a dozen countries and perhaps more. [President Bush] has authorized these kinds of actions in the Middle East and also in Latin America, I will tell you, Central America, some countries. They’ve been—our boys have been told they can go and take the kind of executive action they need, and that’s simply—there’s no legal basis for it.… [T]he idea that the American president would think he has the constitutional power or the legal right to tell soldiers not engaged in immediate combat to go out and find people based on lists and execute them is just amazing to me.… And not only that, Amy, the thing about George Bush is, everything’s sort of done in plain sight. In his State of the Union address (see 9:01 pm January 28, 2003)… about a month and a half before we went into Iraq, Bush was describing the progress in the war, and he said—I’m paraphrasing, but this is pretty close—he said that we’ve captured more than 3,000 members of al-Qaeda and suspected members, people suspected of operations against us. And then he added with that little smile he has, ‘And let me tell you, some of those people will not be able to ever operate again. I can assure you that. They will not be in a position.’ He’s clearly talking about killing people, and to applause. So, there we are. I don’t back off what I said. I wish I hadn’t said it ad hoc… sometimes when you speak off the top, you’re not as precise.” JSOC, Hersh explains, is a group of Navy Seals, Delta Force soldiers, and other “commandos” (a word the soldiers don’t prefer, but, Hersh says, most journalists use), which has been “transmogrified, if you will, into this unit that goes after high-value targets.” Hersh explains the involvement of Cheney’s office: “And where Cheney comes in and the idea of an assassination ring—I actually said ‘wing,’ but of an assassination wing—that reports to Cheney was simply that they clear lists through the vice president’s office. He’s not sitting around picking targets. They clear the lists. And he’s certainly deeply involved, less and less as time went on, of course, but in the beginning very closely involved.” Goodman concludes by asking, “One question: Is the assassination wing continuing under President Obama?” Hersh replies: “How do I know? I hope not.” [Democracy Now!, 3/31/2009]

Entity Tags: Seymour Hersh

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Government Acting in Secret

Former Bush defense official Douglas Feith claims he had nothing to do with the Bush administration’s torture policies. Feith makes his remarks in response to a recent announcement that a Spanish court would consider filing criminal charges against him and five other former Bush officials “over allegations they gave legal cover for torture at Guantanamo.” Appearing on Fox News, Feith says he never approved any torture policies: “I’m being criticized for a position that I never advocated. And so the facts are just wrong.” Feith says he merely gave President Bush “advice” and had no role in “directing” torture policy: “But there’s also a broader point of principle here, which is what the Spanish authorities are considering doing is indicting people, former US government officials for giving advice to the president. And the idea that a foreign official can disagree with advice given to the president, they’re not talking about action. And they’re not even talking about directing people to take action. They’re talking about people who were advising the president on policy and legal questions. This is an effort to intimidate US government officials.” [Think Progress, 3/31/2009] But Feith has bragged before of his influence on Bush administration torture policies, telling British author and law professor Phillippe Sands that he played a key role in ensuring that Geneva Convention policies did not apply to detainees (see Early 2006).

Entity Tags: Phillippe Sands, Douglas Feith, Bush administration (43)

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Gov't Violations of Prisoner Rights

The Food and Drug Administration (FDA) announces that, in line with a judge’s recent ruling, it will approve the sale of the so-called “morning-after” emergency contraception pill to 17-year olds without a doctor’s prescription. A judge recently ruled in favor of the Center for Reproductive Rights (CRR) in a lawsuit against the FDA (see January 21, 2005 and After). Under the Bush administration, the FDA ruled that the pill, called “Plan B,” could not be sold without a prescription (see May 6, 2004 and After), a decision partially reversed in 2006. Conservative groups say the decision will make it more difficult for parents to supervise their teens; women’s rights groups say the decision strengthens the rights of women. District Judge Edward Korman ruled that the FDA’s political appointees placed politics over science in its decision to restrict over-the-counter (OTC) sales of the drug; he wrote that evidence showed White House officials pressured the FDA to reject the drug’s OTC sales. His ruling orders the FDA to allow OTC sales to 17-year olds, and to evaluate whether all age restrictions should be lifted. CRR’s Nancy Northrup says, “It’s a good indication that the agency will move expeditiously to ensure its policy on Plan B is based solely on science.” Wendy Wright of the conservative action group Concerned Women for America says, “Parents should be furious at the FDA’s complete disregard of parental rights and the safety of minors.” In 2008, a judge ruled that conservative groups had failed to prove that the drug posed a risk to anyone (see March 4, 2008). Former FDA official Susan Wood, who resigned in 2005 over the issue, says the battle over Plan B came to symbolize just how politicized the agency became under President Bush. “The FDA got caught up in a saga, it got caught up in a drama,” she says. “This issue served as a clear example of the agency being taken off track, and it highlighted the problems FDA was facing in many other areas.” [Associated Press, 4/22/2009; Washington Post, 4/23/2009] “We need to have a very strong and science-based agency, and this is one of those steps that will help strengthen it,” Wood says. [USA Today, 3/23/2009]

