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The Evergreen Freedom Foundation, a conservative activist organization in Washington state, sends a three-page letter to Attorney General Alberto Gonzales urging the Justice Department to investigate US Attorney John McKay (see October 24, 2001) for misconduct. The foundation charges that McKay “has committed malfeasance by systematically refusing to act on evidence of election fraud delivered to his office.” The foundation, along with several Republican leaders in Washington state, say that McKay willfully ignored complaints of election fraud in the hotly contested 2004 governor’s race between Christine Gregoire (D-WA) and Dino Rossi (R-WA—see December 23, 2004 - January 12, 2005). McKay opened an investigation, but did not empanel a grand jury to investigate further (see January 4, 2005, Late 2004 or Early 2005 and Late 2004). McKay will later say that his office found no grounds for the voter fraud allegations: “We had lots of instances of incompetent handling of an election. What we didn’t find was a criminal act.” The director of that group’s voter integrity project, Jonathan Bechtle, later says that he believes his group’s complaint was forwarded to the Justice Department office that oversees US Attorneys, but will say, “I couldn’t get any information out of them as to the conclusion.” [Washington Post, 3/19/2007; Iglesias and Seay, 5/2008, pp. 133]

Entity Tags: Christine O. Gregoire, Jonathan Bechtle, Evergreen Freedom Foundation, John L. McKay, Dino Rossi, Alberto R. Gonzales

Timeline Tags: 2004 Elections

Category Tags: 2006 US Attorney Firings, Voter Fraud/Disenfranchisement

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

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

Timeline Tags: Torture of US Captives, Complete 911 Timeline

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

Scott Jennings.Scott Jennings. [Source: Brendan Smialowski / New York Times]Scott Jennings, an aide in Karl Rove’s White House Office of Political Affairs (OPA), sends two emails to Rove’s deputy, veteran Republican political operative Timothy Griffin (see October 26, 2004), about the White House’s desire to fire US Attorney David Iglesias of New Mexico (see October 18, 2001). The emails are part of a larger “chain” sent back and forth between Jennings, Griffin, and other officials. Jennings writes in the first email, sent on May 2: “[W]hat else I can do to move this process forward? Is it too early to formulate a list of extremely capable replacements? There are several I know personally and can recommend.” The email contains a synopsis of claims by Bernalillo County Sheriff Darren White and several New Mexico Republicans that Iglesias did not aggressively pursue “hundreds” of voter fraud charges using evidence White and the Republican activists provided (see September 7 - October 6, 2004). The email also states that Iglesias went against the wishes of New Mexico Republicans in creating his “bogus” voter fraud task force (see August 17, 2004, September 7 - October 6, 2004, and September 23 - October 2004), and placed a New Mexico Democrat on the task force who reportedly stated that voter fraud violations were entirely imaginary. The second email, from June 28, reads in part: “I would really like to move forward with getting rid of NM USATTY. I was with CODEL [the New Mexico congressional delegation] this morning, and they are really angry over his lack of action on voter fraud stuff. Iglesias has done nothing. We are getting killed out there.” Griffin responds to the second email, saying: “I hear you. It may not be that easy, though. The president has to want to get rid of him. I will ask counsel’s office to see if it is even in contemplation.” Griffin is referring to the White House Counsel’s Office, headed by Harriet Miers. Leslie Fahrenkopf, a lawyer in the White House Counsel’s Office, tells Griffin: “He is on my radar screen. I raised it with Harriet a few weeks ago (see May 12 - June 9, 2005) and she would like to wait until his term is up in October 2005. If you think it merits another conversation with her, let me know.” Rove will later testify that he knows nothing of Jennings’s communications with Griffin, and will say: “Obviously, Scott had strong feelings about this, having been involved out there. And, from the review of the documents, he was freelancing a little bit here, apparently.… But it’s clear Scott, from reading this, ‘please let me know what else I can do to move this process forward,’ he’s clearly trying to get Iglesias out.” As for Griffin’s response, Rove will say: “I see this as a brushback. I see Tim Griffin telling a subordinate, I understand, not that easy, this is the president, not you, who is in charge, and I will check on this. I see this as a brushback pass.” Griffin is Jennings’s immediate supervisor in OPA. In 2004, Jennings served as the executive director of the Bush-Cheney re-election campaign in New Mexico. Rove will say that Jennings has been in touch with New Mexico Republicans who are unhappy with Iglesias’s purported failure to pursue voter fraud charges (see August 17, 2004, September 7 - October 6, 2004, September 15-19, 2004, September 23 - October 2004, and May 6, 2005 and After). [US House of Representatives, Committee on the Judiciary, 6/15/2009 pdf file; US House of Representatives, Committee on the Judiciary, 7/7/2009 pdf file; US House of Representatives, Committee on the Judiciary, 7/30/2009 pdf file; US House of Representatives, Committee on the Judiciary, 8/11/2009] Miers will deny ever seeing the email until years later, when Congress begins investigating the US Attorney firings (see December 7, 2006). She will refuse to speculate on what Jennings might mean by saying, “We are getting killed out there.” Her questioners will ask if he might be referring to a large number of Democratic voter registrations, and Miers will say he could be talking about massive voter fraud issues, though she will add, “I should say, I’m not suggesting I know whether there was voter fraud or not.” [US House of Representatives, Committee on the Judiciary, 6/15/2009 pdf file]

Entity Tags: Karl C. Rove, J. Scott Jennings, Leslie Fahrenkauf Doland, David C. Iglesias, J. Timothy Griffin, Darren White, White House Office of Political Affairs, Harriet E. Miers

Category Tags: 2006 US Attorney Firings, Voter Fraud/Disenfranchisement

New Mexico’s US Attorney, David Iglesias (see October 18, 2001), meets with state Republican Party chairman Allen Weh after he learns that Weh and the party are unhappy with the results of his 2004 election fraud task force (see [September 7 - October 6, 2004). Iglesias is aware that he cannot ethically respond directly to such complaints, and he cannot provide information about ongoing investigations. However, he wants to reassure his fellow Republicans that he will prosecute “provable” voter fraud cases, but will not bring a case if it does not stand a good chance of winning a conviction. He first passed that message along to New Mexico Republicans through a friend in the party, but when the message produced little positive results, he arranged to meet Weh for coffee near Weh’s home. At the meeting, Iglesias attempts to explain to Weh that he can only prosecute voter fraud cases if he has sufficient evidence to do so. Weh is unmoved by Iglesias’s explanations. He asks if Iglesias is “in trouble” with the New Mexico Republican Party. He will later claim that Iglesias tries to blame the FBI for the lack of voter fraud prosecutions. And he tells Iglesias that he needs to do something concrete about voter fraud, and should have already done so. Shortly after the meeting, Weh complains about Iglesias to Scott Jennings, a White House official working for White House political chief Karl Rove. A 2008 investigation of the 2006 US Attorney purge (see September 29, 2008) will find that Weh has been pressuring Iglesias since at least August 2004 to pursue voter fraud allegations (see September 23 - October 2004). Weh will tell the investigators that he was not convinced by Iglesias’s explanation, that he felt Iglesias was unqualified to be US Attorney, and had deliberately ignored credible evidence of voter fraud in New Mexico. He will say that many New Mexico Republicans feel the same way. These feelings are why he chose to complain to Jennings about Iglesias. He conveys his perceptions to Jennings and recommends that the Bush administration fire Iglesias. He will also send an email to Jennings about Iglesias and voter fraud in August 2005 (see August 9, 2005). Other Republicans in New Mexico will complain to the White House about Iglesias as well, including the chief of staff to Senator Pete Domenici (R-NM), Steve Bell. [US Department of Justice, Office of the Inspector General, 9/29/2008; Talking Points Memo, 2011]

Entity Tags: Karl C. Rove, Allen Weh, David C. Iglesias, Federal Bureau of Investigation, J. Scott Jennings, Pietro V. (“Pete”) Domenici, Steve Bell, New Mexico Republican Party

Category Tags: 2006 US Attorney Firings, Voter Fraud/Disenfranchisement

Steven Bradbury, the head of the Justice Department’s Office of Legal Counsel, issues a classified memo to John Rizzo, the senior deputy counsel for the CIA. The memo will remain classified for nearly four years (see April 16, 2009). It addresses, in the words of the American Civil Liberties Union (ACLU), “whether CIA interrogation methods violate the cruel, inhuman, and degrading treatment standards under federal and international law.” Bradbury concludes that neither past nor present CIA interrogation methods violate such standards. [Office of Legal Counsel, 5/10/2005 pdf file; American Civil Liberties Union [PDF], 1/28/2009 pdf file]
CIA Techniques Not Torture, Bradbury Explains - Bradbury calls torture “abhorrent” and “universally repudiated,” and says the US will never condone it. Afterwards, he spends a great deal of effort explaining why the various techniques used by the CIA do not constitute torture. Bradbury goes into numerous details about varieties of “harsh interrogation techniques” that can be used on prisoners, often restating details from an August 2002 OLC memo (see August 1, 2002) and elaborating on those descriptions. One technique he details is forced nudity. “Detainees subject to sleep deprivation who are also subject to nudity as a separate interrogation technique will at times be nude and wearing a diaper,” he writes, and notes that the diaper is “for sanitary and health purposes of the detainee; it is not used for the purpose of humiliating the detainee and it is not considered to be an interrogation technique.… The detainee’s skin condition is monitored, and diapers are changed as needed so that the detainee does not remain in a soiled diaper.” He cites “walling,” a technique involving slamming a detainee into a “false wall,” and writes, “Depending on the extent of the detainee’s lack of cooperation, he may be walled one time during an interrogation session (one impact with the wall) or many times (perhaps 20 or 30 times) consecutively.” Other techniques Bradbury cites include waterboarding, “abdominal slaps,” and “water dousing.” For water dousing, Bradbury gives specific restrictions: “For example, in employing this technique:
bullet “For water temperarure of 41°F, total duration of exposure may not exceed 20 minutes without drying and rewarming.
bullet “For water temperarure of 50°F, total duration of exposure may not exceed 40 minutes without drying and rewarming.
bullet “For water tempetarure of 59°F, total duration of exposure may not exceed 60 minutes without drying and rewarming.
“The minimum permissible temperature of the water used in water dousing is 41°F, though you have informed us that in practice the water temperature is generally not below 50°F, since tap water rather than refrigerated water is generally used.” [Office of Legal Counsel, 5/10/2005 pdf file; CNN, 4/17/2009]
Waterboarding Used More Frequently than Authorized - Bradbury also notes that waterboarding is sometimes used more times than authorized or indicated. Referring to an as-yet-unreleased 2004 report by the CIA’s inspector general on torture and abuse of detainees, he writes: “The IG report noted that in some cases the waterboard was used with far greater frequency than initially indicated.… (‘[T]he waterboard technique… was different from the technique described in the DoJ [Department of Justice] opinion and used in the SERE training (see December 2001 and July 2002). The difference was the manner in which the detainee’s breathing was obstructed. At the SERE school and in the DoJ opinion, the subject’s airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the [CIA] interrogator… applied large volumes of water to a cloth that covered the detainee’s mouth and nose. One of the psychologists/interrogators acknowledged that the agency’s use of the technique is different from that used in SERE training because it is ‘for real—and is more poignant and convincing.’)… The inspector general further reported that ‘OMS [the CIA’s Office of Medical Services] contends that the expertise of the SERE waterboard experience is so different from the subsequent agency usage as to make it almost irrelevant. Consequently, according to OMS, there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe.‘… We have carefully considered the IG report and discussed it with OMS personnel. As noted, OMS input has resulted in a number of changes in the application of the waterboard, including limits on frequency and cumulative use of the technique. Moreover, OMS personnel are carefully instructed in monitoring this technique and are personally present whenever it is used.… Indeed, although physician assistants can be present when other enhanced techniques are applied, ‘use of the waterboard requires the presence of the physician.’” [Office of Legal Counsel, 5/10/2005 pdf file]

Entity Tags: US Department of Justice, Steven Bradbury, Central Intelligence Agency, Office of Legal Counsel (DOJ), American Civil Liberties Union

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

In an 8-0 ruling, the District of Columbia Court of Appeals dismisses a lawsuit by the Sierra Club and Judicial Watch asking that the court require information to be disclosed from Vice President Cheney’s energy task force from 2001 (the National Energy Policy Development Group—see May 16, 2001). The US Supreme Court sent the case back to the appeals court (see April 27, 2004 and June 24, 2004). The appeals court ignores reports from the Government Accountability Office finding that energy executives and lobbyists took part in the task force deliberations (see After January 20, 2001, Mid-February, 2001, March 21, 2001, March 22, 2001, April 12, 2001, and April 17, 2001), and accepts the government’s contentions that the executive branch should not be forced to disclose information about its workings to either the legislative or judicial branches. Because no evidence was submitted that showed the energy executives or lobbyists cast votes or exercised veto power over task force decisions, the court rules, the task force is not obligated to comply with federal laws mandating that such governmental working groups reveal details of their deliberations. The executives and lobbyists are essentially no different than staff aides, the court finds. Cheney’s energy task force was not an advisory committee, and therefore “the government owed the plaintiffs no duty, let alone a clear and indisputable or compelling one,” says the court’s opinion. The court applies the Supreme Court’s standard of law as recommended in the case, a standard far more favorable to the executive branch than any previously applied in the case. Several of the appellate judges will later say that they took the Court ruling to mean that the judiciary should not be involved in a legal struggle with the executive branch. The ruling allows Cheney to keep the task force documents secret, and says that the task force is not bound by the Federal Advisory Committees Act (FACA). [Associated Press, 5/10/2005; Savage, 2007, pp. 176]
'Double Blow' - David Bookbinder, a lawyer for the Sierra Club, says, “The decision is not going to be helpful in assuring open and accountable government.” [Sierra Club, 5/15/2005] He says the ruling is a double blow: “As a policy matter, we see the Bush administration has succeeded in its efforts to keep secret how industry crafted the administration’s energy policy. As a legal matter, it’s a defeat for efforts to have open government and for the public to know how their elected officials are conducting business.” Judicial Watch official Chris Farrell will later say the ruling leaves the open-government laws “a hollow shell.” [Savage, 2007, pp. 176] The New York Times calls the decision “regrettable,” and observes, “The Bush administration hardly needs encouragement to deny public access to vital government information.” [New York Times, 5/15/2005]
Rejected Judicial Precedent - In 2007, author and reporter Charlie Savage will write: “The decision relied entirely upon the assertion of two Cheney aides that the lobbyists had not cast any votes, a claim no judge ever verified by looking at the records. The court’s ruling also dismissed arguments that ‘influential participation’ by outsiders made them de facto members of the task force whether or not they cast votes, rejecting the standard the courts had applied to the 1994 Clinton health care task force.” [Savage, 2007, pp. 176]

Entity Tags: Sierra Club, New York Times, Government Accountability Office, Judicial Watch, Bush administration (43), David Bookbinder, Federal Advisory Committees Act, National Energy Policy Development Group, Richard (“Dick”) Cheney

Timeline Tags: US Environmental Record

Category Tags: Court Procedures and Verdicts, Expansion of Presidential Power

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

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

Timeline Tags: Torture of US Captives

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

Leslie Fahrenkopf, a lawyer in the White House counsel’s office, sends an email to White House counsel Harriet Miers about US Attorney David Iglesias of New Mexico (see October 26, 2004). Fahrenkopf has seen emails from Scott Jennings, an official in the White House Office of Political Affairs, to his boss Timothy Griffin asking that Iglesias be ousted (see May 2 - June 28, 2005). Fahrenkopf writes: “Harriet, per our conversation last week regarding the US Attorney for New Mexico, David Iglesias, I double-checked the dates of Iglesias’s confirmation and appointment. He was confirmed October 11, 2001, and appointed by the president October 16, 2001. You also asked me to remind you to check the chart grading US Attorneys on their performance. Thanks.” Fahrenkopf sends a follow-up email to Miers on June 9, 2005, saying: “Harriet, I just wanted to follow up on this item to see if you wanted to take any action. You will recall that this is the individual who is ruffling some feathers in New Mexico.” Less than an hour after Fahrenkopf sends this email, Miers replies, “I believe the decision is to let his four years run and then appoint someone else, if this is the right case.” Karl Rove, the White House deputy chief of staff and the senior political official in the Bush administration (see Late January 2005), will later testify that he “probably” spoke to Miers about Iglesias before the email exchange involving Miers, Fahrenkopf, Jennings, and Griffin. Miers will testify to having no recollection of the email exchange. She will be asked why, if Iglesias had been ranked so highly just months before (see November 14-18, 2005 and March 2, 2005), he was now being considered for firing. Miers will have no answer. [US House of Representatives, Committee on the Judiciary, 6/15/2009 pdf file; US House of Representatives, Committee on the Judiciary, 6/15/2009 pdf file; US House of Representatives, Committee on the Judiciary, 7/7/2009 pdf file; US House of Representatives, Committee on the Judiciary, 7/30/2009 pdf file; US House of Representatives, Committee on the Judiciary, 8/11/2009]

Entity Tags: White House Office of Political Affairs, J. Scott Jennings, Harriet E. Miers, David C. Iglesias, Karl C. Rove, Leslie Fahrenkauf Doland, J. Timothy Griffin