Entity Tags: George W. Bush, Bush administration (43), Center for Reproductive Rights, Food and Drug Administration, Susan Wood, Wendy Wright, Nancy Northrup, Edward Korman

Timeline Tags: US Health Care

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power

CIA Director Leon Panetta is informed by the agency’s Counterterrorist Center that it has a program to assassinate or capture al-Qaeda leaders. The program was established shortly after 9/11, but has never become operational (see Shortly After September 17, 2001). Panetta immediately cancels the program. [New York Times, 7/14/2009] CIA spokesman George Little says the decision was “clear and straightforward,” as Panetta “knew it [the program] hadn’t been successful.” [Washington Post, 8/20/2009] There is no resistance inside the CIA to this decision, apparently because the program is not fully operational and has not yet been briefed to Congress. [New York Times, 7/12/2009]
CIA Was Reviewing Program - It is unclear why Panetta is informed of the program at this time. However, the Counterterrorist Center has recently conducted a review of it, so he may learn of its existence due to the review, which will be presented to the White House and the Congressional intelligence committees. [New York Times, 8/20/2009]
Why Was Panetta Not Told Before? - It is also unclear why Panetta, who was confirmed as CIA director four months ago, was not told of the program earlier. One explanation is that it is because the program was not operational. “It’s a capability that wasn’t being used, so it wasn’t a front-burner issue,” says one unnamed official. Another retired official familiar with the program’s details says, “It would have been a big deal if it was operational, but since it was not, it’s not a big deal.” However, several former CIA officers and intelligence experts find this explanation unconvincing. According to Time magazine, “For one thing, they say, the mere fact that the program apparently merited [former Vice President Dick] Cheney’s close attention should have been a red flag.” A former operations expert says, “Even if the program was dormant, the top officials would have known about Cheney’s instructions, and they should have told Panetta right away.” Another retired senior official puts it more bluntly, saying, “[Given Cheney’s interest,] I don’t know why the program was not on the new director’s desk within his first two weeks on the job.” He adds, “The speed of Panetta’s actions when he was informed tells me that the program was pretty important.” Paul Pillar, a former deputy director of the Counterterrorist Center, comments, “In retrospect, the [Cheney] angle ought to be sufficient grounds for someone to think, this does deserve the boss’s attention.” [New York Times, 7/14/2009]

Entity Tags: Leon Panetta, Central Intelligence Agency, Counterterrorist Center, Paul R. Pillar

Timeline Tags: Complete 911 Timeline, War in Afghanistan

Category Tags: Expansion of Presidential Power, Government Acting in Secret

At an emergency meeting, CIA Director Leon Panetta tells the House and Senate intelligence committees of a CIA program to assassinate and capture al-Qaeda leaders (see Shortly After September 17, 2001). [New York Times, 7/14/2009; Washington Post, 8/20/2009; New York Times, 8/20/2009] Panetta learned of the program the previous day and immediately canceled it (see June 23, 2009). The lawmakers had not previously received information about the program, apparently at the direction of former Vice President Dick Cheney (see 2002). Panetta says he thinks the lawmakers should have been told earlier, because the program had moved beyond the planning stage and therefore deserved Congressional scrutiny. [Washington Post, 8/20/2009; New York Times, 8/20/2009]

Entity Tags: Central Intelligence Agency, Senate Intelligence Committee, House Intelligence Committee, Leon Panetta

Timeline Tags: Complete 911 Timeline

Category Tags: Expansion of Presidential Power, Government Acting in Secret

The New York Times reports that the ultra-secretive Continuity of Government program, which was activated and expanded by the Bush administration following the 9/11 attacks, is kept in tact by the new administration of Barrack Obama. According to the Times, White House officials draw “no distance between their own policies and those left behind by the Bush administration.” Officials refuse to discuss details of the continuity plans, but say the current policy is “settled.” [New York Times, 7/27/2009] Shortly before leaving office, Bush officials updated the plans and increased the role of the White House and the military (see January 2009).

Entity Tags: Obama administration, Bush administration (43)

Category Tags: Expansion of Presidential Power, Continuity of Government

The House Intelligence Committee launches an investigation into whether the CIA broke the law by failing to notify Congress about an agency program to assassinate and capture al-Qaeda leaders. The program was initiated shortly after 9/11 (see Shortly After September 17, 2001), but Congress was not notified of it, apparently at the instruction of former Vice President Dick Cheney (see 2002), until it was shut down in July 2009 (see June 23, 2009 and June 24, 2009). [Washington Post, 8/20/2009; New York Times, 8/20/2009] Congressional Democrats are furious that the program was not shared with the House Committee and with its Senate counterpart. However, some Congressional Republicans say that as Congress had already approved broad authorities for the CIA after 9/11, the CIA was not required to brief lawmakers on specifics about the program, which never became operational. [New York Times, 7/12/2009; New York Times, 7/14/2009]