Category Tags: 2006 US Attorney Firings

The civil trial brought by Washington State Republicans to try to “settle” the disputed 2004 governor’s race between Dino Rossi (R-WA) and Christine Gregoire (D-WA) opens. Gregoire won the recount to defeat Rossi by a slender 129-vote margin (see December 23, 2004 - January 12, 2005), but Republicans, claiming an array of voter fraud and other inappropriate actions cost Rossi the vote (see December 29-30, 2004), filed a lawsuit to have the election results overturned (see January 7, 2005). The lawyer for the Republican plaintiffs, Dale Foreman, says in his opening statement that he has evidence of “ballot stuffing” in King County, the most populous county in Washington and a center of Gregoire’s Democratic voter strength. “This is not just a case of sloppy. This is a case of election fraud,” Foreman says. Up until today, Republican plaintiffs have insisted that they would not need to allege fraud in the race to win the lawsuit. “This election was stolen from the legal voters of the state by a bizarre combination of illegal voters and bumbling bureaucrats,” Foreman continues. “King County’s failure to track the absentee ballots was not only unlawful, but it opened the door for ballots to be subtracted or added.… The evidence will show partisan bias. And partisan bias is a very politically correct way of saying, ‘Somebody stuffed the ballot box.’ You know, if it walks like a duck and quacks like a duck, it’s probably a duck.” (US Attorney John McKay will later say that he is amazed to hear Foreman make such a claim, telling a reporter in 2007: “I was shocked to see him use the words ‘ballot-stuffing’ because that is a crime. If you say that, you are ethically bound to prove that.” McKay launched an aggressive investigation into voter fraud after the election that bore no fruit—see December 2004, Late 2004, Late 2004 or Early 2005, January 4, 2005, January 4, 2005, April 28, 2005, and May 2005). Foreman tells the jury that “sinister” fraud and corruption “up the food chain” robbed Rossi of the governor’s office. Judge John Bridges quickly puts an end to Foreman’s claims, reminding him and the jury that he and his clients have not included such charges in their case up until now, and Foreman cannot add them at this point in the proceedings. Bridges will allow Foreman and the plaintiffs to introduce evidence against King County, but will not allow them to label it as fraud in the courtroom. The Seattle Times reports, “That matters because a fraud claim would not require Republicans to show that King County’s actions specifically cost Rossi votes or gave… Gregoire her winning margin of 129 votes.” Now, Republicans must show that specific actions by election workers, illegal votes by convicted felons, and other actions directly affected the candidates’ vote totals. “The judge will wait… to see if they connect the dots and show election fraud,” says Thomas Ahearne, an attorney representing Secretary of State Sam Reed (R-WA). The plaintiffs have scheduled no one to testify about allegations of fraud, including ballot stuffing. The plaintiffs want Bridges to subtract votes they consider to be “illegal” from each candidate based, not on demonstrable fraud or illegality, but on the statistical pattern of the overall vote in each precinct. Democrats consider this idea “bogus,” press reports say. [Seattle Times, 5/24/2005; National Journal, 5/24/2005; Seattle Times, 3/13/2007]

Entity Tags: Sam Reed, County of King (Washington), Christine O. Gregoire, Dale Foreman, Dino Rossi, Seattle Times, Thomas Ahearne, John Bridges, John L. McKay

Timeline Tags: 2004 Elections

Category Tags: 2006 US Attorney Firings, Voter Fraud/Disenfranchisement

Human rights advocacy group Amnesty International reports that both the US and Britain are betraying the cause of human rights in their “war on terror.” Amnesty’s general secretary, Irene Khan, accuses both governments of condoning torture and twisting their interpretations of the law to justify and excuse torture. She says: “A new agenda is in the making, with the language of freedom and justice being used to pursue policies of fear and insecurity. This includes cynical attempts to redefine and sanitize torture.” The US’s most well-known detention facility, Guantanamo Bay, is “the gulag of our time,” she says. “The US administration attempted to dilute the absolute ban on torture through new policies and quasi-management speak such as ‘environmental manipulation,’ ‘stress positions,’ and ‘sensory manipulation,’” she says. And when these two countries justify torture, other countries follow suit. “When the most powerful country in the world thumbs its nose at the rule of law and human rights, it grants a license to others to commit abuse with impunity. From Israel to Uzbekistan, Egypt to Nepal, governments have openly defied human rights and international humanitarian law in the name of national security and ‘counter-terrorism.’” [Guardian, 5/26/2005]

Entity Tags: Irene Khan, Amnesty International

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 acting head of the Justice Department’s Office of Legal Counsel, issues a classified memo. The contents and the recipient remain secret, but the American Civil Liberties Union (ACLU) will later determine the memo deals with the use of “enhanced interrogation techniques” by the CIA. In early May, Bradbury determined that none of the CIA’s past or present interrogation methods violated either federal or international standards (see May 10, 2005). [American Civil Liberties Union [PDF], 1/28/2009 pdf file]

Entity Tags: Office of Legal Counsel (DOJ), American Civil Liberties Union, US Department of Justice, Steven Bradbury

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

The FBI and Justice Department quietly open an investigation into whether Representative Jane Harman (D-CA), the ranking Democrat on the House Intelligence Committee, improperly colluded with the American Israel Public Affairs Committee (AIPAC) to win reappointment as the committee’s ranking member. The investigation is not revealed to the public until October 2006 (see October 20, 2006). The investigation centers on allegations that Harman and AIPAC arranged for wealthy supporters to lobby House Minority Leader Nancy Pelosi (D-CA) on Harman’s behalf. The case is an outgrowth of a probe that has already led to the felony conviction of former DIA official Larry Franklin, who pled guilty to giving classified information to two AIPAC lobbyists (see October 5, 2005), and the lobbyists, Steve Rosen and Keith Weissman, who still face charges of passing that information on to Israel (see April 13, 1999-2004). The investigation has now expanded to determine if Harman’s campaign to persuade Pelosi to reappoint her to the committee may have involved AIPAC, and whether Harman promised to return the favor by using her influence to persuade the Justice Department to ease up on the AIPAC lobbyists. Reporter Timothy Burger will write: “If that happened, it might be construed as an illegal quid pro quo, depending on the context of the situation. But the sources caution that there has been no decision to charge anyone and that it is unclear whether Harman and AIPAC acted on the idea.” Both Harman and Pelosi are outspoken supporters of Israel, and have praised AIPAC for its efforts to further cement ties between Israel and the US. However, Congressional sources will say that Pelosi is furious at attempts by major donors to lobby on behalf of Harman. The LA Weekly reported in May that Harman “had some major contributors call Pelosi to impress upon her the importance of keeping Jane in place. According to these members, this tactic, too, hasn’t endeared Harman to Pelosi.” Another powerful figure has lobbied for Harman: entertainment industry billionaire Haim Saban, who made his fortune through the Mighty Morphin Power Rangers children’s entertainment franchise. It is unclear whether Saban had any contact with AIPAC, and if his efforts to lobby on Harman’s behalf were part of a larger, more orchestrated plan. [Time, 10/20/2006] When the story becomes public in October 2006, Harman will deny any improper or illegal conduct (see October 20, 2006). The investigation will eventually be dropped, supposedly for “lack of evidence.” In April 2009, evidence will surface that the NSA wiretapped Harman discussing a quid pro quo with a suspected Israeli agent, and that the investigation was not dropped because of lack of evidence, but because of the intervention of Attorney General Alberto Gonzales (see October 2005, Late 2005, and April 19, 2009). [Congressional Quarterly, 4/19/2009]

Entity Tags: Nancy Pelosi, Haim Saban, Federal Bureau of Investigation, American Israel Public Affairs Committee, Alberto R. Gonzales, House Intelligence Committee, Jane Harman, Steve Rosen, Timothy Burger, US Department of Justice, Keith Weissman, National Security Agency, Larry Franklin

Category Tags: Government Acting in Secret, NSA Wiretapping / Stellar Wind

Defense Secretary Donald Rumsfeld gathers a group of senior subordinates and warns them to stay away from three senators—John McCain (R-AZ), John Warner (R-VA), and Lindsey Graham (R-SC)—who are drafting a bill to govern the handling of terrorism suspects (see December 30, 2005). A Pentagon official with direct knowledge of the meeting will later recall, “Rumsfeld made clear, emphatically, that the vice president had the lead on this issue.” Though Vice President Dick Cheney has, as he so often has done in the past, ensured that his bureaucratic fingerprints are not on the issue, he has already staked out a hardline position for the White House. This time, it came as a last-minute insert in a July 2005 “statement of administration policy” by the Office of Management and Budget (OMB), where Nancy Dorn, Cheney’s former chief of legislative affairs, is deputy director. Cheney’s staff adds, without the required staff clearance, a paragraph to the OMB’s guidance for the 2006 defense appropriations bill (see July 21, 2005). Among those surprised by the position is Deputy Defense Secretary Gordon England, who for a year has advocated that the US issue clear rules about detention and interrogation of terror suspects. England attempts to clarify the issue (see Late 2005). [Washington Post, 6/25/2007]

Entity Tags: John McCain, Bush administration (43), Donald Rumsfeld, Gordon England, Office of Management and Budget, Richard (“Dick”) Cheney, John W. Warner, Nancy Dorn, Lindsey Graham, US Department of Defense

Category Tags: Other Legal Changes, Detainee Treatment Act, Detainments Outside US, Detainments in US, Gov't Violations of Prisoner Rights, Government Acting in Secret

The complaints against US Attorney Todd Graves of Missouri from Jack Bartling, the legal counsel for Senator Christopher Bond (R-MO—see Spring 2005), make their way to the Justice Department. Bartling, who later cooperates with the Justice Department investigators looking into the 2006 US Attorney purge (see September 29, 2008), says he understood from his conversations with officials in the White House Counsel’s Office that the matter is now in the hands of the Justice Department. Moreover, Bartling goes to Washington to interview for a position in the Office of the Deputy Attorney General in the fall of 2005, and during the interview process speaks to Michael Elston, the chief of staff to Deputy Attorney General Paul McNulty. Elston asks Bartling if Bond is still interested in removing Graves from his position. Elston will also speak to the investigators, and will tell them that he learned that Graves had lost Bond’s support from Bond’s staff, and not from someone in the Justice Department. Elston will also say that he did not discuss with Bartling the reasons why Graves should be fired, but he knows enough about the discord between the Bond staff and the staff of US Representative Sam Graves (R-MO), Todd Graves’s brother, to make some assumptions about the reason for the request. Elston will say he does not bring the matter to the attention of McNulty or anyone else in the department. [US Department of Justice, Office of the Inspector General, 9/29/2008]

Entity Tags: Paul J. McNulty, Christopher (“Kit”) Bond, Michael Elston, Todd P. Graves, US Department of Justice, Sam Graves, Jack Bartling, White House Counsel’s Office

Category Tags: 2006 US Attorney Firings

Lawyers for the Washington Democratic Party celebrate after the court ruling certifying Christine Gregoire as governor.Lawyers for the Washington Democratic Party celebrate after the court ruling certifying Christine Gregoire as governor. [Source: Seattle Post-Intelligencer]State Attorney General Christine Gregoire (D-WA) is certified the winner of the Washington State governor’s race against challenger Dino Rossi (R-WA). Rossi was initially declared the winner (see November 2-30, 2004), but the race was so close that Gregoire asked for a recount, as was her right under the law (see December 23, 2004 - January 12, 2005). Republicans challenged the recount in court, citing 1,678 votes as “illegal” (see January 7, 2005 and January 24-28, 2005). Superior Court Judge John Bridges rules against the Republican plaintiffs. He finds that although some voting irregularities did occur in the largely Democratic King County, they were not the result of deliberate voter fraud or manipulation. “No evidence has been placed before the court to suggest fraud or intentional misconduct,” he says. “Elections officials attempted to perform their responsibilities in a fair and impartial manner.” In only five instances—five votes—was evidence presented that showed the intent of the voter in the 1,678 “illegal” votes cast. For the other 1,673, officials were unable to determine which candidate the voters in question selected on Election Day. None of those five votes were for Gregoire: Democrats presented evidence that four convicted felons had illegally voted for Rossi and a fifth for a third-party candidate. Bridges deducts those five votes from the final tally, giving Gregoire the final and official 133-vote margin of victory. Bridges refused Republicans’ demands to subtract what they called “invalid votes” from the statistical totals of vote tallies, and to statistically refigure the votes. Such an action would constitute the worst kind of judicial activism, Bridges says. As a result, “The court concludes that the election contest petition should be dismissed and the certification of Miss Gregoire as governor confirmed.” State Democratic Chairman Paul Berendt says: “It’s a huge victory. But the centerpiece was that the Republicans never had a case. They need to drop their case so the state can get on with its important business. They have shown that they will spend anything, they will say anything, and they will do anything to tear down Christine, and it’s time for that to stop.” Later in the day, Rossi says he will not appeal the ruling to the Washington Supreme Court: “With today’s decision, and because of the political makeup of the Washington State Supreme Court, which makes it almost impossible to overturn this ruling, I am ending the election contest,” he says. Bridges says that if the election process is flawed, it is up to the state legislature to fix it, not the courts. [Seattle Post-Intelligencer, 6/5/2005; Borders et al. v. King County et al., 6/6/2005; Washington Post, 6/7/2005; HistoryLink (.org), 6/7/2005]

Entity Tags: King County (Washington), Christine O. Gregoire, Dino Rossi, John Bridges, Washington Supreme Court, Paul Berendt

Timeline Tags: 2004 Elections

Category Tags: Court Procedures and Verdicts, Election, Voting Laws and Issues, Voter Fraud/Disenfranchisement

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

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

Category Tags: Impositions on Rights and Freedoms, Privacy, NSA Wiretapping / Stellar Wind

On the heels of a speech by President Bush that stated the US government was obtaining court authorizations for each of its domestic surveillance activities (see June 9, 2005), the White House releases a “fact sheet” making the government’s case for its compliance with the law and the efficacy of its actions in “safeguarding our homeland.” The sheet claims: “The judicial branch has a strong oversight role in the application of the Patriot Act. Law enforcement officers must seek a federal judge’s permission to wiretap a foreign terrorist’s phone, track his calls, or search his property. These strict standards are fully consistent with the Constitution. Congress also oversees the application of the Patriot Act, and in more than three years there has not been a single verified abuse.” [White House, 6/9/2005] Bush made almost identical claims a year before (see April 19-20, 2004). Former AT&T senior technician Mark Klein (see July 7, 2009 and May 2004), who helped install the equipment used by the National Security Agency (NSA) and his firm to intercept foreign and domestic Internet communications (see January 16, 2004), will later say that Bush’s insistence that the administration gets court orders before wiretapping communications is false. AT&T, on behalf of the NSA, was monitoring “billions of messages a second,” Klein will write, all without court orders. [Klein, 2009, pp. 47-48]

Entity Tags: George W. Bush, AT&T, Bush administration (43), National Security Agency, Mark Klein

Category Tags: Impositions on Rights and Freedoms, Privacy, NSA Wiretapping / Stellar Wind

White House counsel Harriet Miers sends an email that says the White House has decided not to renominate US Attorney David Iglesias of New Mexico (see October 18, 2001) to his current position. The reason for the decision is complaints by New Mexico Republicans that Iglesias has not adequately addressed the issue of Democratic voter fraud in their state (see 2002, August 17, 2004, September 7 - October 6, 2004, September 15-19, 2004, September 23 - October 2004, and May 6, 2005 and After). Miers writes that the “decision” to replace Iglesias with someone more palatable to New Mexico Republicans has been made. At this time, the House Judiciary Committee will note in 2009, the Justice Department has given Iglesias “top rankings” (see 2002 and November 14-18, 2005 ), “so this decision was clearly not just the result of the White House following the department’s lead,” as Miers and White House political chief Karl Rove will later maintain. [US House of Representatives, Committee on the Judiciary, 8/11/2009; Politico, 8/12/2009]

Entity Tags: Harriet E. Miers, David C. Iglesias, Karl C. Rove, House Judiciary Committee

Category Tags: 2006 US Attorney Firings

A Justice Department review of the FBI’s Terrorist Screening Center discovers that the terrorist watch list used to screen people entering the US is based on incomplete and inaccurate information. The report also criticizes the poor technical performance of the facility. In the report, Inspector General Glenn Fine writes, “While the [Terrorist Screening Database] is constantly evolving, we found that the management of its information technology, a critical part of the terrorist screening process, has been deficient.” The Justice Department also warns that missing or duplicate information hinders the usefulness of the lists. Fine states that: “We found instances where the consolidated database did not contain names that should have been included on the watch list. In addition, we found inaccurate information related to persons included in the database.” [The Register, 6/14/2005] The problems will not be corrected by 2006 (see March 2006).