Entity Tags: House Intelligence Committee, Central Intelligence Agency

Timeline Tags: Complete 911 Timeline

Category Tags: Expansion of Presidential Power, Government Acting in Secret

Congress passes a defense spending bill with controversial provisions authorizing the indefinite military detention, or rendering to a foreign country or entity, without charge or trial, of any person, including US citizens, detained, arrested, or captured anywhere in the world, including the US. The bill is the 2012 National Defense Authorization Act (NDAA) (H.R. 1540 and S. 1867). [GovTrack, 12/31/2012] The NDAA created controversy soon after the indefinite detention provisions were revealed (see July 6, 2011 and after). Civil liberties and human rights advocates raised concerns about sections 1026, 1027, and 1028, which restrict transfers and releases of prisoners from the US prison at Guantanamo, including those found to be innocent, but the most controversial parts of the bill are Sections 1021 and 1022, which provide for indefinite military detention. A federal judge will later issue a preliminary injunction barring enforcement of Section 1021, finding it unconstitutional (see May 16, 2012). [Verdict, 12/21/2011]
Detention Authorities Currently Unclear, Not Settled by NDAA - The Supreme Court ruled by plurality in Hamdi v. Rumsfeld (2004) (see June 28, 2004 that Yaser Esam Hamdi, a US citizen captured by the Northern Alliance in Afghanistan and alleged to have been armed and traveling with a Taliban unit (see December 2001), could be held by the military without charge or trial until the end of hostilities authorized by the 2001 Authorization for Use of Military Force (AUMF). In other circumstances, such as persons not engaged in armed combat with US forces, or persons arrested or captured away from a battlefield, or inside the United States, the rights of prisoners and the legality of indefinite military detention are unsettled issues, and the NDAA provides no clarification. The AUMF makes no reference to the detention of prisoners or military operations inside the United States, but both the Bush and Obama administrations have consistently interpreted language giving the president authority to use “all necessary and appropriate force” to include broad powers of detention. Due to the lack of clear expression of the scope of these authorities in the AUMF, as well as potential conflicts with the Constitution, related case law includes differing judicial opinions. Supreme Court rulings have not addressed all the questions raised by the complexity of the issues involved. [New York Times, 12/1/2011; Secrecy News, 2/6/2012; Elsea, 6/11/2012 pdf file; Salon, 12/15/2012] The NDAA states in 1021(d), “Nothing in this section is intended to limit or expand the authority of the president or the scope of the [AUMF],” and (e): “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” [Public Law 112 81 pdf file] This language was included following the nearly unanimous passage of Senate Amendment (SA) 1456. It was a compromise, following the defeat of three other amendments proposed by members of Congress concerned about the NDAA’s blanket detention authority: SA 1107, introduced by Senator Mark Udall (D-CO), which would have removed detention provisions from the bill and required the executive branch to submit a report to Congress on its interpretation of its detention powers and the role of the military; SA 1125, introduced by Senator Diane Feinstein (D-CA), which would have limited the definition of covered persons to those captured outside US borders; and SA 1126, also introduced by Feinstein, which would have would have excluded US citizens from indefinite detention provisions. [Senate, 12/1/2011; The Political Guide, 12/31/2012] Supporters of broad detention authority say the entire world is a battlefield, and interpret Hamdi to mean any US citizen deemed an enemy combatant can legally be detained indefinitely by the military. Opponents point out that Hamdi was said to have been fighting the US in Afghanistan, and that military detention without trial is limited to those captured in such circumstances. Opponents also say the 1971 Non-Detention Act outlawed indefinite detention of US persons arrested in the US. Feinstein, who submitted SA 1456 inserting the compromise language, states: “[T]his bill does not change existing law, whichever side’s view is the correct one. So the sponsors can read Hamdi and other authorities broadly, and opponents can read it more narrowly, and this bill does not endorse either side’s interpretation, but leaves it to the courts to decide.” Senator Carl Levin (D-MI), sponsor of the original NDAA in the Senate, agrees, saying: “[W]e make clear whatever the law is. It is unaffected by this language in our bill.” [Senate, 12/1/2011]
NDAA 'Affirms' Authority Not Expressly Granted in AUMF, Further Muddies Already Unclear Powers - In the NDAA, Congress attempts to settle some of the aforementioned legal questions by asserting in the NDAA that these authorities were included in the AUMF or that the president already possessed them (unless the courts decide otherwise). Section 1021(a) states: “Congress affirms that the authority of the president to use all necessary and appropriate force pursuant to the [AUMF]… includes the authority for the Armed Forces of the United States to detain covered persons (as defined in sub-section (b)) pending disposition under the law of war… (c)(1) until the end of the hostilities authorized by the [AUMF].” This clear statement regarding detention authority is an implicit acknowledgment that the AUMF neither explicitly authorizes indefinite military detention, nor spells out the scope of such authority. As noted above, both the George W. Bush and Obama administrations, citing the AUMF, have claimed this authority, and some courts have upheld their interpretation. However, as noted by critics of the bill such as the American Civil Liberties Union (ACLU), Human Rights Watch (HRW), and constitutional scholar Glenn Greenwald, this is the first time Congress has codified it. Also, despite Congress’s assertion in the NDAA that it does not “expand… the scope of the [AUMF],” the language in the bill does exactly that. The AUMF pertained only to those responsible for the 9/11 attacks, or those who harbored them. Subsection (b)(2) of the NDAA expands the definition of covered persons and activities to include “[a] person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.” Terms such as “substantially supported,” “directly supported,” and “associated forces” are not defined in the NDAA and are thus subject to interpretation, introducing new ambiguities. In addition, though the AUMF does not explicitly authorize it, the NDAA clearly covers any person, including US persons, “captured or arrested in the United States,” should the courts decide that the AUMF did, in fact, authorize this, or that it is otherwise constitutional. A federal judge will later issue a preliminary injunction barring enforcement of this section of the NDAA, in part because of its conflicting, vague language but also because of her finding that it infringes on the right to due process, and to freedom of speech and association (see May 16, 2012). [Public Law 112 81 pdf file; American Civil Liberties Union, 12/14/2012; Human Rights Watch, 12/15/2012; Salon, 12/15/2012]
Section 1022: Mandatory Military Custody for Non-US Citizen Members of Al-Qaeda - Section 1022 requires that those determined to be members of al-Qaeda or “an associated force” and who “participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners” be held in “military custody pending disposition under the law of war.” This section is somewhat less controversial than section 1021 as it is more specific and limited in scope, and contains an exemption for US citizens, such that section 1022 may be applied to US citizens, but is not required to be: (b)(1) “The requirement to detain a person in military custody under this section does not extend to citizens of the United States.” [Public Law 112 81 pdf file]
Obama Administration Insisted on Broad Detention Authority - According to Senators Levin and Lindsey Graham (R-SC), the Obama administration required that detention authorities be applicable to US citizens, including those arrested in the US. Levin says that “language which precluded the application of section 1031 [1021 in the final bill] to American citizens was in the bill we originally approved in the Armed Services Committee, and the administration asked us to remove the language which says that US citizens and lawful residents would not be subject to this section.” [Senate, 11/17/2011] Graham says: “The statement of authority I authored in 1031 [1021 in final bill], with cooperation from the administration, clearly says someone captured in the United States is considered part of the enemy force regardless of the fact they made it on our home soil. The law of war applies inside the United States not just overseas.” [Senate, 11/17/2011]
How Congress Votes - With President Obama having signaled he will sign the bill, the Senate votes 86-13 in favor, with one abstention. Six Democrats and six Republicans vote against it, along with Senator Bernie Sanders (I-VT). [Open Congress, 12/15/2011] The House votes 283-136 in favor of the bill, with 14 abstentions. Democrats are evenly divided, with 93 voting for the NDAA and 93 against. Republicans voting are overwhelmingly in favor: 190-43, almost four out of five. Obama will sign the NDAA into law by December 31, 2011 (see December 31, 2011). [Open Congress, 12/14/2011]
Fallout over Bill - The same day Congress votes to pass the bill, two senators who voted for it, Feinstein and Patrick Leahy (D-VT), introduce a bill to restrict presidential authority to indefinitely detain US citizens (see December 15, 2011). A poll that will be conducted shortly after the bill is passed finds that only one in four “likely voters” approve of it (see December 22-26, 2011). Less than six months after the bill is signed into law, a federal judge will issue a preliminary injunction barring enforcement under section 1021 (see May 16, 2012), in response to a lawsuit that will be filed by seven activists and journalists (see January 13, 2012).

Entity Tags: Bernie Sanders, George W. Bush, Dianne Feinstein, Carl Levin, Glenn Greenwald, Patrick J. Leahy, Barack Obama, Mark Udall, Human Rights Watch, American Civil Liberties Union

Category Tags: Citizenship Rights, Freedom of Speech / Religion, Impositions on Rights and Freedoms, Expansion of Presidential Power, Detainments Outside US, Detainments in US, Gov't Violations of Prisoner Rights

Senator Dianne Feinstein (D-CA), joined by 13 Democrats and Republicans as co-sponsors, sponsors a bill to ban indefinite detention of US citizens and legal residents arrested in the United States. Feinstein does this on the same day that she and a number of her co-sponsors vote for the 2012 National Defense Authorization Act (NDAA), an annual ‘must pass’ defense spending bill that contains controversial provisions authorizing indefinite military detention of anyone, including US citizens arrested in the United States, accused of supporting groups hostile to the United States. Only 13 senators vote against the NDAA (see December 15, 2011). President Obama will sign the NDAA into law on December 31 (see December 31, 2011). The bill sponsored by Feinstein, S. 2003: Due Process Guarantee Act (DPGA), only exempts US citizens and legal residents from indefinite detention if arrested in the United States: “An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an act of Congress expressly authorizes such detention.” The NDAA also authorizes prisoners to be rendered and transferred to the custody of foreign countries and entities. As the DPGA does not explicitly ban this practice concerning US citizens and legal residents arrested in the United States, it is unclear what impact it would have, if any, on this particular aspect of the NDAA. [GovTrack.us, 12/15/2011] Feinstein says in a press release issued the same day: “We must clarify US law to state unequivocally that the government cannot indefinitely detain American citizens inside this country without trial or charge. I strongly believe that constitutional due process requires US citizens apprehended in the US should never be held in indefinite detention. And that is what this new legislation would accomplish.” [US Senator, 12/15/2011] According to a press release issued by co-sponsor Senator Patrick Leahy (D-VT), the purpose of the DPGA is to “make clear that neither an authorization to use military force nor a declaration of war confer unfettered authority to the executive branch to hold Americans in indefinite detention.” In the 2004 Supreme Court opinion in Hamdi v. Rumsfeld, Justice Sandra Day O’Connor stated unequivocally, “We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.” [US Senator, 12/15/2011] As of August 2012, the DPGA will have a total of 30 co-sponsors. [GovTrack.us, 12/15/2011]