Entity Tags: Glenn Fine, Federal Bureau of Investigation, Terrorist Screening Center, US Department of Justice

Timeline Tags: Complete 911 Timeline

Category Tags: Airport and Immigration Security, Gov't Violations of Prisoner Rights

Iowa Governor Tom Vilsack (D-IA) announces that he will sign an order on July 4 that restores voting rights for all Iowa felons who have completed their prison sentences. Since 1846, Iowa has had what voting rights advocates call one of the most restrictive disenfranchisement laws in the nation (see 1802-1857). Felons should “re-engage” with society, Vilsack says, and restoring their right to vote will help in that process. Some 80,000 Iowans will be affected by the order. Voting rights advocates say that since Iowa and Nebraska (see March 2005) have moved to reinstate voting rights by convicted felons, other states should make similar efforts. Some 4.7 million Americans are ineligible to vote because of criminal convictions, including a half-million war veterans. 1.4 million of these ineligible voters are African-American males. Iowa was one of five states, including Alabama, Florida, Kentucky, and Virginia, that deny the vote to any citizen convicted of a felony or an aggravated misdemeanor. Previously, Iowa required convicted felons who wanted their right to vote reinstated to petition the governor’s office, which would then forward the application to the State Division of Criminal Investigation, which would in turn send the application to the parole board for a recommendation. The process could take up to six months to complete. About 600 ex-felons petitioned for restoration in 2004. After he signs the order, Vilsack says, about 600 felons will be restored to the voting rolls each month. The Iowa Department of Corrections must submit monthly lists of eligible ex-felons to Vilsack’s office. While blacks make up only 2 percent of Iowa’s population, 19 percent of those denied the vote are black, prompting many to say that the law is discriminatory. Catherine Weiss of the Brennan Center for Justice says, “This is a huge victory for voting rights and for civil rights.” Iowa was under tremendous pressure to overturn its ban after Nebraska ended its ban. Weiss says that Nebraska and Iowa were the only two states outside the former Confederate South to maintain such restrictive bans. Ryan King of the Sentencing Project, an organization working to reinstate the right to vote for felons across the nation, says: “The governor’s choice of doing this on July 4 is very symbolic. It’s a celebration of democracy.” Debra Breuklander, a former felon who joins Vilsack at the press conference, says the order goes beyond politics. Breuklander was convicted of conspiracy to distribute methamphetamine and was released from prison in June 2003. She now works as a nurse at a drug treatment center. “I have children that are still in school; I have a grandson that will be going to school,” she says. “Not even to be able to have a say-so in what goes on in the schools was driving me crazy.… If nobody hires you and you don’t feel like you’re a part of anything, all you will do is feel like you may as well go back to what you know, which is the drugs.” [New York Times, 6/18/2005; American Civil Liberties Union, 2008; ProCon, 10/19/2010]

Entity Tags: Ryan King, Catherine Weiss, Tom Vilsack, Debra Breuklander

Category Tags: Voting Rights, Election, Voting Laws and Issues

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

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

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

John Tanner, the head of the civil rights division’s Voting Rights Section (VRS) in the Justice Department, writes a four-page letter to Nick A. Soulas, a civil prosecutor in Franklin County, Ohio. The letter is a notification that Tanner is ordering the closure of a VRS investigation into the unbalanced distribution of voting machines in Franklin County, which contains the large urban area of Columbus. Complaints had been filed alleging that districts with a predominance of white voters received a disparately larger number of voting machines than districts with a predominance of African-American voters. Although that disparity has been proven, Tanner writes that the disparity does not violate the Voting Rights Act (see August 6, 1965). The letter essentially defends the disparity, arguing that the use of such disparate numbers of machines is acceptable. It also praises the Franklin County Board of Elections for buying approximately 2,100 new voting machines. Sources, including a VRS staffer who left the section in late 2004, will later tell the citizen journalism project ePluribus Media (ePM) that many inside and outside the VRS found the letter “repugnant.” Moreover, they will tell the ePM researchers that the DOJ almost never writes such a letter: when it finishes an investigation it deems unworthy of pursuing, it merely sends a letter informing the involved parties that it is closing the investigation. For Tanner to write and send such a letter is highly unusual. And, Tanner’s is the only signature on the letter. No staff attorneys sign off on the letter. Sources will tell ePM that the lone signature apparently indicates that Tanner was the only person working the investigation. Section chiefs such as Tanner almost never handle investigations. ePM will say that the letter presents what it calls “convoluted excuses for why black voters didn’t have enough machines and white voters did.” [US Department of Justice, Civil Rights Division, 6/29/2005 pdf file; ePluribus Media, 5/7/2007]

Entity Tags: Nick A. Soulas, Civil Rights Division (DOJ), County of Franklin (Ohio), Franklin County Board of Elections (Ohio), John Tanner, Voting Rights Section (DOJ), ePluribus Media, Voting Rights Act of 1965

Category Tags: Election, Voting Laws and Issues, Voter Fraud/Disenfranchisement, Voting Rights

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

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

Category Tags: Government Acting in Secret, National Security Letters, Media Involvement and Responses

Washington State businessman Tom McCabe sends a letter to Representative Doc Hastings (R-WA) demanding that he “ask the White House to replace Mr. McKay” for not adequately pursuing the voter fraud allegations in the 2004 gubernatorial race. McCabe is following up on his earlier insistence that US Attorney John McKay of Western Washington State be fired for not pursuing McCabe’s allegations of voter fraud in the race between Christine Gregoire (D-WA) and Dino Rossi (R-WA) to serve as Washington’s governor (see Late 2004 and Late 2004 or Early 2005) after he provided useless “evidence” of voter fraud in the race (see December 2004 and January 4, 2005). (A judge threw out all of the Republican “evidence” of what they called “voter fraud” in his rejection of the claim—see June 6, 2005). McCabe repeatedly and erroneously claims McKay is a Democrat, and accuses him of deliberately failing to pursue the allegations because of his supposed political stance. McCabe sends copies of the letter to John Fund, a conservative editorialist for the Wall Street Journal; former US Attorney and current federal judge Greg van Tatenhove; and Bob Williams of the conservative Evergreen Freedom Foundation (see May 2005). Hastings will later confirm receiving the memo, and will say that he responded, “I flat out refused to do so, which [Hastings’ chief of staff] Ed Cassidy told him in the bluntest of terms.” Cassidy later says that Hastings’ staff did not reply to the letter. Hastings later says he would not have called the White House to complain about McKay because US Attorneys are executive branch matters. No White House official will recall speaking to Hastings about McKay. [Tom McCabe, 7/5/2005 pdf file; TPM Muckraker, 3/7/2007; Seattle Times, 3/7/2007; US Department of Justice, Office of the Inspector General, 9/29/2008; Talking Points Memo, 2011] Cassidy raised the issue with McKay months before and was rebuffed (see January 4, 2005). A 2008 Justice Department investigation (see September 29, 2008) will not name McCabe or his organization, the Building Industry Association of Washington (BIAW), as the author of the letter. [Tom McCabe, 7/5/2005 pdf file; US Department of Justice, Office of the Inspector General, 9/29/2008]

Entity Tags: Building Industry Association of Washington, Ed Cassidy, Bush administration (43), Bob Williams, Christine O. Gregoire, Evergreen Freedom Foundation, Tom McCabe, Greg van Tatenhove, Dino Rossi, John Fund, Richard (“Doc”) Hastings, John L. McKay

Category Tags: 2006 US Attorney Firings

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

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

Category Tags: Court Procedures and Verdicts, Patriot Act, Freedom of Speech / Religion, Privacy, Impositions on Rights and Freedoms, Government Acting in Secret, Government Classification, National Security Letters

The Office of Management and Budget (OMB) releases a “Statement of Administrative Policy” regarding the 2006 National Defense Authorization Act, the massive appropriations bill for the year. The document is given little attention in the media, but it wields great influence inside the government. Unknown to most OMB staffers, Vice President Dick Cheney’s lawyer David Addington has gone through OMB deputy director Nancy Dorn—herself a former Cheney staffer—to add a key paragraph to the document at the very last minute, without staff review. The paragraph says, in part, “The administration strongly opposes” any amendment to “regulate the detention, treatment, or trial of terrorists captured in the war on terror.” Addington’s paragraph is a pre-emptive strike at any such legislative attempt to modify or ease the polices towards detainees, especially in a following statement that reads, “[T]he president’s senior advisers would recommend that he veto” any such bill. The insertion is part of Cheney’s attempt to head off any possible legislation restricting the administration’s claimed power to hold anyone it chooses in indefinite detention (see Summer 2005). [Office of Management and Budget, 7/21/2005 pdf file; Washington Post, 6/25/2007]

Entity Tags: Nancy Dorn, Office of Management and Budget, Richard (“Dick”) Cheney, David S. Addington

Category Tags: Expansion of Presidential Power, Gov't Violations of Prisoner Rights

Bud Cummins, US Attorney for the Eastern District of Arkansas (see January 9, 2002), does well in his second Evaluation and Review Staff (EARS) evaluation by the Justice Department. As with his first EARS evaluation (see April or August 2002), he is described as highly regarded by the judiciary in his district as well as by law enforcement, civil client agencies, and his office personnel. The current EARS evaluation reports that Cummins and his senior management team “effectively managed the office’s operations and personnel.” Under Cummins, the report says, his office has “established strategic goals that were appropriate to meet the priorities of the department and the needs of the district.” Cummins is involved in the day-to-day management of his office, and is active in Justice Department matters, serving on various Attorney General Advisory Committee subcommittees. Cummins also receives high marks for his office’s anti-terrorism, anti-drug, and reduction of gun violence programs. The office focuses strongly on public corruption cases involving state legislators. Cummins is doing a good job of incorporating a number of new and inexperienced assistants into his staff of “very experienced” assistants, though the report recommends that he consider selecting either “a deputy criminal chief, or the creation of units with lead attorneys to assist the criminal chief in the management of the workload and personnel.” The report also finds some incorrect data entries in the Legal Information Office Network System (LIONS). [US House of Representatives, Committee of the Judiciary, 4/13/2007 pdf file; US Department of Justice, Office of the Inspector General, 9/29/2008] Cummins will be fired shortly after this evaluation is performed (see December 20, 2006). He has already been identified as a target for removal by Justice Department aide Kyle Sampson (see January 9, 2005). All of the US Attorneys on Sampson’s list of targets are described as “weak US Attorneys who have been ineffectual managers and prosecutors, chafed against administration initiatives, etc.”

Entity Tags: US Department of Justice, D. Kyle Sampson, H.E. (“Bud”) Cummins III

Category Tags: 2006 US Attorney Firings

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

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

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

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

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

Category Tags: Court Procedures and Verdicts, Freedom of Speech / Religion, Privacy, Impositions on Rights and Freedoms, Government Acting in Secret, Government Classification, National Security Letters, Other Surveillance

US Attorney John McKay of Washington State is appointed to chair the Regional Information Sharing Working Group, a subcommittee of the Attorney General’s Advisory Committee (AGAC). He begins giving presentations about the Northwest Law Enforcement Information Exchange (LInX—see Early 2004 and Early 2005 - Spring 2005) and its benefits as an information-sharing program. McKay is a passionate advocate for the program and its potential to be used on a nationwide basis to share information between local, state, and federal authorities. According to Principal Associate Deputy Attorney General William Mercer, by early 2006 Deputy Attorney General Paul McNulty and his office are becoming concerned that McKay is pushing LInX as the Justice Department’s only information-sharing initiative, when in fact it is one of several information-sharing programs used by US Attorneys. By the first of the year, McNulty’s office is receiving complaints from Justice Department law enforcement entities about McKay traveling around the country endorsing another program over the ones used in other US Attorneys’ offices. Later investigation will show that no one shares any of these complaints with McKay. McKay will say that no one in the Justice Department ever told him that they disagreed with his advocacy of LInX, or wanted to use other programs. He will recall getting the impression in an April 2006 meeting with McNulty and several Pentagon officials that McNulty is interested in garnering the assistance of the Defense Department and the Department of Homeland Security to broaden LInX’s usage throughout the nation. McNulty will say that McKay’s impressions were incorrect, that other law enforcement agencies are using other information-sharing platforms, and that other entities, such as the Navy, have different agendas for information sharing with the Defense Department. McNulty will say he is attempting to juggle conflicting concerns, such as to what extent the Justice Department should open its records to other entities. Technology experts in the department are advising McNulty to remain “neutral” about which system(s) the department uses. [US Department of Justice, Office of the Inspector General, 9/29/2008]

Entity Tags: Law Enforcement Information Exchange, John L. McKay, US Department of Justice, William W. Mercer, Paul J. McNulty

Category Tags: 2006 US Attorney Firings

Lawyers refile a civil suit against Secretary of Defense Donald Rumsfeld on behalf of “enemy combatant” Ali Saleh Kahlah al-Marri, who has been in US custody since late 2001 (see December 12, 2001) and was designated as an enemy combatant a year and a half later (see June 23, 2003). Al-Marri is asking the federal district court in South Carolina to declare unconstitutional what he, through his lawyers, calls the severe and unnecessary deprivations and restrictions to which he has been subjected since he was placed in military custody. Al-Marri had already filed a suit challenging the legality of his detention on habeas corpus grounds, a lawsuit that was ultimately dismissed (see October 4, 2004). Human Rights Watch director Jamie Fellner says: “It is bad enough that al-Marri has been held indefinitely without charges and incommunicado. Now we learn that his life in the brig has also been one of cruelty and petty vindictiveness.” [Human Rights Watch, 8/8/2005]
Allegations of Cruel Treatment - Al-Marri is currently the only known person designated as an enemy combatant still in legal limbo. He has been in solitary confinement since his December 2001 arrest, and in Guantanamo since mid-2003. Al-Marri was sent to the Charleston, South Carolina Naval brig once he was designated as an enemy combatant, isolated in a lightless cell hardly larger than a closet, and since then, his lawyers say, he has been subjected to deprivations of the most basic kinds, including shoes, socks, blankets, toilet paper, toothpaste, and sunlight. Sometimes he is denied water. During the day his mattress is removed. His captors often turn the temperature down in his cell to near-freezing conditions, but do not give him extra clothes or blankets. He is provided three short “recreation” sessions a week—in handcuffs and leg irons—but those are often denied him. He is allowed three showers a week, again in handcuffs and leg irons. He has been denied access to medical care. A devout Muslim, he is not given the basic necessities for religious observances—his captors even refuse to tell him which way to face towards Mecca, an essential element of daily devotions. Letters from his wife and children are heavily censored. Privileged notes he has written to his lawyer have been confiscated and not returned. He is subjected to constant video surveillance. He was repeatedly interrogated, his lawyers say, but has not been interrogated for a year. His captors have repeatedly threatened his family, telling him that he would be sent to Egypt or Saudi Arabia, where he would be tortured and sodomized and his wife raped in front of him. According to the lawsuit, his captors falsely told him that, because of him, his father and four of his brothers were in jail, and that if he cooperated, they would be released.
Commentary - “Mr. al-Marri has been detained at a naval brig for two-and-a-half years in cell that is 9 feet by 6 feet,” says law professor Jonathan Hafetz, who will become one of al-Marri’s lawyers. “During that time he has long been denied books, news, any contact with the outside world other than his attorneys, including his wife and five children, who he has neither seen nor spoken to. I mean things that we don’t even do to people who’ve been convicted of crimes.” Fellner says: “It’s the combination of restrictions imposed on al-Marri that offends basic norms of decency. There is no security justification for them. The Pentagon apparently believes it can hold him under any conditions they choose for as long as they choose.” [Human Rights Watch, 8/8/2005; Associated Press, 8/9/2005; Al-Marri v. Rumsfeld, 8/9/2005 pdf file; CNN, 12/13/2005]
Military Denies Mistreatment - The military denies that al-Marri has been mistreated. [CNN, 12/13/2005] Defense spokesman Navy Lieutenant Commander J. D. Gordon says in 2007, “The government in the strongest terms denies allegations of torture, allegations made without support and without citing a shred of record evidence. It is our policy to treat all detainees humanely.” [Progressive, 3/2007]

Entity Tags: Jamie Fellner, Bush administration (43), Ali Saleh Kahlah al-Marri, Donald Rumsfeld, J.D. Gordon, US Department of Defense, Mohammed al-Marri, Human Rights Watch, Jonathan Hafetz

Timeline Tags: Torture of US Captives

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

Congress passes a law that forbids the Department of Energy, the Nuclear Regulatory Commission, and their contractors from firing or otherwise punishing any employee who informs Congress about possible wrongdoing. President Bush issues a signing statement that says only he or his appointees will decide whether employees of either agency can give information to Congress. [Boston Globe, 4/30/2006]

Entity Tags: George W. Bush, Nuclear Regulatory Commission, US Department of Energy

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

New Mexico Republican Party chairman Allen Weh, convinced that US Attorney David Iglesias is an incompetent who is deliberately refusing to prosecute voter fraud cases (see May 6, 2005 and After and May 12 - June 9, 2005), sends an email to Scott Jennings, an official in the White House Office of Political Affairs (OPA). He copies the email to Jennings’s supervisors Karl Rove and Sara Taylor (see Late January 2005), Republican National Committee official Timothy Griffin, and Steve Bell, the chief of staff to Senator Pete Domenici (R-NM). Weh writes in part: “We discussed the need to replace the US Atty in NM several months ago. The brief on voter fraud at the RNC [Republican National Committee] meeting last week reminded me of how important this post is to this issue, and prompted this follow up. As you are aware the incumbent, David Iglesias, has failed miserably in his duty to prosecute voter fraud. To be perfectly candid, he was ‘missing in action’ during the last election, just as he was in the 2002 election cycle. I am advised his term expires, or is renewed, in October. It is respectfully requested that strong consideration be given to replacing him at this point.… If we can get a new US Atty that takes voter fraud seriously, combined with these other initiatives we’ll make some real progress in cleaning up a state notorious for crooked elections.” Griffin responds in an email to Rove and Taylor: “I have discussed this issue with counsel’s office [the White House counsel’s office, headed by Harriet Miers]. I will raise with them again. Last time I spoke with them they were aware of the issue, and they seemed to be considering a change on their own. I will mention again unless I am instructed otherwise.” Twenty minutes later, Rove responds by telling Griffin, “Talk to the counsel’s office.” Griffin replies, “Done,” and adds a bit about setting up a meeting with someone unrelated to the Iglesias-Weh discussion. Rove responds, “Great.” He will later testify that he may have been responding to Griffin about the unrelated meeting. [US Department of Justice, Office of the Inspector General, 9/29/2008; US House of Representatives, Committee on the Judiciary, 6/15/2009 pdf file; US House of Representatives, Committee on the Judiciary, 7/7/2009 pdf file; US House of Representatives, Committee on the Judiciary, 7/30/2009 pdf file] One of Weh’s Republican colleagues, lawyer Patrick Rogers, recommended that state and national Republicans use voter fraud as a “wedge issue” before the November 2004 elections, and has himself complained about Iglesias’s record on voter fraud investigations (see September 23 - October 2004).

Entity Tags: Karl C. Rove, David C. Iglesias, Allen Weh, Harriet E. Miers, J. Timothy Griffin, Sara Taylor, Pietro V. (“Pete”) Domenici, White House Office of Political Affairs, J. Scott Jennings, Republican National Committee, New Mexico Republican Party, Steve Bell

Category Tags: 2006 US Attorney Firings, Voter Fraud/Disenfranchisement

FBI Director Robert Mueller tells an audience at an InfraGard convention, “Those of you in the private sector are the first line of defense.” InfraGard is an organization made up of private business executives and employees who work with the FBI in counterterrorism, surveillance, and other areas (see 1996-2008). Mueller urges InfraGard members to contact the FBI if they “note suspicious activity or an unusual event.” And he urges members to inform the FBI about “disgruntled employees who will use knowledge gained on the job against their employers.” After the convention, Muller says of InfraGard, “It’s a great program.” [Progressive, 2/7/2008]

Entity Tags: Federal Bureau of Investigation, Robert S. Mueller III, InfraGard

Category Tags: Privacy, Impositions on Rights and Freedoms, Continuity of Government, Other Surveillance

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

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

Category Tags: Gov't Violations of Prisoner Rights, Government Acting in Secret, NSA Wiretapping / Stellar Wind, Other Surveillance

The FBI begins to build cases against high value detainees held by the US in Guantanamo Bay, due to Defense Department fears that evidence obtained from the detainees by the CIA will be inadmissible or too controversial to present at their upcoming war crimes tribunals. The investigation, which involves up to 300 agents in a “Guantanamo task force,” runs for at least two years and FBI agents travel widely to collect evidence. According to former officials and legal experts, “The [FBI] process is an embarrassment for the Bush administration, which for years held the men incommunicado overseas and allowed the CIA to use coercive means to extract information from them that would not be admissible in a US court of law—and might not be allowed in their military commissions….” In fact, the techniques used to extract the confessions even cause some CIA officials to question whether they are believable, much less sustainable in court, particularly as CIA officers are not trained to obtain evidence that can be used in such a setting. In addition, if the information is used, this may focus the trials on the actions of the CIA and not the accused. The detainees will be designated enemy combatants in 2007 in preparation for military commissions (see March 9-April 28, 2007 and August 9, 2007), but this process will be questioned by a judge (see June 4, 2007). The Los Angeles Times will also comment, “The FBI’s efforts appear in part to be a hedge in case the commissions are ruled unconstitutional or never occur, or the US military detention center at Guantanamo Bay is closed. Under those scenarios, authorities would have to free the detainees, transfer them to military custody elsewhere, send them to another country, or have enough evidence gathered by law enforcement officials to charge them with terrorism in US federal courts.” [Los Angeles Times, 10/21/2007]

Entity Tags: Central Intelligence Agency, Federal Bureau of Investigation, US Department of Defense

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

Kyle Sampson, the deputy chief of staff for Attorney General Alberto Gonzales (see February 15, 2005), asks Acting Principal Deputy Associate Attorney General William Mercer for his opinion on the performance of a number of US Attorneys. (Mercer is also a US Attorney.) Mercer will later state that Sampson does not say that there is a plan to fire some of the Attorneys (see November 2004, November 4, 2004, Late December 2004, January 6, 2005, January 9, 2005, March 2, 2005, and March 23, 2005), but Mercer understands that such is Sampson’s purpose in asking his opinion. Sampson says that changes might be made in certain districts with productivity problems or policy compliance issues. Mercer will later recall discussing issues with US Attorney Carol Lam’s immigration records (see February 2, 2004, July 30, 2004, and September 23, 2005), and will recall discussions about US Attorney Kevin Ryan as well. Mercer will say he and Sampson may discuss other Attorneys as well, but will state he cannot recall who those Attorneys might be. Mercer gets the sense that Sampson is speaking with other people about the issue, but does not know who those people might be. Mercer will say that he and Sampson do not discuss the issue again until December 2006, when the firing plan is activated (see December 7, 2006). [US Department of Justice, Office of the Inspector General, 9/29/2008]

Entity Tags: Carol C. Lam, D. Kyle Sampson, Kevin J. Ryan, William W. Mercer

Category Tags: 2006 US Attorney Firings

Supreme Court Chief Justice William Rehnquist (see September 26, 1986), 80, dies after a ten-month battle with thyroid cancer. He will be replaced by John Roberts (see September 29, 2005), who formerly clerked for him. Rehnquist’s term as Chief Justice marked a “sea change” in the direction of the Court. Former Clinton solicitor general Walter Dellinger says: “It is quite clear that there are three dominant chief justices of American history, and they are John Marshall, Earl Warren, and William H. Rehnquist. I think that there’s just no question that he’s of enormous historical importance.” Conservative law professor and former Reagan Justice Department official Douglas Kmiec, a co-founder of the Federalist Society, says that Rehnquist presided over a “sea change” in the Court, taking it sharply to the right. [National Public Radio, 7/20/2005; Legal Times, 9/5/2005; Dean, 2007, pp. 129-137]

Entity Tags: William Rehnquist, US Supreme Court, Walter Dellinger, John G. Roberts, Jr, Douglas Kmiec, John Marshall, Earl Warren

Category Tags: Other Legal Changes

Nineteen US Representatives, headed by Lamar Smith (R-TX) and Darrell Issa (R-CA), send a letter to President Bush warning of a “crisis along the Southwest border” of the nation “that needs immediate attention.” Smith and his fellow signatories complain that “coyotes,” or criminals who smuggle illegal immigrants across the border in attempts to avoid immigration procedures and the US Border Patrol, constitute a grave threat to national security. Smith references the case of Antonio Amparo-Lopez, a “coyote” whom, after being arrested, was let go by Carol Lam, the US Attorney in Southern California (see February 2, 2004 and July 30, 2004). Lam and other Justice Department officials have cited a severe lack of resources in their decisions not to prosecute low-level alleged criminals such as Amparo-Lopez. The signatories ask Bush to “dedicate additional resources and direct US Attorneys in the Southwest region to make the prosecution of human smugglers a priority.” Representative Randall “Duke” Cunningham is one of the signatories; he is under investigation by Lam’s office for corruption. Six weeks later, the Justice Department’s Office of Legislative Affairs sends what conservative columnist Byron York will call “a brush-off letter” in response. [US Department of Justice, 3/23/2007 pdf file; National Review, 3/28/2007]

Entity Tags: Office of Legislative Affairs, Antonio Amparo-Lopez, Byron York, Carol C. Lam, Darrell E. Issa, Randall (“Duke”) Cunningham, George W. Bush, Lamar Smith

Category Tags: 2006 US Attorney Firings

Senator Pete Domenici (R-NM) contacts Attorney General Alberto Gonzales (see February 14, 2005), by conference call, to complain about the “job performance” of New Mexico’s US Attorney, David Iglesias (see October 18, 2001). Meeting participants include Domenici, Gonzales’s deputy chief of staff Kyle Sampson, and Assistant Attorney General William Moschella. According to Moschella’s day planner, Gonzales will call Domenici, apparently after the telephone call. Domenici cites “public corruption cases” as part of his concerns with Iglesias’s performance. [US Department of Justice, 3/13/2007 pdf file; US Department of Justice, 3/23/2007 pdf file; US Department of Justice, Office of the Inspector General, 9/29/2008; Talking Points Memo, 2011] It is not known if previous complaints regarding Iglesias from New Mexico’s Republican Party chairman Allen Weh (see May 6, 2005 and After) are part of the reason why Domenici is complaining about Iglesias. Domenici has received at least one complaint Weh sent to the White House (see August 9, 2005).

Entity Tags: D. Kyle Sampson, Alberto R. Gonzales, David C. Iglesias, Pietro V. (“Pete”) Domenici, William E. Moschella, Allen Weh

Category Tags: 2006 US Attorney Firings

John Roberts.John Roberts. [Source: In These Times]John Roberts is approved by the Senate to become the new chief justice of the US Supreme Court, replacing the recently deceased William Rehnquist (see September 5, 2005). Roberts, who once clerked for Rehnquist while Rehnquist was an associate justice, also served in the Reagan Justice Department and as an associate counsel to then-President Reagan. He was deputy solicitor general in the first Bush administration. George W. Bush appointed him to the DC Circuit Court in 2001. [White House, 9/29/2005] Roberts was originally nominated to succeed the retiring Sandra Day O’Connor, but when Rehnquist died, Bush quickly withdrew the nomination for associate justice and refiled Roberts’s name for chief justice.
Characteristics and History - Roberts appeals to conservatives for a number of reasons; he has a powerful legal intellect, is soft-spoken, personable, and telegenic, and has not been outspoken about his views on issues like abortion and the right to privacy. Law professor Stephen Wermiel, who knows Roberts well, said in July that Roberts is not “somebody who… comes off as gruff or overbearing, which some people will recall was a factor in the [Robert] Bork hearings in 1987” (see July 1-October 23, 1987). Wermiel called Roberts’s nomination “a stroke of brilliance on the White House’s part.” One area of controversy surrounds Roberts’s work with Governor Jeb Bush of Florida during the bitterly contested 2000 presidential election, where Roberts helped construct the strategies used in the Bush v. Gore case that awarded George W. Bush the presidency. Another is Roberts’s membership in the Federalist Society, an organization of conservative activist judges, lawyers, and legal thinkers. A third is his advocacy, during his time with the first Bush administration, for scrapping decades of law providing for the separation of church and state in order to allow prayer in public schools. [National Public Radio, 7/20/2005] Four days before President Bush nominated him to the Court, Roberts voted in favor of upholding the Bush administration’s assertions about its wartime powers in the case of Hamdan v. Rumsfeld (see June 30, 2006), ruling that Bush need not consult Congress before setting up military commissions, and ruling that Bush is not bound by the strictures of the Geneva Convention. Liberals are unhappy with his stance against abortion, his representation as a private attorney of corporate mining interests seeking to dodge environmental regulations and of businesses trying to evade affirmative action requirements, as well as his attempts to curb environmentalists’ efforts to save endangered species. In 2007, reporter Charlie Savage will write that while progressives and liberals busily attacked Roberts for his positions on various “hot-button” issues, “[a]lmost lost amid the hubbub was” Roberts’s “unwavering commitment to the [expansion of] presidential power,” dating back to his 1980-81 clerkship under Rehnquist and his tenure as a White House lawyer under Ronald Reagan (see June-July 1983, October 1983, February 13, 1984, and May 16, 1984). [Savage, 2007, pp. 251-255]
Quick Confirmation - The Senate agreed to expedite Roberts’s confirmation process in order to allow him to preside over the next session of the Supreme Court in October, and so gave its members little time to peruse his record. Roberts sailed through the Senate Judiciary Committee hearings, and is confirmed by a 78-22 vote. Roberts hit a brief snag when he divulged that he had met with Attorney General Alberto Gonzales just six days before hearing oral arguments in the Hamdan case, had met with Vice President Cheney and a select coterie of top White House officials while considering his verdict, and had met with Bush for the president’s final approval on the Court nomination the same day that he handed down his favorable ruling. Though 22 Democrats vote against his confirmation, because Roberts’s ascension to the Court does not change the ideological balance among the nine justices (Roberts is replacing the equally conservative Rehnquist), Senate Democrats decided not to filibuster his nomination. [Dean, 2007, pp. 154-155; Savage, 2007, pp. 252]

Entity Tags: US Department of Justice, Stephen Wermiel, Senate Judiciary Committee, Federalist Society, George W. Bush, Charlie Savage, John G. Roberts, Jr, US Supreme Court

Category Tags: Other Legal Changes

Steven Biskupic.Steven Biskupic. [Source: Urban Milwaukee (.com)]US Attorney Steven M. Biskupic of Wisconsin investigates allegations that a travel firm used its influence with Governor Jim Doyle (D-WI) to improperly land a government contract (see October 19, 2005). Doyle denies any involvement with the affair and refuses to reopen bidding on the contract, saying the contract with Adelman Travel was awarded properly. Doyle also refuses to return $20,000 in donations from Adelman CEO Craig Adelman and board member Mitchell Fromstein, a decision Jay Heck of the liberal organization Common Cause says is a mistake: “You should always return money that’s in question because the longer you hang onto it, the worse it’s going to be.” Heck says transparency proposals by Doyle’s Republican opponents, Milwaukee County Executive Scott Walker (R-WI) and US Representative Mark Green (R-WI), would be of no real use. Furthermore, Heck notes, both Walker and Green have taken money from special interests along with Doyle. “All of them are taking money that at some point will compromise public policy because they have to raise so much of it and it almost all comes from special interests and it all comes with strings attached,” he says. Green accepted almost $54,000 in donations from health care insurers and pharmaceutical interests before voting for a controversial, industry-supported Medicare prescription drug benefit in 2003. [Milwaukee Journal-Sentinel, 10/21/2005]

Entity Tags: Jay Heck, Adelman Travel, James E. (“Jim”) Doyle, Mitchell Fromstein, Scott Kevin Walker, Mark Andrew Green, Craig Adelman, Steven M. Biskupic

Category Tags: 2006 US Attorney Firings

US Attorneys David Iglesias of New Mexico and Steven M. Biskupic of Wisconsin are chosen by the Justice Department to teach other federal prosecutors how to pursue voter fraud and other election crimes at a symposium hosted by the department’s public integrity and civil rights sections. The symposium is attended by over 100 prosecutors from around the country. Iglesias will later say that he and Biskupic were chosen because they are the only two US Attorneys to have created task forces to examine allegations of voter fraud in the 2004 elections (see September 7 - October 6, 2004 and Early 2005). The two-day seminar features a luncheon speech by Attorney General Alberto Gonzales. [Washington Post, 3/19/2007]

Entity Tags: Steven M. Biskupic, Alberto R. Gonzales, David C. Iglesias, US Department of Justice

Category Tags: 2006 US Attorney Firings, Voter Fraud/Disenfranchisement, Voting Rights

Representative Jane Harman (D-CA) is recorded telling a suspected Israeli agent that she would intervene with the Justice Department to try to get charges against two Israeli lobbyists reduced. In return, the Israeli agent promises to help Harman secure the chairmanship of the House Intelligence Committee. The Israeli agent will remain unidentified; the two lobbyists, Steve Rosen and Keith Weissman, are charged with espionage after they allegedly passed along classified information to the American Israel Public Affairs Committee (AIPAC—see April 13, 1999-2004). The conversation between Harman and the Israeli agent is recorded on an wiretap, reportedly by the NSA, mounted as part of a federal investigation into AIPAC’s potential espionage operations against the US (see October 5, 2005). According to transcripts of the wiretapped conversation, Harman agrees to “waddle into” the AIPAC case “if you think it’ll make a difference.” The Israeli agent asks Harman if she could speak with Attorney General Alberto Gonzales on Rosen’s and Weissman’s behalf. Harman replies that Gonzales might not cooperate, because he “just follows White House orders,” but other officials might be more pliable. In return, the Israeli agent promises to contact House Minority Leader Nancy Pelosi (D-CA) and attempt to persuade her to name Harman as chairwoman of the Intelligence Committee if the Democrats win control of the House in the November 2006 elections. Harman tells the agent, “This conversation doesn’t exist,” and hangs up. The contents of the conversation will later be confirmed by three separate sources, including two former senior national security officials. [Congressional Quarterly, 4/19/2009] Reporter Marc Ambinder will later write that Harman’s conversation may have been recorded by the FBI, and not the NSA, as part of the its investigation into Rosen and Weissman. [Atlantic Monthly, 4/20/2009]

Entity Tags: Nancy Pelosi, Bush administration (43), American Israel Public Affairs Committee, Alberto R. Gonzales, Jane Harman, Marc Ambinder, Steve Rosen, Keith Weissman, National Security Agency, US Department of Justice

Category Tags: Government Acting in Secret, NSA Wiretapping / Stellar Wind

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

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

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

Harriet Miers.Harriet Miers. [Source: Harpers.org]After President Bush successfully places conservative judge John Roberts as chief justice of the Supreme Court (see September 29, 2005), he names White House counsel and personal friend Harriet Miers to replace the retiring Sandra Day O’Connor on the Court.
Firestorm of Criticism - The media reacts adversely to this; Miers is said to be insufficiently qualified for the position and to have been chosen because of her loyalty to Bush. Her nomination is further derailed by opposition from hard-line conservatives, who do not believe she is conservative enough in her beliefs, particularly on abortion. Miers is certainly a weak choice from most viewpoints—she has no constitutional law experience and lacks a reputation as a strong legal thinker. She has never been a judge, nor even published an academic law journal article. Even conservative stalwart Robert Bork, who is still a center of controversy from his failed Court nomination (see July 1-October 23, 1987), calls Miers’s nomination “a disaster on every level.” When a letter Miers had written Bush for his birthday in 1997 is published in the media—in which Miers gushed over Bush in breathless, almost schoolgirlish prose, calling him “cool!” and “the best governor ever!”—the derision hits a fever pitch. When she submits a questionnaire to the Senate Judiciary Committee listing her background and qualifications for the job, a questionnaire almost devoid of pertinent and specific information, the ranking members of the committee threaten to have her do it over, a humiliation she avoids by withdrawing her name from consideration.
Trumped-Up Dispute over Executive Privilege - The Senate asks to see Miers’s White House memos to judge the quality of her legal work, and the White House refuses, citing executive privilege. Many view the dispute as a trumped-up conflict designed to allow the Bush administration to save what little face it can in the debacle; neoconservative columnist Charles Krauthammer had suggested engineering just such a “conflict” to stage “irreconcilable differences over documents” that would allow the Bush White House to withdraw Miers’s nomination over the issue.
Withdrawal - Miers indeed asks Bush to withdraw her nomination, and Bush cites the documents dispute in announcing the decision to pull Miers from consideration: “It is clear that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House—disclosures that would undermine a president’s ability to receive candid counsel,” Bush says. “Harriet Miers’s decision demonstrates her deep respect for this essential aspect of the Constitutional separation of powers—and confirms my deep respect and admiration for her.” Bush settles on another nominee, Samuel Alito, to replace O’Connor (see October 31, 2005 - February 1, 2006). [Savage, 2007, pp. 262-266; Dean, 2007, pp. 155]
Staunch Advocate for Expanded Executive Power - In 2007, reporter and author Charlie Savage will write that, in his view, the Bush administration chose Miers for a simple reason: she is a staunch advocate for the continued expansion of presidential power. “Miers… could be counted on to embrace Bush’s expansive view of presidential powers,” he will write. Miers is quite loyal to Bush “and, through him, the institution he represented.” Miers’s adoration of Bush on a personal level would further guarantee her “solid support for any presidential claim of power that might come before the Court,” he will write. “Like Roberts before her, she was an executive branch lawyer who identified with the task of defending the prerogatives of the president.” On the questionnaire she submits to the Senate Judiciary Committee, Miers writes that as White House counsel, she has gained significant constitutional experience in “presidential prerogatives, the separation of powers, executive authority, and the constitutionality of proposed regulations and statutes.… My time serving in the White House, particularly as counsel to the president, has given me a fuller appreciation of the role of the separation of powers in maintaining our constitutional system. In that role, I have frequently dealt with matters concerning the nature and role of the executive power.” [Savage, 2007, pp. 265-267]

Entity Tags: US Supreme Court, John G. Roberts, Jr, Sandra Day O’Connor, Samuel Alito, Senate Judiciary Committee, Harriet E. Miers, Charlie Savage, George W. Bush, Bush administration (43), Charles Krauthammer, Robert Bork