Entity Tags: National Defense Authorization Act of 2012, Patrick J. Leahy, Dianne Feinstein, Due Process Guarantee Act of 2011

Category Tags: Expansion of Presidential Power, Detainments Outside US, Detainments in US, Gov't Violations of Prisoner Rights

A public opinion poll finds the 2012 National Defense Authorization Act (NDAA), which provides for indefinite military detention of anyone accused of supporting groups hostile to the United States, has low support among the general public. The poll, conducted by IBOPE (formerly known as Zogby) shortly after the bill is passed by Congress (see December 15, 2011), finds that just 24 percent of Americans who are “likely voters” say they support the NDAA, and only 4 percent strongly support it. Thirty-eight percent oppose it, and another 38 percent are unsure. Thirty percent of Republicans, 22 percent of independents, and 21 percent of Democrats approve of the law. The results of the poll will be released on January 6, 2012, after President Obama signs the bill into law (see December 31, 2011). The bill began generating controversy six months ago, after the American Civil Liberties Union highlighted the indefinite detention provisions (see July 6, 2011 and after). [IBOPE Inteligência, 1/6/2012]

Entity Tags: Zogby International, IBOPE Inteligência

Category Tags: Expansion of Presidential Power, Detainments Outside US, Detainments in US, Gov't Violations of Prisoner Rights

US District Court Judge Katherine B. Forrest (Southern Division, New York) finds a controversial section of the 2012 National Defense Authorization Act (NDAA) unconstitutional and issues a preliminary injunction barring enforcement. Section 1021(b)(2) of the NDAA authorizes indefinite military detention without trial of any person “who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces” (see December 15, 2011). The law makes no exception for US persons. It has been under review by the court because seven individuals (journalists, activists, and politicians) sued, alleging this section is unconstitutional because it violates their First Amendment right to freedom of speech and association and Fifth Amendment right to due process, and that it imposes military jurisdiction on civilians in violation of Article III and the Fifth Amendment (see January 13, 2012). [OPINION AND ORDER: 12 Civ. 331 (KBF) Hedges et al v. Obama, preliminary injunction enjoining enforcement of NDAA Section 1021, 5/16/2012]
Judge Finds NDAA Undermines Protected Speech and Association - The plaintiffs argued that, due to their association with and/or reporting on al-Qaeda and the Taliban in the course of their work as journalists and activists, they might be subject to detention under § 1021, and that, due to the vagueness of the law, there was no way to know if the law could be used against them. In testimony and briefs, the plaintiffs gave examples of how they had altered their speech and behavior out of fear they might be subject to detention. In her Opinion and Order, Forrest notes: “The Government was unable to define precisely what ‘direct’ or ‘substantial’ ‘support’ means.… Thus, an individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so.” And: “The Government was given a number of opportunities at the hearing and in its briefs to state unambiguously that the type of expressive and associational activities engaged in by plaintiffs—or others—are not within § 1021. It did not. This Court therefore must credit the chilling impact on First Amendment rights as reasonable—and real. Given our society’s strong commitment to protecting First Amendment rights, the equities must tip in favor of protecting those rights.” [OPINION AND ORDER: 12 Civ. 331 (KBF) Hedges et al v. Obama, preliminary injunction enjoining enforcement of NDAA Section 1021, 5/16/2012]
Judge Rejects All Three Arguments Made by the Government - Forrest summarizes the government’s position in this way: “[F]irst, that plaintiffs lack standing; second, that even if they have standing, they have failed to demonstrate an imminent threat requiring preliminary relief; and finally, through a series of arguments that counter plaintiffs’ substantive constitutional challenges, that Section 1021 of the NDAA is simply an ‘affirmation’ or ‘reaffirmation’ of the authority conferred by the 2001 Authorization for Use of Military Force.” Rejecting the first and second arguments, Forrest finds the plaintiffs do have standing because their fear of imminent indefinite detention without charge or trial is reasonable, due to the vagueness of § 1021 and the government’s failure to state that the plaintiff’s activities aren’t covered under section 1021, leaving the plaintiffs with no way of knowing if they might be subject to detention. Furthermore, Forrest finds the plaintiffs have suffered actual harm, evidenced by incurring expenses and making changes in speech and association due to fear of potential detention. Regarding the third argument, Forrest rejects the idea that § 1021 could simply be affirming the AUMF, because “[t]o so hold would be contrary to basic principles of legislative interpretation that require Congressional enactments to be given independent meaning”; otherwise § 1021 would be “redundant” and “meaningless.” Furthermore, Forrest finds § 1021 of the NDAA is substantively different than the AUMF; it is not specific in its scope and “lacks the critical component of requiring… that an alleged violator’s conduct must have been, in some fashion, ‘knowing.’” [OPINION AND ORDER: 12 Civ. 331 (KBF) Hedges et al v. Obama, preliminary injunction enjoining enforcement of NDAA Section 1021, 5/16/2012]
Judge Finds Lawsuit Will Likely Succeed on Merits, Justifying Injunction - Based on the information put forward by the seven plaintiffs and the government, Forrest concludes the lawsuit will likely succeed on its merits, thus it should be allowed to proceed, stating: “This Court is left then, with the following conundrum: plaintiffs have put forward evidence that § 1021 has in fact chilled their expressive and associational activities; the Government will not represent that such activities are not covered by § 1021; plaintiffs’ activities are constitutionally protected. Given that record and the protections afforded by the First Amendment, this Court finds that plaintiffs have shown a likelihood of succeeding on the merits of a facial challenge to § 1021.” Forrest also notes that issuing a preliminary injunction barring enforcement is unusual, but called for given the evidence and circumstances, stating: “This Court is acutely aware that preliminarily enjoining an act of Congress must be done with great caution. However, it is the responsibility of our judicial system to protect the public from acts of Congress which infringe upon constitutional rights.” [OPINION AND ORDER: 12 Civ. 331 (KBF) Hedges et al v. Obama, preliminary injunction enjoining enforcement of NDAA Section 1021, 5/16/2012]