Category Tags: Other Legal Changes

Congressional Republicans jump-start the process to renew the 1965 Voting Rights Act (VRA—see August 6, 1965 and June 29, 1989) in what media and political observers believe is an effort to outflank Democrats, who are traditionally the most staunch supporters of the bill. Key portions of the bill are set to expire in 2007, including Section 5, which requires that states, districts, and other locales with a history of racial discrimination in their electoral processes get Justice Department approval before making any changes to voting procedures. Section 5 is intended to ensure that minorities are not disenfranchised due to their race. Observers believe Republicans want to avoid a showdown over the bill in light of the upcoming midterm elections in 2006. In 1982, the Reagan administration fought Congressional Democrats over an expansion of the law, and Republicans want to make sure that scenario does not play itself out again as the midterm elections approach. Republicans also want to reach out to African-American voters, traditionally a strong Democratic voting bloc. Representative John Lewis (D-GA), a veteran of the civil rights struggle, says, “I’m not surprised at all” that Republicans want to renew the VRA and reach out to black voters. “The Republicans are reaching out to the African-American voters.… They want to make a dent with the black electorate, take some of those voters away from the Democratic side.” Lewis intends to insert language into the renewal bill that would invalidate a recent Georgia law requiring photo identification for prospective voters, a requirement he and many others say would discriminate against the poor and the elderly. Representative James Sensenbrenner (R-WI) broke with recent Republican tradition by calling on Congress to renew Section 5 and other portions of the VRA at the NAACP’s annual convention in July. “I am here to tell you publicly what I have told others privately, including the head of the Congressional Black Caucus, Rep. Mel Watt,” Sensenbrenner told the assemblage. “During this Congress we are going to extend the Voting Rights Act. We cannot let discriminatory practices of the past resurface to threaten future gains. The Voting Rights Act must continue to exist—and exist in its current form.” Sensenbrenner said at the convention that House Speaker Dennis Hastert (R-IL) considers renewal of the VRA “high on his list of issues the House will address this Congress.” A representative for Senate Majority Leader Bill Frist (R-TN) says Frist is “fired up” over renewal of Section 5. Only a few months ago, Bush appeals court nominee William Pryor, a Republican from Alabama, called Section 5 “an affront to federalism and an expensive burden that has far outlived its usefulness,” a controversial characterization that Senator Saxby Chambliss (R-GA) and other Republicans defended. In May, Attorney General Alberto Gonzales suggested that the Bush administration is not fully behind reauthorization of Section 5. Political observers say that Democrats intend to use any further Republican opposition to the VRA to claim that Republicans are insensitive to black voters, even as senior Republican strategists like Republican National Committee Chairman Ken Mehlman say they want the party to appeal to that demographic. Mehlman told the NAACP convention in July that Republican leaders had tried over the past 40 years “to benefit politically from racial polarization.” He then said, “We were wrong” to do so. [MSNBC, 10/4/2005]

Entity Tags: James Sensenbrenner, William Pryor, Bill Frist, Alberto R. Gonzales, Dennis Hastert, US Department of Justice, Voting Rights Act of 1965, Saxby Chambliss, John Lewis, Ken Mehlman, US Congress, Mel Watt, Bush administration (43), Reagan administration

Category Tags: Election, Voting Laws and Issues, Voting Rights

The Fourth Circuit Court of Appeals rules that President Bush, as commander in chief, can continue to hold Jose Padilla (see June 9, 2002), a US citizen arrested on US soil (see June 8, 2002), indefinitely as an enemy combatant. Padilla is to be treated the same as an American captured on a foreign battlefield (see June 28, 2004). The majority ruling is written by Judge J. Michael Luttig, often thought of as a potential Bush Supreme Court nominee. Luttig rules there is “no difference in principle between [Yaser Esam] Hamdi (see June 28, 2004) and Padilla.” Bush’s “powers include the power to detain identified and committed enemies such as Padilla, who associated with al-Qaeda and the Taliban regime, and who entered the United States for the avowed purpose of further prosecuting [terrorism] by attacking American citizens and targets on our own soil.” Luttig ignores the fact that Padilla has never been charged, much less convicted, of any crime. When the Bush administration later charges Padilla as an ordinary criminal—and does not charge him with with any of the terrorist activities it had long alleged he had committed—many administration critics will conclude that, just as in the Hamdi case, the administration had used inflammatory rhetoric and baseless charges to obtain a judicial decision it wanted (see October 10, 2004). When Luttig learns of the administration’s actions, he will issue a supplementary opinion excoriating the White House (see December 21, 2005). [Savage, 2007, pp. 200]

Entity Tags: Jose Padilla, J. Michael Luttig

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

Representative Darrell Issa (R-CA) writes a letter to the US Attorney for Southern California, Carol Lam (see November 8, 2002), complaining about her “apparent instance of discretionary non-prosecution of criminal illegal aliens.” He says that Lam should immediately reverse her decision not to prosecute Alfredo Gonzales Garcia (also recorded as “Alfredo Garcia-Gonzalez”), a repeat offender currently in the custody of the Border Patrol; he writes, “Criminal alien repeat offenders pose a significant danger to our citizens and must be dealt with more severely than a 24-hour detention and release.” He continues: “Your office has established an appalling record of refusal to prosecute even the worst criminal alien offenders.… Every time one of these criminals is released, our communities become more dangerous.” [US House of Representatives, 10/13/2005 pdf file; US Department of Justice, 3/23/2007 pdf file; US House of Representatives, Committee on the Judiciary, 4/13/2007 pdf file] Issa and his fellow Republicans have long pressured Lam to prosecute more immigrant cases (see February 2, 2004, July 30, 2004, November 4, 2004 - (February 2005), (December 30, 2004), and September 23, 2005). Issa has also accused Lam, apparently without proof, of having a policy of not prosecuting “immigration ‘mules,’” apparently referring to immigrant “smugglers,” sometimes called “coyotes,” who help immigrants illegally cross the border from Mexico into the US. In June 2005, Lam denied having such a policy, but did note that “it is not physically possible to prosecute every alien (or coyote) who is arrested” and therefore her office “must focus its prosecutorial resources on those aliens who pose the greatest danger to the United States by their presence.” At the same time, Assistant Attorney General William Moschella wrote in response: “The Southern District of California (SDCA) does not have a policy against prosecuting coyotes, publicly stated or otherwise. Nor does any other district. In fact, SDCA has aggressively prosecuted coyotes for years, with an increasing number of cases in each year since 2001.” [US House of Representatives, Committee on the Judiciary, 4/13/2007 pdf file]

Entity Tags: Alfredo Gonzales Garcia, Darrell E. Issa, William E. Moschella, Carol C. Lam

Category Tags: 2006 US Attorney Firings

Congress passes a law requiring the Customs and Border Patrol to relocate its illegal immigrant checkpoints near Tucson, Arizona, every seven days in order to prevent smugglers from being able to avoid those checkpoints. President Bush signs the law, then issues a signing statement saying that the Border Patrol should view the “relocation provision as advisory rather than mandatory” because, in his view, only the president has the constitutional authority to decide how to deploy law enforcement officers. As a result of Bush’s signing statement, Border Patrol authorities disobey the law, and explain to investigators from the Government Accountability Office that the law is not mandatory, but “advisory.” White House spokesman Tony Fratto later says in response to the Border Patrol’s refusal to obey the law: “The signing statements certainly do and should have an impact. They are real.” [Savage, 2007, pp. 242-243; Boston Globe, 6/19/2007]

Entity Tags: US Customs and Border Protection, George W. Bush, Tony Fratto, Government Accountability Office

Category Tags: Expansion of Presidential Power, Other Legal Changes, Signing Statements

The Omega World Travel agency claims that it was improperly denied a $750,000 contract by the Wisconsin state government in favor of another firm with ties to Governor Jim Doyle (D-WI). The other firm, Adelman Travel, is owned by Craig Adelman, a major contributor to Doyle’s political campaign. Adelman and a member of the firm’s board of directors, Mitchell Fromstein, both donated $10,000—the maximum allowed under the law—to Doyle’s re-election campaign. Omega contends that the bidding process was rigged to favor Adelman Travel. State purchasing division supervisor Georgia Thompson (see 2001) says Omega and Adelman Travel were essentially tied as frontrunners during the bidding phase. Doyle denies any involvement in the selection of Adelman Travel as the state’s supplier of travel services. Doyle’s opponent for the 2006 gubernatorial race, Representative Mark Green (R-WI), says the affair has “cast a cloud on state government.” [Milwaukee Journal-Sentinel, 10/19/2005] Omega declined to formally contest the contract award. [Milwaukee Journal-Sentinel, 10/21/2005] Department of Administration Secretary Stephen Bablitch will say there is no evidence that Adelman Travel was awarded the contract improperly, and will note that the firm lost out on three of the four contracts it bid for. [Milwaukee Journal-Sentinel, 1/24/2006]

Entity Tags: James E. (“Jim”) Doyle, Adelman Travel, Georgia Lee Thompson, Stephen Bablitch, Mark Andrew Green, Mitchell Fromstein, Omega World Travel, Craig Adelman

Category Tags: 2006 US Attorney Firings

Eighteen Republican lawmakers sign a letter written by Representative Darrell Issa (R-CA) criticizing Southern California’s US Attorney Carol Lam (see November 8, 2002) for what they call her “lax” handling of immigration cases. Representative Randall (“Duke”) Cunningham is one of the signatories; he is under investigation by Lam’s office for corruption. Issa claims that Lam is using a “catch and release” policy towards illegal immigrants caught by law enforcement officials, and refusing to prosecute such immigrants unless they have already been convicted of two felonies. David L. Smith, a legislative counsel in the Executive Office for US Attorneys, writes a draft response that is never delivered, as the Justice Department is working to set up a briefing for Issa. Another lawyer in the same office, John Crews, will later write: “The issue of catch and release is an administrative, which is to say—non criminal context. The USAO’s [US Attorneys’ offices] don’t get involved in this part of immigration enforcement.” Smith’s response indicates that Lam’s office, “along with the USAOs for just four other districts, prosecuted over two-thirds of the criminal immigration cases nationwide last year.” Smith will later indicate that he does not know if the briefing ever took place. [US House of Representatives, 10/20/2005 pdf file; US Department of Justice, 2006 pdf file; US House of Representatives, Committee on the Judiciary, 4/13/2007 pdf file; Talking Points Memo, 2011]

Entity Tags: David L. Smith, Darrell E. Issa, US Department of Justice, Randall (“Duke”) Cunningham, Executive Office for US Attorneys (DOJ), John Crews, Carol C. Lam

Category Tags: 2006 US Attorney Firings

The White House continues to fight against the McCain anti-torture amendment (see October 1, 2005). Vice President Cheney and CIA Director Porter Goss meet privately with Senator John McCain (R-AZ), the primary sponsor of the amendment, for 45 minutes to push a change in the language that would exempt CIA interrogators from the amendment’s restrictions. In 2007, author and reporter Charlie Savage will write on the remarkable aspects of Cheney’s requests. For the first time, the CIA would be “clearly authorize[d] to engage in abusive interrogations. In effect, it would legalize the abuse of detainees in CIA prisons, a matter that had previously been a gray area at best.” McCain flatly rejects Cheney’s proposal, and later says: “I don’t see how you could possibly agree to legitimizing an agent of the government engaging in torture. No amendment at all would be better than that.” [Savage, 2007, pp. 220]

Entity Tags: Richard (“Dick”) Cheney, Bush administration (43), Central Intelligence Agency, Porter J. Goss, John McCain, Charlie Savage

Timeline Tags: Torture of US Captives

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

The White House announces that President Bush will nominate Paul McNulty to be the next deputy attorney general. McNulty is currently the US Attorney for the Eastern District of Virginia, which the Washington Post will describe as the “central legal front in the Bush administration’s anti-terrorism strategy.” He was involved in the prosecutions of “American Taliban” John Walker Lindh and Zacarias Moussaoui, sometimes referred to as a candidate for the “20th hijacker” on 9/11. McNulty’s nomination comes after the previous nominee, Timothy E. Flanigan, withdrew his name from consideration at the start of the month due to opposition in the Senate. McNulty will keep his current job and serve as acting deputy attorney general until confirmed by the Senate. [Washington Post, 10/22/2005] McNulty recently took a decision not to prosecute CIA officers who abused and killed detainees in some cases referred to his office by the agency’s inspector general (see (August 2004) and Mid-October 2005).

Entity Tags: Paul J. McNulty, US Department of Justice

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

President Bush signs Executive Order 13388, which dramatically expands the powers of the US government to monitor and collect data on US citizens. [Executive Order 13388 of October 25, 2005, 10/25/2005] The order augments the power of “National Security Letters,” authorized in 1981 by then-President Ronald Reagan (see December 4, 1981), but rarely used against US citizens until the advent of the Bush administration and the USA Patriot Act. Thanks to the order, the data files are even more accessible to what the order calls “state, local, and tribal” governments as well as the undefined “appropriate private sector entities,” presumably private data-mining corporations that collect personal and financial data on US citizens for the government.
Over 30,000 NSLs a Year - The FBI now issues over 30,000 NSLs a year, a hundredfold increase from earlier administration usages. NSLs are issued by FBI field supervisors at their discretion without court warrant or oversight by the judiciary or Congress. NSLs force their recipients—librarians, booksellers, employers, Internet providers, and others—to turn over any and all personal data on their customers and employees and are legally required not to tell the targets of the investigations about the letters or the data collection. An FBI supervisor can, without oversight or reasonable suspicion of terrorist activity, collect data on what a citizen makes, spends, invests, gambles, reads in books and on the Internet, buys online, and with whom that citizen lives, works, associates, telephones, and exchanges e-mails. Senior FBI officials admit that the huge spike in NSLs stems from the FBI’s new authority to collect tremendous amounts of data on US citizens not accused of criminal activities. And NSLs are now used to generate leads against terrorist suspects and not merely pursue them.
NSLs Handled With Discretion, Officials Insist - FBI and White House officials insist that NSLs are handled with discretion and with a recognizance of Americans’ right to privacy. Joseph Billy Jr, the FBI’s deputy director for counterterrorism, says he understand that “merely being in a government or FBI database… gives everybody, you know, neck hair standing up.” But innocent Americans “should take comfort at least knowing that it is done under a great deal of investigative care, oversight, within the parameters of the law.” [Washington Post, 11/6/2005]

Entity Tags: US Department of Justice, Bush administration (43), USA Patriot Act, Federal Bureau of Investigation, National Security Letters, George W. Bush

Category Tags: Other Legal Changes, Privacy, Impositions on Rights and Freedoms, Government Acting in Secret, Government Classification, National Security Letters, Other Surveillance

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

John Rizzo.John Rizzo. [Source: C-SPAN]Guidance is issued by CIA lawyers Robert Eatinger and Steven Hermes to the CIA’s National Clandestine Service (NCS) on the preservation of videotapes of detainee interrogations made by the CIA. [New York Times, 12/19/2007] The guidance is apparently used as justification for the tapes’ destruction (see November 2005), but its content is unclear. According to one account, “Lawyers within the clandestine branch of the Central Intelligence Agency gave written approval in advance to the destruction in 2005 of hundreds of hours of videotapes documenting interrogations of two lieutenants from al-Qaeda.” [New York Times, 12/11/2007] Another account supports this, saying the lawyers give “written guidance to [CIA manager Jose] Rodriguez that he had the authority to destroy the tapes and that the destruction would violate no laws.” [New York Times, 12/19/2007] However, according to another account: “[The guidance] advises that there is no explicit legal reason why the Clandestine Service had to preserve the tapes… The document does not, however, directly authorize the tapes’ destruction or offer advice on the wisdom or folly of such a course of action.” [Newsweek, 12/11/2007] Some CIA videotapes have been requested for court proceedings, meaning such tapes should not be destroyed, but it is unclear if the tapes that are destroyed in November 2005 have been requested by courts or not (see May 7-9, 2003 and November 3-14, 2005). The CIA’s top lawyer, John Rizzo, is not asked for an opinion, although he has been involved in discussions about what to do with the tapes for years and several high-ranking officials and legislators are of the opinion that the tapes should not be destroyed (see November 2005). [New York Times, 12/11/2007] Eatinger and Hermes apparently inform Rizzo they have issued the guidance and expect Rodriguez will consult him before destroying the tapes, but Rodriguez does not do so. [New York Times, 12/19/2007] The New York Times will comment, “It is unclear what weight an opinion from a lawyer within the clandestine service would have if it were not formally approved by Mr. Rizzo. But [an anonymous former official] said Mr. Rodriguez and others in the clandestine branch believed the legal judgment gave them the blessing to destroy the tapes.” The former official will also say they “didn’t need to ask Rizzo’s permission.” [New York Times, 12/11/2007] A lawyer acting for Rodriguez will later say, “He had a green light to destroy them.” [New York Times, 12/19/2007] However, other former CIA officers will express surprise that a lawyer junior to Rizzo would approve such a controversial decision without asking for his input. Former CIA lawyer John Radsan will say, “I’d be surprised that even the chief [NCS] lawyer made a decision of that magnitude without bringing the General Counsel’s front office into the loop.” He adds, “Although unlikely, it is conceivable that once a CIA officer got the answer he wanted from a [NCS] lawyer, he acted on that advice… But a streamlined process like that would have been risky for both the officer and the [NCS] lawyer.” [New York Times, 12/11/2007]

Entity Tags: Robert Eatinger, National Clandestine Service, Jose Rodriguez, Jr., Steven Hermes, John Radsan, Central Intelligence Agency, John Rizzo, Directorate of Operations

Timeline Tags: Torture of US Captives, Complete 911 Timeline

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

President Bush, stung by the opposition from both left and right that derailed his nomination of Harriet Miers for the Supreme Court (see October 3-27, 2005), nominates appeals court judge Samuel Alito to the Court to replace the retiring Sandra Day O’Connor. [Dean, 2007, pp. 155-157]
Staunch Advocate of Expanding Presidential Power - Alito has impeccable credentials, especially in contrast to the widely derided Miers. He is a graduate of Yale Law School, a long-time member of the conservative Federalist Society, and has years of decisions behind him as an appellate court judge. He is a product of the Reagan-era Justice Department. Bush calls him “one of the most accomplished and respected judges in America.” He is a powerful anti-abortion advocate, and a staunch supporter of granting ever more power to the executive branch, especially at the expense of the legislative and judicial branches. During his time in the Reagan Justice Department, he worked on a project to “increase the power of the executive to shape the law.” In 2000 he called the “unitary executive theory” (see April 30, 1986) the “gospel according to the OLC,” the Justice Department’s Office of Legal Counsel, where he worked for four years, and said he was firmly committed to advancing that theory. [Savage, 2007, pp. 267-271]
Bland Facade at Hearings - Alito receives a unanimous “well qualified” assessment from the American Bar Association, and the Bush administration expects that his nomination will sail through the Senate confirmation hearings as quickly and painlessly as did Bush’s previous choice for the Court, John Roberts (see September 29, 2005). The hearings are more contentious than Bush would like, and former Nixon White House counsel John Dean will say in 2007 that Alito’s performance before the Judiciary Committee “only served to confirm that the entire process has become little more than a great charade.” Senator Edward Kennedy (D-MA), one of the longest-serving members of the committee, observes that the Bush administration believes—correctly—that it can nominate radical right-wing extremists to the Court virtually at will, “as long as their views were not well known,” and adds, “[T]he current White House [has] turned the effort to hide nominees’ views into an art form.” Like Roberts, Alito presents a bland, non-confrontational facade to the committee (see January 9-13, 2006), refusing to take a personal stance on any issue and giving the impression that, as Kennedy will say after Alito and Roberts begin their service on the Court, he would be “as neutral as a baseball umpire.… The men who promised to be neutral umpires look more and more like loyal members of the president’s team.” [Dean, 2007, pp. 155-157]
Party-Line Confirmation - After an attempt by Senators Kennedy and John Kerry (D-MA) to filibuster Alito’s confirmation fails, the Senate confirms Alito’s ascension to the Court by a near-party line 58-42 vote, the closest such vote since Clarence Thomas’s (see October 13, 1991). Senator Orrin Hatch (R-UT) condemns what he calls the “very bitter partisanship” over Alito’s nomination, and accuses Democrats of playing politics: “When you have a man who has the decency, the legal ability and the capacities that Judge Alito has treated this way, I think it’s despicable.” Alito, whose hardline conservative beliefs are sufficiently masked during the hearings, replaces the far more moderate O’Connor, who before her retirement made up the “moderate center” of the Court with Justices Anthony Kennedy and David Souter. Now Alito joins Thomas, Roberts, and Antonin Scalia to form a hard-right conservative bloc on the Court which, when joined by center-right conservative Kennedy, forms a nearly unshakable conservative majority. [CNN, 2/1/2006]
Overturning Roe? - Many believe that Alito gives the Court the fifth vote it needs to finally overturn the landmark abortion case Roe v. Wade (see January 22, 1973), a longtime goal of social conservatives that would go far to make abortions illegal in the US. [Slate, 10/31/2005]

Entity Tags: Orrin Hatch, Sandra Day O’Connor, Samuel Alito, John Dean, US Supreme Court, John G. Roberts, Jr, John Kerry, George W. Bush, Clarence Thomas, Anthony Kennedy, David Souter, Edward M. (“Ted”) Kennedy, Harriet E. Miers, Antonin Scalia

Category Tags: Other Legal Changes

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

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

Timeline Tags: Torture of US Captives, Complete 911 Timeline

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

The Central Intelligence Agency destroys videotapes of the interrogations of two high-ranking detainees, Abu Zubaida and Abd al-Rahim al-Nashiri, which were made in 2002 (see Spring-Late 2002). One anonymous senior intelligence official later claims that “Several hundred hours” of videotapes are destroyed. [Washington Post, 12/18/2007] The tapes are destroyed at the CIA station in Thailand by station chief Michael Winograd, as Zubaida and al-Nashiri apparently were tortured at a secret CIA prison in that country. [Newsweek, 6/28/2008; Associated Press, 7/26/2010] The decision to destroy the tapes is apparently made by Jose Rodriguez, chief of the CIA’s Directorate of Operations, despite previous advice not to destroy them (see November 2005). However, some accounts will suggest that Rodriguez received clearance to destroy the tapes (see December 7, 2007). [New York Times, 12/8/2007] The CIA’s treatment of detainees has recently come under increased scrutiny. As the Wall Street Journal will later remark, “the Abu Ghraib prison pictures were still fresh, the existence of secret CIA prisons had just been revealed, and politicians on Capitol Hill were talking about curtailing ‘extreme techniques,’ including the Central Intelligence Agency’s own interrogation tactics.” [Wall Street Journal, 12/10/2007] Beginning on November 2, 2005, there are some pivotal articles revealing details about the CIA’s handling of detainees, suggesting that some of them were illegally tortured (see November 2-18, 2005). According to a 2007 statement by future CIA Director Michael Hayden, the tapes are destroyed “in the absence of any legal or internal reason to keep them” and because they apparently pose “a serious security risk”; if they were leaked, they could be used for retaliation by al-Qaeda and its sympathizers. [Central Intelligence Agency, 12/6/2007] However, this rationale will be questioned when the destruction is revealed in late 2007 (see December 6, 2007). Senator Carl Levin (D-MI) will call this “a pathetic excuse.… You’d have to burn every document at the CIA that has the identity of an agent on it under that theory.” CBS News will offer an alternative explanation, saying that the tapes are destroyed “to protect CIA officers from criminal prosecution.” [CBS News, 12/7/2007] CIA Director Porter Goss and the CIA’s top lawyer, John Rizzo, are allegedly not notified of the destruction in advance, and Rizzo will reportedly be angry at this failure. [New York Times, 12/8/2007] But Newsweek will later claim that Goss and Rizzo were involved in extensive discussions with the White House over what to do with the tapes. Goss supposedly thought there was an understanding the tapes would be saved and is upset to learn they have been destroyed (see Between 2003-Late 2005 and Before November 2005). [Newsweek, 12/11/2007] Congressional officials responsible for oversight are not informed for a year (see March 14, 2007). A White House spokeswoman will say that President Bush has “no recollection” of being made aware of the tapes’ destruction before 2007 (see December 11, 2007). It is also unclear whether the Justice Department is notified in advance or not. [New York Times, 12/8/2007] The CIA still retains tapes of interrogations of at least one detainee (see September 19 and October 18, 2007).

Entity Tags: Abd al-Rahim al-Nashiri, Abu Zubaida, Jose Rodriguez, Jr., CIA Bangkok Station, John Rizzo, Porter J. Goss, Michael K. Winograd, Central Intelligence Agency

Timeline Tags: Torture of US Captives, Complete 911 Timeline

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

The White House continues to battle a Senate-approved amendment against torture (see October 1, 2005). Vice President Cheney, the administration’s strongest voice in favor of torture, gathers a group of Republican senators and gives what is later described as an impassioned plea to let the CIA torture when necessary. President Bush needs that option, Cheney argues, and a prohibition against torture may eventually cost the nation “thousands of lives.” He cites alleged 9/11 mastermind Khalid Shaikh Mohammed as one of torture’s success stories (see February 29 or March 1, 2003, Shortly After February 29 or March 1, 2003, and June 16, 2004). Cheney fails to tell the gathering that the US has overseen the torture of Mohammed’s wife and children, and that Mohammed was told that if he didn’t cooperate, his children would be subjected to further abuse (see After September 11, 2002). He also fails to tell them that the information elicited from Mohammed was considered unreliable (see Summer 2003), and that many of Mohammed’s interrogators felt that torture merely hardened his resistance. During the meeting, John McCain (R-AZ), the author of the anti-torture amendment, tells Cheney, “This is killing us around the world.” On November 4, the Republican House leadership postpones a vote on the amendment when it realizes the amendment will pass overwhelmingly. [Dubose and Bernstein, 2006, pp. 196]

Entity Tags: Richard (“Dick”) Cheney, Bush administration (43), John McCain

Timeline Tags: Torture of US Captives

Category Tags: Expansion of Presidential Power, Gov't Violations of Prisoner Rights, Government Acting in Secret

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

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

Timeline Tags: Torture of US Captives, Complete 911 Timeline

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

On November 3, 2005, Leonie Brinkema, the judge in the Zacarias Moussaoui trial, asks the CIA about recordings of interrogations of detainees who are related to the Moussaoui case. Eleven days later, the CIA again incorrectly claims to prosecutors in that trial that it has no such recordings. The CIA made a similar claim in 2003 (see May 7-9, 2003), but in fact the CIA secretly videotaped detainee interrogations in 2002 (see Spring-Late 2002). Some of these videotapes are destroyed this month (see November 2005), however it is unknown if the destruction takes place before or after this date. In late 2007, the CIA will reveal that it did have some videotapes after all and prosecutors will finally be able to view some of them (see September 19 and October 18, 2007). But it will also be revealed that most of the videotapes were destroyed (see December 6, 2007). Prosecutors will later claim that neither the video nor the audio recordings contained material relevant to the Moussaoui trial, and some of the content of the interrogations was provided during discovery. [US District Court for the Eastern District of Virginia, Alexandria Division, 7/31/2006; US District Court for the Eastern District of Virginia, Alexandria Division, 10/25/2007 pdf file; Reuters, 11/13/2007]

Entity Tags: Leonie Brinkema, Zacarias Moussaoui, Central Intelligence Agency

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

Category Tags: Impositions on Rights and Freedoms, Gov't Violations of Prisoner Rights, Government Classification

Assistant Attorney General William Moschella writes to Michael Battle, the director of the Justice Department’s Executive Office for US Attorneys, and others. In his letter, Moschella recommends that “we support eliminating the court’s role” in appointing interim US Attorneys, “and believe the AG [attorney general] should have that authority alone.” Essentially, Moschella is recommending that Attorney General Alberto Gonzales (see February 14, 2005) be the only person with the authority to appoint interim US Attorneys. Language will be inserted into the USA Patriot Act reauthorization (see July 2005 - March 2006 and March 9, 2006) giving Gonzales this power. Moschella also includes Senate Judiciary Committee official Brett Tolman, who will later become the US Attorney for Utah, in the email exchange, along with Justice Department aide Monica Goodling and Battle’s aide Natalie Voris. [US Department of Justice, 3/23/2007 pdf file; Talking Points Memo, 2011] It is unclear if Moschella knows that the language inserted in the USA Patriot Act reauthorization was first drafted almost six months before his communication with Battle (see July 2005 - March 2006).

Entity Tags: Michael A. Battle, Executive Office for US Attorneys (DOJ), Senate Judiciary Committee, Monica M. Goodling, Alberto R. Gonzales, William E. Moschella

Category Tags: 2006 US Attorney Firings

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

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

Category Tags: Expansion of Presidential Power, Other Legal Changes, Patriot Act, Government Acting in Secret

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

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

Category Tags: Expansion of Presidential Power, 2006 US Attorney Firings

David Iglesias, the US Attorney for New Mexico (see October 18, 2001), does well in his second Evaluation and Review Staff (EARS) evaluation by the Justice Department (see 2002). The report of the evaluation states: “The United States Attorney… was respected by the judiciary, agencies, and staff. The First Assistant United States Attorney… appropriately oversaw the day-to-day work of the senior management team, effectively addressed all management issues, and directed resources to accomplish the department’s and the United States Attorney’s priorities.”” The EARS report contains no criticisms or concerns about Iglesias’s leadership. Of the office (the USAO), the report finds: “The USAO had established an active and effective Anti-Terrorism Advisory Council. The USAO had a nationally recognized and highly effective firearms violence initiative and an active and effective program to address drug trafficking crimes in the district. The USAO was effectively prosecuting immigration and border crimes within the constraints of the available resources.” The only major criticism of the office is an apparent “lack of coordination within the civil division and between the civil and criminal divisions” in some areas. [US House of Representatives, Committee of the Judiciary, 4/13/2007 pdf file; US House of Representatives, Committee on the Judiciary, 6/15/2007 pdf file; US Department of Justice, Office of the Inspector General, 9/29/2008] In January 2006, Iglesias will receive a laudatory letter from Michael Battle, the head of the Executive Office for US Attorneys, praising the “legal management of your office” and his “exemplary leadership in the department’s priority programs.” [US House of Representatives, Committee on the Judiciary, 5/21/2007]

Entity Tags: US Department of Justice, David C. Iglesias, Michael A. Battle

Category Tags: 2006 US Attorney Firings

The Defense Department admits to having detained over 80,000 people in facilities from Afghanistan to Guantanamo since the 9/11 attacks. At least 14,500 people are currently in US custody in connection with the war on terror; around 13,814 are being held in Iraq and some 500 detainees are at the Guantanamo detention facility. An unknown number are being held in Afghanistan and elsewhere. The Bush administration has defended its incarceration of so many detainees, many without charge or legal representation, from criticism by human rights organizations, civil liberties groups, and political opponents. What many find indefensible is the CIA’s practice of “rendering” terror suspects to foreign countries for interrogation and torture, as well as making some prisoners “disappear” into secret prisons in foreign countries. Currently, the Bush administration is attempting to counter reports that the CIA has used private jets to transport suspects to at least six countries, either in Europe or through European countries’ airspace. “If these allegations turn out to be true, the crucial thing is whether these flights landed in the member states with or without the knowledge and approval of the authorities,” says Terry Davis, the Council of Europe’s secretary general. The CIA has refused to comment on this or other reports. [Guardian, 11/18/2005]

Entity Tags: Central Intelligence Agency, Bush administration (43), US Department of Defense

Timeline Tags: Torture of US Captives, Complete 911 Timeline

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

David Smith, the legislative counsel for the Executive Office for US Attorneys, writes a response to Republican complaints about the performance of Southern California US Attorney Carol Lam (see October 20, 2005). Lam’s critics allege that she has been “lax” in prosecuting immigration cases. Smith writes: “At the close of Fiscal Year 2005, SDCA [the Southern District of California, Lam’s office] had 385 alien smuggling [illegal immigration] cases pending against 454 defendants, which is the highest annual number of cases that office has ever had.… [D]espite the fact that both the SDCA and the Department of Justice as a whole have numerous criminal priorities in addition to criminal aliens, from Fiscal Year 200 through Fiscal Year 2005, well over half of all criminal cases filed by SDCA were cases filed under just three statutes, the primary criminal alien statutes.” The actual letter on the subject is slated to be sent from the office of Assistant Attorney General William Moschella, but it is unclear if the letter is ever actually sent. [Talking Points Memo, 2011]

Entity Tags: David Smith, Executive Office for US Attorneys (DOJ), Carol C. Lam, William E. Moschella

Category Tags: 2006 US Attorney Firings

Jose Padilla being escorted by federal agents in January 2006.Jose Padilla being escorted by federal agents in January 2006. [Source: Alan Diaz / Associated Press]Jose Padilla, a US citizen and “enemy combatant” alleged to be an al-Qaeda terrorist (see May 8, 2002) and held without charges for over three years (see October 9, 2005), is charged with being part of a North American terrorist cell that sent money and recruits overseas to, as the indictment reads, “murder, maim, and kidnap.” The indictment contains none of the sensational allegations that the US government has made against Padilla (see June 10, 2002), including his supposed plan to detonate a “dirty bomb” inside the US (see Early 2002) and his plans to blow up US hotel and apartment buildings (see March 2002). Nor does the indictment accuse Padilla of being a member of al-Qaeda. Attorney General Alberto Gonzales says, “The indictment alleges that Padilla traveled overseas to train as a terrorist (see September-October 2000) with the intention of fighting a violent jihad.” He refuses to say why the more serious charges were not filed. Some provisions of the Patriot Act helped the investigation, Gonzales adds: “By tearing down the artificial wall that would have prevented this kind of investigation in the past, we’re able to bring these terrorists to justice,” he says. The Padilla case has become a central part of the dispute over holding prisoners such as Padilla without charge; by charging Padilla with lesser crimes, the Bush administration avoids the possibility of the Supreme Court ruling that he and other “enemy combatants,” particularly American citizens, must either be tried or released. Law professor Eric Freedman says the Padilla indictment is an effort by the administration “to avoid an adverse decision of the Supreme Court.” Law professor Jenny Martinez, who represents Padilla, says: “There’s no guarantee the government won’t do this again to Mr. Padilla or others. The Supreme Court needs to review this case on the merits so the lower court decision is not left lying like a loaded gun for the government to use whenever it wants.” Padilla’s lawyers say the government’s case against their client is based on little more than “double and triple hearsay from secret witnesses, along with information allegedly obtained from Padilla himself during his two years of incommunicado interrogation.” Padilla will be transferred from military custody to the Justice Department, where he will await trial in a federal prison in Miami. He faces life in prison if convicted of conspiracy to murder, maim, and kidnap overseas. The lesser charges—providing material support to terrorists and conspiracy—carry maximum prison terms of 15 years each. [Associated Press, 11/22/2005; Fox News, 11/23/2005]
'Dirty Bomb' Allegations 'Not Credible,' Says Former FBI Agent - Retired FBI agent Jack Cloonan, an expert on al-Qaeda, later says: “The dirty bomb plot was simply not credible. The government would never have given up that case if there was any hint of credibility to it. Padilla didn’t stand trial for it, because there was no evidence to support it.” [Vanity Fair, 12/16/2008]
Issue with CIA Videotapes - In 2002, captured al-Qaeda leader Abu Zubaida identified Padilla as an al-Qaeda operative (see Mid-April 2002) and the government cited Zubaida as a source of information about Padilla after Padilla’s arrest. Yet, sometime this same month, the CIA destroys the videotapes of Zubaida’s interrogations from the time period where he allegedly identified Padilla (see November 2005). The Nation’s Aziz Huq will later comment: “Given the [Bush] administration’s reliance on Zubaida’s statements as evidence of Padilla’s guilt, tapes of Zubaida’s interrogation were clearly relevant to the Padilla trial.… A federal criminal statute prevents the destruction of any record for a foreseeable proceeding, even if the evidence is not admissible.… [I]t seems almost certain that preservation of the tapes was legally required by the Jose Padilla prosecution.” [Nation, 12/11/2007]

Entity Tags: Jenny Martinez, Jose Padilla, US Supreme Court, Jack Cloonan, Eric Freedman, Alberto R. Gonzales, Bush administration (43), Al-Qaeda, Aziz Huq, Central Intelligence Agency

Timeline Tags: Torture of US Captives, Complete 911 Timeline

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

Bradley Schlozman, the head of the voting rights section of the Justice Department’s Civil Rights Division (CRD), writes an op-ed published in the Atlanta Journal-Constitution alleging that the newspaper is guilty of “confus[ing] and misrepresent[ing]” the facts surrounding his office’s approval of a controversial Georgia voter identification statute (see 2005). The voter ID law has been criticized as being discriminatory against minorities and being designed to suppress minority voting. Schlozman says that the newspaper’s publication of a leaked internal memorandum from his office was unfair, as it “was merely a draft that did not incorporate the analytical work and extensive research conducted by all the attorneys assigned to the matter.” He goes on to accuse the paper of failing to report that the memo “did not represent the recommendation of the veteran career chief of the Civil Rights Division’s voting section, to whom preclearance approval decisions are expressly delegated by federal regulation.” Schlozman says that the voter ID law is “clearly not racially retrogressive within the limited scope of the Voting Rights Act,” and denies that demanding a number of identification papers from minority voters has ever been shown to have “any adverse impact on minority voters.” Data in the leaked memo showed that a significant proportion of African-American voters would be prevented from voting by the voter ID law; Schlozman writes that “corrected data… not incorporated in the leaked memo… indicate that African-American citizens are actually slightly more likely than white citizens to possess one of the necessary forms of identification.” He concludes: “Attorneys of the voting section have worked diligently to enforce voting laws and have achieved concrete, measurable advances for a record number of minority voters. We are enormously proud of this accomplishment.” [Atlanta Journal-Constitution, 11/25/2005] The Georgia voter identification law will be overturned by a federal court as illegal and discriminatory (see September 19, 2006).