President Obama’s Justice Department files a motion urging a federal judge to reconsider a ruling and order that blocked enforcement of a law authorizing indefinite military detention. The case is Hedges v. Obama and the law at issue is section 1021 of the 2012 National Defense Authorization Act (NDAA). The filing calls Judge Katherine B. Forrest’s preliminary injunction barring enforcement of Section 1021(b)(2) of the NDAA (see May 16, 2012) “extraordinary” as it restricts the president’s authority during wartime. It also questions whether “an order restraining future military operations could ever be appropriate,” and disputes Forrest’s finding that the plaintiffs who had sued to overturn the law (see January 13, 2012) have standing to sue. In footnote 1, the government states that it is construing the order “as applying only as to the named plaintiffs in this suit.” Forrest will clarify in a subsequent Memorandum Opinion and Order that by blocking enforcement of § 1021(b)(2), the only remaining persons covered are those defined in § 1021(b)(1): “A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks” (see June 6, 2012). [Hedges v. Obama: Government's Memorandum of Law in Support of Its Motion for Reconsideration of the May 16, 2012, Opinion and Order, 5/25/2012]
Background - The NDAA was passed by Congress on December 15, 2011 (see December 15, 2011) and signed into law by President Obama on December 31 (see December 31, 2011). The provision for indefinite military detention of any person accused of supporting groups hostile to the United States, without charge or trial, began to generate controversy soon after it was disclosed (see July 6, 2011 and after).

Entity Tags: Noam Chomsky, US Congress, White House, US Department of Justice, United States District Court, New York, Southern Division, US Department of Defense, Mitch McConnell, Nancy Pelosi, Katherine B. Forrest, Carl Mayer, Bruce Afran, Birgitta Jónsdóttir, Barack Obama, Alexa O’Brien, Chris Hedges, Leon Panetta, Kai Wargalla, Daniel Ellsberg, John McCain, John Boehner, Jennifer Bolen, Eric Cantor, Harry Reid

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Detainments Outside US, Detainments in US, Gov't Violations of Prisoner Rights

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

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

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Detainments Outside US, Detainments in US, Gov't Violations of Prisoner Rights

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