Entity Tags: Civil Rights Division (DOJ), Bradley J. Schlozman, Atlanta Journal-Constitution

Category Tags: Election, Voting Laws and Issues, Voter Fraud/Disenfranchisement

US Attorney Paul Charlton of Arizona (see November 14, 2001) and his office receive their second Justice Department evaluation, known as EARS (Evaluation and Review Staff). Charlton and his office received a strongly positive evaluation in 2003 (see December 2003). Both the Phoenix and Tucson offices are “very well run,” the second report finds, although it identifies some minor management issues such as clear division of duties between the administrative division and Charlton’s Special Assistant. [US House of Representatives, Committee of the Judiciary, 4/13/2007 pdf file] Charlton will be fired shortly after this evaluation is performed (see December 20, 2006). He has already been identified as a target for removal by Justice Department aide Monica Goodling (see January 1-9, 2006).

Entity Tags: Paul K. Charlton, US Department of Justice

Category Tags: 2006 US Attorney Firings

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

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

Timeline Tags: Torture of US Captives

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

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

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

Timeline Tags: Torture of US Captives, Complete 911 Timeline

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

Judge Colleen Kollar-Kotelly, the presiding judge over the Foreign Intelligence Surveillance Court (FISC), learns from Justice Department liaison James Baker that at least one more government application for a FISA surveillance warrant is based on illegally obtained evidence. Kollar-Kotelly has warned the Justice Department about this practice in the past (see 2004 and 2005). This time, administration officials claim that the evidence in question is presented due to an error by a low-level Defense Department employee. Kollar-Kotelly asks Defense Secretary Donald Rumsfeld to ensure that such an “error” does not happen again. [Washington Post, 2/9/2006]

Entity Tags: US Department of Justice, James Baker, Colleen Kollar-Kotelly, US Department of Defense, Foreign Intelligence Surveillance Court, Donald Rumsfeld

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

Deputy Director of National Intelligence Michael Hayden learns that the CIA has videotaped some detainee interrogations (see Spring-Late 2002). Hayden will later say he finds this out towards the end of his time as deputy director of national intelligence, a position he leaves in May 2006. Although the tapes were destroyed several months previously (see November 2005), Hayden will later say he is not aware of their destruction at this point: “I did not personally know before they were destroyed, not at all… I was aware of the existence of the tapes but really didn’t become focused on it until the summer of ‘06.” It appears that Hayden does not inform any congressional oversight committees of the destruction until 2007 (see March 14, 2007 and December 7, 2007), even though he becomes CIA director in the summer of 2006 (see May 5, 2006). [Associated Press, 12/12/2007; Fox News, 12/13/2007]

Entity Tags: Michael Hayden, Central Intelligence Agency

Timeline Tags: Torture of US Captives, Complete 911 Timeline

Category Tags: Impositions on Rights and Freedoms, Gov't Violations of Prisoner Rights, Government Classification

In November 2005, CIA officer Jose Rodriguez will destroy videotapes of interrogations of at least two high-ranking al-Qaeda detainees (see November 2005), despite numerous court orders and commands from superiors and oversight agencies to keep them. The CIA will later claim that Rodriguez acted on his own without notifying CIA lawyers or his bosses, yet there is no evidence that he was ever punished in any way. The New York Times will later comment, “Some in Congress are curious to know why, if Mr. Rodriguez had really ignored White House advice not to destroy the tapes, he was apparently never reprimanded.” [New York Times, 12/13/2007]

Entity Tags: Central Intelligence Agency, Jose Rodriguez, Jr.

Timeline Tags: Torture of US Captives, Complete 911 Timeline

Category Tags: Impositions on Rights and Freedoms, Gov't Violations of Prisoner Rights, Government Classification

Supreme Court Chief Justice John Roberts (see September 29, 2005) has his first opportunity to name a judge to the secret Foreign Intelligence Surveillance Court. Judge James Robertson has resigned from the court in protest of the administration’s warrantless wiretapping program (see December 21, 2005). Roberts chooses as his replacement Judge Robert Bates, who voted to dismiss the General Accounting Office’s lawsuit attempting to force Vice President Cheney to release documents surrounding his energy task force (see May 10, 2005). [Savage, 2007, pp. 262]

Entity Tags: John G. Roberts, Jr, Robert Bates, Foreign Intelligence Surveillance Court, US Supreme Court, James Robertson

Category Tags: Court Procedures and Verdicts, Other Legal Changes

The Washington Post reports that the controversial Texas congressional redistricting plan headed by Representative Tom DeLay (R-TX—see 2002-2004) was found to be illegal by Justice Department lawyers, but their judgment was overruled by senior political appointees at the Department of Justice (DOJ) who approved the plan. The information comes from a previously undisclosed memo written in December 2003 (see December 12, 2003) and provided to the Post by, the Post writes, “a person connected to the case who is critical of the adopted redistricting map.” Six lawyers and two analysts at the DOJ found that the DeLay plan violated the Voting Rights Act (VRA—see August 6, 1965, 1970, 1975, April 22, 1980, and June 29, 1989) by illegally diluting African-American and Hispanic voting power in two Congressional districts. Texas Republicans knew the plan would likely be found to be discriminatory, the lawyers wrote in the memo, but went ahead with the plan anyway because it would maximize the number of Republicans the state would send to Congress. In the 2004 federal elections, Texas sent five additional Republicans to the US House, helping to solidify GOP control of that body. A lawyer for the Texas Democrats and minority groups who are challenging the redistricting in court, J. Gerald Hebert, says of the DOJ memo: “We always felt that the process… wouldn’t be corrupt, but it was.… The staff didn’t see this as a close call or a mixed bag or anything like that. This should have been a very clear-cut case.” DOJ spokesman Eric W. Holland, defending the decision by senior DOJ officials to approve the plan, points to a lower-court decision in the case that affirmed the plan’s legality. “The court ruled that, in fact, the new congressional plan created a sufficient number of safe minority districts given the demographics of the state and the requirements of the law,” he says, and notes that Texas now has three African-Americans in Congress whereas in the years before redistricting, it had only two. Hebert says the DOJ’s approval of the redistricting plan was a critical factor in the court’s decision to affirm the plan. DeLay spokesman Kevin Madden accuses Hebert of engaging in what he calls “nonsensical political babble,” and says the DOJ is correct to have found that the plan has no discriminatory effects. Under both the older plan (see 2000-2002) and the DeLay plan, minority-led districts number 11, but under the DeLay plan, Texas gained two more Congressional districts, both represented by Republicans. Recently, a similar case was reported in which DOJ lawyers found a Georgia redistricting plan to be illegal, but senior political appointees overruled the legal judgment and approved the plan. A court later found the plan to be illegal. [Washington Post, 12/2/2005]

Entity Tags: Kevin Madden, Eric W. Holland, J. Gerald Hebert, US Department of Justice, Voting Rights Act of 1965, Washington Post, Tom DeLay

Category Tags: Voting Rights, Election, Voting Laws and Issues, Voter Fraud/Disenfranchisement

Mark Posner, a law professor at American University who served in the civil rights division of the US Department of Justice (DOJ) for 23 years and supervised the DOJ’s “Section 5” reviews under the Voting Rights Act (VRA—see August 6, 1965, 1970, 1975, April 22, 1980, and June 29, 1989) for 10 years, writes an article for the prestigious legal information Web site FindLaw that says the DOJ found the controversial Texas redistricting plan (see 2002-2004) legal for purely partisan political reasons. Posner’s article is spurred by the recent revelation of a 2003 DOJ memo (see December 12, 2003 and December 2, 2005) that found the redistricting plan to be illegal, and the Washington Post’s finding that the memo was rejected by political appointees at the DOJ, who saw to it that the plan was approved by the civil rights division. Posner is more specific than the Post article, writing: “A Republican appointee overrode the staff recommendation and granted approval, allowing the plan to go into effect for the 2004 Congressional elections. In so doing, the official sided with his political party and with one of the most powerful Republicans in Washington.” Posner notes that the Bush administration has defended the decision, claiming that it was merely the result of what he calls “an honest disagreement between the career and political staff about how to apply the law to a complex set of facts.” In spite of the defense, including a statement by the attorney general, Posner writes that “this is not a case of an honest disagreement between lawyers. Rather, there is strong objective evidence that politics prevailed over the requirements of the Voting Rights Act.” The civil rights division of the DOJ is required under the VRA to “pre-clear,” or approve, any redistricting plan that might result in the unwarranted dilution of minority voting strength in particular districts. Texas, as a state with a history of discriminating against its minority citizens, is one of a number of states required to obtain DOJ approval for new redistricting plans. The DOJ has examined some 435,000 election changes since 1965, Posner writes, and thusly must “follow procedures which… ensure that preclearance decisions are based on the law and the facts, and not on extraneous factors. Among other things, these procedures must guard against the temptation that some political appointees can have to decide matters based on what would benefit their political party.” The DOJ career staff play a key role in such procedures, though the assistant attorney general (AAG) for civil rights makes the final decision. Until the Texas redistricting plan, Posner writes, AAGs have generally relied on the opinions and findings of their staff to help them craft a final decision. “When the career staff unanimously recommends that preclearance be denied, the AAG almost never overrides that recommendation and approves the change. On the flip side, the staff’s unanimous preclearance recommendation always results in the change being approved.” But the Texas redistricting approval upended the usual procedure. Despite the unanimous recommendation from the staff that the DOJ block Texas from implementing the plan due to its discriminatory effect, the AAG granted approval to the plan. “The influence of politics is evident,” Posner concludes. The DOJ “significantly and substantially deviated from the decisional practice which, for nearly four decades, has served the department well in enforcing Section 5 in a fair and nonpartisan manner.… [T]he evidence points to a single conclusion: the Justice Department did not serve the interests of minority citizens in this case, but, instead, served the political interests of the Republican Party.” [FindLaw, 12/6/2005]

Entity Tags: Civil Rights Division (DOJ), Texas State Legislature, Voting Rights Act of 1965, Mark Posner

Category Tags: Voting Rights, Election, Voting Laws and Issues

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

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

Category Tags: Media Freedoms, Privacy, Impositions on Rights and Freedoms, Government Acting in Secret, Government Classification, NSA Wiretapping / Stellar Wind, Media Involvement and Responses

The “Salt Pit” prison near Kabul, Afghanistan.The “Salt Pit” prison near Kabul, Afghanistan. [Source: Trevor Paglen.]Khalid el-Masri and the American Civil Liberties Union (ACLU) file a lawsuit against former CIA director George Tenet and three corporations. The suit alleges that all of the defendants were complicit in el-Masri’s abduction transfer to to a secret prison, and subsequent mistreatment (see December 31, 2003-January 23, 2004, January 23 - March 2004, and March-April 2004 ). Tenet is said to have known that the CIA had mistakenly detained an innocent man, but allowed el-Masri to remain in detention for two months. The three corporations are accused of owning and operating airplanes that transported el-Masri to a secret prison in Afghanistan known as the “Salt Pit.” [American Civil Liberties Union, 12/6/2005; Beeson, Wizner, and Goodman, 12/6/2005 pdf file]

Entity Tags: Khalid el-Masri, American Civil Liberties Union, Central Intelligence Agency, George J. Tenet

Timeline Tags: Torture of US Captives

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

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

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

Category Tags: Government Acting in Secret, National Security Letters

The Washington Post learns that the Justice Department has barred staff attorneys from offering recommendations in major Voting Rights Act (VRA—see August 6, 1965) cases, a drastic change from the earlier policy, which was designed to insulate such decision from political considerations. The decision comes amid what the Post calls “growing public criticism of Justice Department decisions to approve Republican-engineered plans in Texas (see December 12, 2003, December 2, 2005, and December 5, 2005) and Georgia (see 2005, November 25, 2005, and September 19, 2006) that were found to hurt minority voters by career staff attorneys who analyzed the plans. Political appointees overruled staff findings in both cases.” In the Georgia redistricting case, a staff memo advised rejecting the Georgia plan because it required voters to show photo ID at the polls, a policy that the memo said would disenfranchise some African-American voters. Under the new policy, that recommendation was removed from the memo and was not forwarded to higher officials in the civil rights division (CRD). The DOJ has claimed the August 25 memo was “an early draft,” even though the DOJ gave “preclearance” for the Georgia plan to be adopted on August 26. A federal judge blocked the law’s implementation, calling it a return to Jim Crow-era policies. The policy was adopted by John Tanner, the head of the CRD’s voting rights section (VRS). DOJ spokesperson Eric Holland says, “The opinions and expertise of the career lawyers are valued and respected and continue to be an integral part of the internal deliberation process upon which the department heavily relies when making litigation decisions.” Tanner has recently lambasted the quality of work by the VRS staff, some of whom have been in the section for decades. Some of the staff members boycotted the staff Christmas party because they were too angry to attend, sources within the section say. Experts like Jon Greenbaum, a VRS veteran who now directs the Voting Rights Project at the Lawyers’ Committee for Civil Rights Under Law, says that stopping staff members from making such recommendations is a significant departure and runs the risk of making the process appear more political. “It’s an attempt by the political hierarchy to insulate themselves from any accountability by essentially leaving it up to a chief, who’s there at their whim,” he says. “To me, it shows a fear of dealing with the legal issues in these cases.” Congressional Democrats are critical of the new policy and are joined by Senate Judiciary Committee Chairman Arlen Specter (R-PA), who is considering holding hearings on the Texas redistricting case. Senator Edward Kennedy (D-MA) says, “America deserves better than a civil rights division that puts the political agenda of those in power over the interests of the people its serves.” Attorney General Alberto Gonzales and other DOJ officials have disagreed with the criticism, and asserted that politics play no role in civil rights decisions. Assistant Attorney General William Moschella has recently written to Specter, criticizing the Post’s coverage and claiming that the department is aggressively enforcing a range of civil rights laws. “From fair housing opportunities, equal access to the ballot box, and criminal civil rights prosecutions to desegregation in America’s schools and protection of the rights of the disabled, the division continues its noble mission with vigor,” he wrote. [Washington Post, 12/10/2005]

Entity Tags: Edward M. (“Ted”) Kennedy, Alberto R. Gonzales, Civil Rights Division (DOJ), Washington Post, William E. Moschella, Jon Greenbaum, Eric W. Holland, US Department of Justice, Arlen Specter, John Tanner

Category Tags: Election, Voting Laws and Issues, Voter Fraud/Disenfranchisement, Voting Rights

In his weekly radio address, President Bush claims that the US always obtains court warrants before launching electronic surveillance efforts. “The Patriot Act is helping America defeat our enemies while safeguarding civil liberties for all our people,” he says. “The judicial branch has a strong oversight role in the application of the Patriot Act. Under the act, law enforcement officers need a federal judge’s permission to wiretap a foreign terrorist’s phone or search his property. Congress also oversees our use of the Patriot Act. Attorney General Gonzales delivers regular reports on the Patriot Act to the House and the Senate.” [White House, 12/10/2005] Bush has made similar claims in the recent past (see April 19-20, 2004, June 9, 2005, and April 19-20, 2004). Former AT&T senior technician Mark Klein (see July 7, 2009 and May 2004), who helped install the equipment used by the National Security Agency (NSA) and his firm to intercept foreign and domestic Internet communications (see January 16, 2004), will later say that Bush’s insistence that the administration gets court orders before wiretapping communications is false. AT&T, on behalf of the NSA, was monitoring “billions of messages a second,” Klein will write, all without court orders. [Klein, 2009, pp. 47-48]

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

Category Tags: Impositions on Rights and Freedoms, Privacy, NSA Wiretapping / Stellar Wind

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

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

Timeline Tags: Torture of US Captives

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

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

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

Category Tags: NSA Wiretapping / Stellar Wind, Media Involvement and Responses

The Bush administration relents in its opposition to the Detainee Treatment Act (DTA), which would ban torture of prisoners by US personnel (see July 24, 2005 and After and December 30, 2005). President Bush meets with the bill’s primary sponsor, Senator John McCain (R-AZ), and John Warner (R-VA), chairman of the Senate Armed Service Committee, in a press conference to praise the bill. McCain says after the conference that the bill “is a done deal.” The bill still faces some opposition from Congressional Republicans such as House Armed Services Committee chairman Duncan Hunter (R-CA), who says he won’t vote for the bill unless it can be amended to ensure that the nation’s ability to gather intelligence is not diminished. Both the House and Senate have voted by veto-proof margins to accept the bill, which is actually an amendment to a defense appropriations bill. McCain says after the conference with Bush and Warner, “We’ve sent a message to the world that the United States is not like the terrorists. We have no grief for them, but what we are is a nation that upholds values and standards of behavior and treatment of all people, no matter how evil or bad they are.” Bush says the ban “is to make it clear to the world that this government does not torture and that we adhere to the international convention of torture, whether it be here at home or abroad.” McCain has been the target of months of vilification and opposition from the White House over the bill, which argued that the bill would limit Bush’s authority to protect the US from terrorist attacks, and that the bill is unnecessary because US officials do not torture. [CNN, 12/15/2005]
Loopholes - But the bill contains key loopholes that some experts believe significantly waters down the bill’s impact. Author Alfred McCoy, an expert on the CIA, notes that the bill as revised by White House officials does not give any real specifics. Attorney General Alberto Gonzales will assert that the only restrictions on prisoner interrogations are the ban on “severe” psychological or physical pain, “the same linguistic legerdemain that had allowed the administration to start torturing back in 2002” (see August 1, 2002). Gonzales also implies that practices such as waterboarding are not prohibited. [TomDispatch (.com), 2/8/2006]
Legal Cover - A provision of the bill inserted after negotiation with White House officials says that CIA and military officials accused of torture can claim legal protection by arguing that they were simply following the orders of their superiors, or they have a reasonable belief that they are carrying out their superiors’ wishes. McCain dropped the original provision that all military personnel must follow the stringent guidelines for interrogation laid out in the Army Field Manual; the bill now follows the Uniform Code of Military Justice, which says that anyone accused of violating interrogation rules can defend themselves if a “reasonable” person could conclude they were following a lawful order. McCain resisted pressure from the White House to include language that would afford interrogators accused of torture protection from civil or criminal lawsuits. [CNN, 12/15/2005; Associated Press, 12/15/2005]
Controversial Amendment - Perhaps even more troubling is an amendment to the bill that would essentially strip the judiciary’s ability to enforce the ban. The amendment, originally crafted by senators Lindsey Graham (R-SC) and Jon Kyl (R-AZ) and added to by Carl Levin (D-MI), denies Guantanamo detainees the right to bring legal action against US personnel who torture or abuse them—effectively denying them the fundamental legal right of habeas corpus. It also gives the Defense Department the implicit ability to consider evidence obtained through torture or inhumane treatment in assessing detainees’ status. Human Rights Watch (HRW) says that the DTA marks the first time in history that Congress would allow the use of evidence obtained through torture. HRW’s Tom Malinowski says, “With the McCain amendment, Congress has clearly said that anyone who authorizes or engages in cruel techniques like water boarding is violating the law. But the Graham-Levin amendment leaves Guantanamo detainees no legal recourse if they are, in fact, tortured or mistreated. The treatment of Guantanamo Bay detainees will be shrouded in secrecy, placing detainees at risk for future abuse.… If the McCain law demonstrates to the world that the United States really opposes torture, the Graham-Levin amendment risks telling the world the opposite.” [Human Rights Watch, 12/16/2005] Geoffrey Corn, a retired Army lieutenant colonel and Judge Advocate General lawyer, agrees. In January 2006, he will write that the “recent compromise inclusion of an ‘obedience to orders’ defense… has effectively undermined the goal Senator John McCain fought so long to achieve. Instead of sending a clear message to US forces that cruel, inhumane, or degrading treatment of detainees is never permissible, the compromise has validated President Bush’s belief that the necessities of war provide the ultimate ‘trump card’ to justify ‘whatever it takes’ in the war on terror.” [Jurist, 1/6/2006]

Entity Tags: Tom Malinowski, Lindsey Graham, US Department of Defense, Jon Kyl, Uniform Code of Military Justice, John McCain, John W. Warner, Geoffrey Corn, Alberto R. Gonzales, Bush administration (43), Alfred McCoy, Carl Levin, Detainee Treatment Act, Central Intelligence Agency, Human Rights Watch, Duncan Hunter

Timeline Tags: Torture of US Captives

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

Retired AT&T technician Mark Klein (see July 7, 2009 and May 2004) is gladdened to see the New York Times’s reports on the Bush administration’s warrantless wiretapping program (see December 15, 2005 and December 24, 2005). Klein has known since 2002 that the National Security Agency (NSA) has been using AT&T facilities to illegally eavesdrop on American citizens’ telephone and Internet communications (see Late 2002, January 2003, October 2003, Fall 2003, Late 2003, Late 2003, and January 16, 2004). He has considered going public with his knowledge, but has so far refrained because, he will later explain, “[t]he atmosphere was still kind of scary.” He will later say of the Times report, “They seemed to be talking mainly about phone calls, but anyway, it was revealed that there was an illegal spying program going on, and I thought, ‘Ah, this would probably blow the whole thing,’ and I thought it would all come out, and I don’t need to do anything.” However, Klein is horrified to see the government’s response. He will say: “[W]hat came out was the government turned around and went on the offensive against anybody who would dare to criticize them.… They’re issuing threats: Anyone who has a security clearance and spills any beans here is in for prosecution. That was deliberately said by them several times on TV to intimidate anybody in, say, the NSA who knew the truth, intimidate them so they would not come forward. So that silenced anybody in the intelligence community” (see December 17, 2005, December 19, 2005, December 21, 2005, December 30, 2005, and January 25-26, 2006). In his 2009 book Wiring Up the Big Brother Machine… and Fighting It, Klein will write that the Justice Department’s December 2005 investigation into the leak of classified information that led to the Times reports (see December 30, 2005) “was obviously intended to silence Congress, the media, and any potential whistleblowers inside the NSA who might have been tempted to come forward. The administration was manipulating the secrecy oath which people had taken to get security clearances, turning it into a weapon to silence anyone who had knowledge of wrongdoing.” Klein decides that he must come forward. He never received a security clearance, so he cannot be threatened with legal action over violating such clearance. He will explain: “All I had and still have are some company documents and some knowledge of some illicit NSA installation at AT&T’s network. And if anybody—say, Congress—was willing to follow the trail, I can give them all the names they want, and they can go up the hierarchy of AT&T all the way up to Dave Dorman, who was the president back then, and they can go even higher, and they can find out who is responsible for this, and they can ask them under oath and subpoena what the heck is going on here, if they had the will to do it.” Klein later admits to some hesitation and trepidation at undertaking such an effort, and will cite the “McCarthyite” atmosphere he says the government has created in which “dissidents become the target of a lynch mob searching for ‘terrorists.’” But, he will write, he believes the Times stories are “a political indication of a shift at the top of government, a split of some kind which could provide an opening.… Maybe they would publish my material, I thought, and that would provide some protection.” By December 31, Klein writes a preface to his memo from almost two years before (see January 16, 2004 and December 31, 2005). [PBS Frontline, 5/15/2007; Klein, 2009, pp. 52-53]

Entity Tags: New York Times, AT&T, Bush administration (43), National Security Agency, US Department of Justice, Mark Klein

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

The House of Representatives overwhelmingly approves the Senate’s amendment to a defense appropriations bill that outlaws torture (see October 1, 2005 and November 1-4, 2005), 308-122, after the Republican House leadership stops blocking a vote on the amendment (see October 1, 2005). The next day, President Bush meets privately with the author of the amendment, Senator John McCain (R-AZ). In a surprising reversal of the White House’s opposition to the bill, Bush now says he supports the amendment—or will if McCain makes some changes. Bush asks McCain to alter the language of the amendment so that US intelligence officers, if charged with war crimes due to their abuse of a prisoner, can offer a defense that a “reasonable” person could conclude they were following a lawful order. McCain agrees. Bush and McCain hold a joint press conference to announce the White House’s support for the amendment (see December 15, 2005). The press bills the agreement between Bush and McCain as a serious setback for Vice President Cheney, the leader of the White House’s opposition to the bill, with the New York Times calling the vote a “stinging defeat” for Bush and a “particularly significant setback for Vice President Dick Cheney, who since July has led the administration’s fight to defeat the amendment or at least exempt the Central Intelligence Agency from its provisions” (see October 20, 2005). [Dubose and Bernstein, 2006, pp. 196; Savage, 2007, pp. 223]

Entity Tags: Richard (“Dick”) Cheney, John McCain, George W. Bush

Timeline Tags: Torture of US Captives

Category Tags: Expansion of Presidential Power, Other Legal Changes, Gov't Violations of Prisoner Rights

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

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

Category Tags: NSA Wiretapping / Stellar Wind, Media Involvement and Responses

A number of senators from both political parties lash out at President Bush’s acknowledgment that he reauthorized the NSA’s warrantless wiretapping program over thirty times since its inception in late 2001 (see December 17, 2005). Senator Russ Feingold (D-WI) says that such warrantless wiretapping is outside of the law. “He’s trying to claim somehow that the authorization for the Afghanistan attack after 9/11 permitted this, and that’s just absurd,” Feingold says. “There’s not a single senator or member of Congress who thought we were authorizing wiretaps.… If he needs a wiretap, the authority is already there—the [Foreign] Intelligence Surveillance Act (FISA). They can ask for a warrant to do that, and even if there’s an emergency situation, they can go for 72 hours as long as they give notice at the end of 72 hours.” Senator Arlen Specter (R-PA) says the behavior of the White House and NSA “can’t be condoned.” Specter, the chairman of the Senate Judiciary Committee, says his committee will immediately begin investigating the matter. Senator Charles Schumer (D-NY) says the report swayed his decision on the reauthorization of the USA Patriot Act. “Today’s revelation that the government listened in on thousands of phone conversations without getting a warrant is shocking and has greatly influenced my vote,” he says. [CNN, 12/16/2005]

Entity Tags: Charles Schumer, Arlen Specter, Foreign Intelligence Surveillance Act, George W. Bush, Russell D. Feingold, National Security Agency, USA Patriot Act, Senate Judiciary Committee

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

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

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

Category Tags: Patriot Act, Privacy, Impositions on Rights and Freedoms, NSA Wiretapping / Stellar Wind, Media Involvement and Responses, Media Freedoms

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

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

Category Tags: NSA Wiretapping / Stellar Wind

Newly released documents indicate that several FBI investigations have targeted—albeit peripherally—activist groups working on issues such as animal cruelty, environment, and poverty relief. One document reveals an FBI plan to monitor a “Vegan Community Project.” Another document speaks of the Catholic Workers group’s “semi-communistic ideology.” Other groups monitored include PETA (People for the Ethical Treatment of Animals) and Greenpeace. An American Civil Liberties Union (ACLU) official says, “You look at these documents and you think, wow, we have really returned to the days of J. Edgar Hoover, when you see in FBI files that they’re talking about a group like the Catholic Workers league as having a communist ideology.” A Greenpeace official says, “The fact that we’re even mentioned in the FBI files in connection with terrorism is really troubling.” [New York Times, 12/20/2005]

Entity Tags: People for the Ethical Treatment of Animals, Federal Bureau of Investigation, Catholic Workers, Greenpeace

Timeline Tags: Complete 911 Timeline

Category Tags: Impositions on Rights and Freedoms

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

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

Category Tags: NSA Wiretapping / Stellar Wind

During a press conference, President Bush is asked if he will order an investigation into the leak that revealed the NSA’s domestic surveillance program (see December 15, 2005). Bush says he has not directly ordered an investigation, presuming the Justice Department is handling the matter, but he calls the leak “a shameful act for someone to disclose this very important program in a time of war.” And he implies that the leak, and the New York Times’s decision to print the resulting article, is treason: “The fact that we’re discussing this program is helping the enemy.… But it is a shameful act by somebody who has got secrets of the United States government and feels like they need to disclose them publicly.” When asked why he “skip[ped] the basic safeguards of asking courts for permission for the intercepts,” he answers: “[R]ight after September the 11th, I knew we were fighting a different kind of war. And so I asked people in my administration to analyze how best for me and our government to do the job people expect us to do, which is to detect and prevent a possible attack. That’s what the American people want. We looked at the possible scenarios. And the people responsible for helping us protect and defend came forth with the current program, because it enables us to move faster and quicker. And that’s important. We’ve got to be fast on our feet, quick to detect and prevent. We use FISA still—you’re referring to the FISA court in your question—of course, we use FISAs. But FISA is for long-term monitoring. What is needed in order to protect the American people is the ability to move quickly to detect. Now, having suggested this idea, I then, obviously, went to the question, is it legal to do so? I am—I swore to uphold the laws. Do I have the legal authority to do this? And the answer is, absolutely.… [T]he legal authority is derived from the Constitution, as well as the authorization of force by the United States Congress” (see September 14-18, 2001). A reporter asks why “has your administration not sought to get changes in the law instead of bypassing it, as some of your critics have said?” Bush responds by reiterating the point that the program is “limited in nature to those that are known al-Qaeda ties and/or affiliates.” He then reiterates another point: he believes he has the authority to bypass the law. He “share[s] the same concerns” about civil liberties that members of Congress have expressed (see December 16, 2005).” However, his reassurances that domestic calls are not being monitored are not absolute. “[I]f you’re calling from Houston to [Los Angeles], that call is not monitored. And if there was ever any need to monitor, there would be a process to do that.” He is asked: “You say you have an obligation to protect us. Then why not monitor those calls between Houston and LA? If the threat is so great, and you use the same logic, why not monitor those calls? Americans thought they weren’t being spied on in calls overseas—why not within the country, if the threat is so great?” Bush replies: “We will, under current law, if we have to. We will monitor those calls. And that’s why there is a FISA law. We will apply for the right to do so. And there’s a difference—let me finish—there is a difference between detecting so we can prevent, and monitoring. And it’s important to know the distinction between the two.” He concludes, “I just want to assure the American people that, one, I’ve got the authority to do this; two, it is a necessary part of my job to protect you; and, three, we’re guarding your civil liberties.” [White House, 12/19/2005]

Entity Tags: US Department of Justice, George W. Bush, New York Times, National Security Agency

Category Tags: Impositions on Rights and Freedoms, Government Acting in Secret, NSA Wiretapping / Stellar Wind

While on a trip to the Middle East, Vice President Dick Cheney gives a frank outline of his view of the president’s powers, and refers to an Iran-Contra document as support for this view. In response to a question about his perspective as a veteran of the Ford administration, which the reporter says “arguably was the point at which presidential power had reached its absolute nadir,” Cheney replies, “Yes, I do have the view that over the years there had been an erosion of presidential power and authority, that it’s reflected in a number of developments.” Cheney lists several examples, including the War Powers Act, Congressional budget controls, the limitations placed on his own 2001 Energy Task Force, and numerous steps to limit the president’s power taken after Watergate and the Vietnam War. Cheney then advises the reporter: “If you want reference to an obscure text, go look at the minority views that were filed with the Iran-Contra Committee; the Iran Contra Report in about 1987 (see November 16-17, 1987). Nobody has ever read them, but we—part of the argument in Iran Contra was whether or not the president had the authority to do what was done in the Reagan years. And those of us in the minority wrote minority views, but they were actually authored by a guy working for me, for my staff, that I think are very good in laying out a robust view of the president’s prerogatives with respect to the conduct of especially foreign policy and national security matters. It will give you a much broader perspective.… I believe in a strong, robust executive authority. And I think the world we live in demands it. And to some extent, that we have an obligation as an administration to pass on the offices we hold to our successors in as good a shape as we found them.… I do think that to some extent now, we’ve been able to restore the legitimate authority of the presidency.” [White House, 12/20/2005]
Nixon Lawyer: Cheney 'Twisting History' - However, former Nixon White House counsel John Dean will call the Iran-Contra document to which Cheney refers “replete with factual and other errors,” a wholesale “twist[ing] of history” that nevertheless “sought to establish extreme standards for presidential powers vis-a-vis Congress.” According to Dean, Cheney believes now, as he did then, “that the Congress—other than writing checks to finance the president’s policies—has no real role whatsoever.” [Dean, 2007, pp. 86-88]
Former Republican Staffer: 'Chasm of Difference' between Then, Now - Former Justice Department lawyer Bruce Fein, who helped Cheney write the minority report and has since parted ways with his old boss, will say there is “a chasm of difference” between Iran-Contra and the secrecy of the Bush-Cheney administration. “Then it was part of the democratic process,” Fein will say in July 2006. “The way you debate the process, it allows for self-correction. This is the essence, the lifeblood of democracy.” Then, the Reagan administration was forced by a Democratic majority in Congress to disclose at least some details of its inner workings. There is no such disclosure today, Fein says. “They think that democracy ends if you win elections.” [Dubose and Bernstein, 2006, pp. 81]

Entity Tags: Richard (“Dick”) Cheney, Ford administration, John Dean, Reagan administration

Timeline Tags: Iran-Contra Affair

Category Tags: Impositions on Rights and Freedoms

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

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

Category Tags: NSA Wiretapping / Stellar Wind, Media Involvement and Responses

Reporter Arlene Getz equates President Bush’s attempt at controlling the media exposure of the warrantless wiretapping program (see December 15, 2005 and December 6, 2005) to similar media manipulation programs undertaken by the white apartheid regime in South Africa during the 1980s, and the acceptance of the controlled media by some South African citizens. Getz, who reported extensively on South Africa’s government, writes: “For anyone who has lived under an authoritarian regime, phone tapping—or at least the threat of it—is always a given. But US citizens have always been lucky enough to believe themselves protected from such government intrusion. So why have they reacted so insipidly to yet another post-9/11 erosion of US civil liberties?” She extends the comparison: “While Bush uses the rhetoric of ‘evildoers’ and the ‘global war on terror,’ Pretoria talked of ‘total onslaught.’ This was the catchphrase of P. W. Botha, South Africa’s head of state from 1978 to 1989.…Botha liked to tell South Africans that the country was under ‘total onslaught’ from forces both within and without, and that this global assault was his rationale for allowing opponents to be jailed, beaten or killed. Likewise, the Bush administration has adopted the argument that anything is justified in the name of national security.” [Newsweek, 12/21/2005]

Entity Tags: National Security Agency, Arlene Getz, Bush administration (43), P. W. Botha, George W. Bush

Timeline Tags: Domestic Propaganda

Category Tags: Privacy, Impositions on Rights and Freedoms, Government Acting in Secret, Government Classification, NSA Wiretapping / Stellar Wind, Media Involvement and Responses

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