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US Civil Liberties

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

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

Timeline Tags: Torture of US Captives

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

The cover of the current National Review, labeling Tim Johnson an ‘Invalid Senator’ and claiming to tell ‘How the Democrats Stole a Senate Seat.’ The allegations behind the cover story have already been proven false by the time the story is published on the Internet.The cover of the current National Review, labeling Tim Johnson an ‘Invalid Senator’ and claiming to tell ‘How the Democrats Stole a Senate Seat.’ The allegations behind the cover story have already been proven false by the time the story is published on the Internet. [Source: Free Republic (.com)]The National Review’s Byron York publishes a detailed article alleging that, in November 2002, Democrats committed massive voter fraud in South Dakota in order to ensure Senator Tim Johnson (D-SD) won re-election against opponent John Thune (R-SD). York accuses South Dakota Democrats of using Native American votes to “throw” the election. York reports that Democrats “deployed” 10,000 lawyers nationwide, including the contingent sent to Mission, to ensure that voting rights would be protected. In South Dakota, he writes, “compelling evidence” based on testimony from South Dakota poll workers shows that some of the Democratic lawyers “engaged in illegal electioneering, pressured poll workers to accept questionable ballots, and forced polling places in a heavily Democratic area to stay open for an hour past their previously-announced closing time. In addition, the testimony contains evidence of people being allowed to vote with little or no identification, of incorrectly marked ballots being counted as Democratic votes, of absentee ballots being counted without proper signatures, and, most serious of all, of voters who were paid to cast their ballots for Senator Johnson.” The allegations, if true, would constitute voter fraud on a massive scale. York says the testimony is collected “in more than 40 affidavits collected by Republicans in the days after the election and obtained by National Review,” and supplemented by “interviews with state and local officials.” York alleges that “hundreds of votes” for Johnson “were the product of polling-place misconduct.” Johnson won the election by a few hundred votes. “Had those votes not been added to his total, it seems likely that the senator, who won by just 524 votes, would instead have lost, and John Thune would today be South Dakota’s senator-elect.” [National Review, 12/19/2002]
Allegations False, Says South Dakota Attorney General - South Dakota Attorney General Mark Barnett, a Republican, has said the most serious of the affidavits are either “perjury or forgery,” and says the allegations of illegality are “flat[ly] false.” Barnett said most of the accusations were not illegal, but simply evidence of effective get-out-the-vote (GOTV) efforts by Democrats (see December 10, 2002). And liberal news blogger Joshua Micah Marshall wrote that the only verifiable crimes may have been committed by Republicans who fraudulently concocted bogus allegations of voter fraud (see December 16, 2002). [Rapid City Journal, 12/10/2002; Talking Points Memo, 12/16/2002]
Illegal Operations inside Polling Places? - York recounts accusations from an election board member, Noma Sazama, in Mission, South Dakota, that “out-of-town” Democratic poll watchers tried to “intimidate” her as they coordinated GOTV efforts from a Mission polling place. A Republican poll watcher in Todd County, Ed Assman, recounts a similar story to Sazama’s, of Democratic lawyers from out of town setting up shop inside a polling place, this one in Parmalee; a third witness who refuses to be identified says he saw Democratic poll workers running carpools “out of the polling place.” Holding such operations inside a polling place is illegal under South Dakota law, and South Dakota officials admitted after the election that such operations may have indeed taken place. State election supervisor Chris Nelson told a Todd County reporter, “That type of office operation to conduct a partisan campaign operation should not have been happening at the polling place.”
Allegations of Paying Voters - Assman says he personally watched Democratic poll watchers give cash to van drivers who were transporting voters back and forth from the polls. Another witness, who refuses to be identified, tells York that the watchers gave out “wad[s] of twenties.” That same witness says a Democratic poll watcher later explained the money was for gas. A Republican poll watcher in Mission makes similar allegations. York says that the stories “have raised suspicions that Democrats were perhaps buying more than gasoline,” suspicions that are bolstered by three witnesses in Todd County who say that van drivers offered them cash to vote for Johnson. All three affidavits say that the witnesses were offered $10 to vote, presumably for Johnson. York writes: “None [of the affidavits] explicitly says the voters accepted the money—this would be a confession of a crime—but there is little doubt that they did. And even if they did not, simply offering money for a vote is a crime under South Dakota law, which forbids anyone ‘to pay, lend, contribute, or offer… any money or other valuable consideration’ to anyone for a vote.” In an update to the article, York notes that Barnett has found two of the three affidavits and considers the third “suspect.” Barnett believes the affidavits may be the work of a single man on the Rosebud Indian Reservation, though that man, a registered Democrat, says he knows nothing of the affidavits. The man has told a Sioux Falls reporter that “people on the streets” told him that “they” were paying people with $10 bills or cigarettes to go vote, “and if you couldn’t get there, they would give you a ride.”
Time Discrepancy - Todd County auditor Kathleen Flakus twice published notices in the local press that polls would be open on Election Day, November 2, from 7 a.m. to 7 p.m. Central Standard Time (CST). According to government maps, Todd County is west of the time-zone line that splits South Dakota, placing the county in Mountain Standard Time (MST). The Todd County populace routinely operates on Central time. On Election Day, a Democratic election official named Iver Crow Eagle showed up almost an hour late to one Todd County polling place, forcing that polling place to alter its hours from 7 a.m. - 7 p.m. to 8 a.m. - 8 p.m. The time change is allowable under state law. However, Democratic poll watchers asked that all the Todd County precincts be allowed to stay open until 8 p.m. Todd County is heavily Democratic, York says, providing a possible motive for the request. The Democratic lawyers also asked that precincts in Mellette County be allowed to stay open until 8 p.m.; like Todd, Mellette is technically in Mountain time but the populace keeps Central time. The lawyers argued that the polls should stay open until 7 p.m. MST, which is 8 p.m. CST. York says Flakus and the “[l]ocal election officials were flabbergasted” by the request. However, state officials found that the Democrats were legally correct, and the precincts stayed open until 8 p.m. CST. Republican officials attempted to force the polls to close at 7 p.m. CST, York reports, calling the extra hour an “unconstitutional” dilution of other counties’ votes, whose citizens cast their votes “during proper hours.” The Republicans also asked that the ballots cast after 7 p.m. CST be segregated from the other ballots in case a judge ruled in favor of the original closing time. A state circuit judge dismissed the requests without comment, and the polls stayed open an extra hour in the two counties. Witnesses later tell York that they saw well over a hundred voters cast their votes during the extra hour. “Given the voting patterns of the area, it’s likely that nearly all of those extra votes were Democratic,” York writes. “[I]t seems reasonable to estimate that the extended voting hours gave Tim Johnson an additional 200 or so votes” in Todd County alone.
Voter Registration Fraud? - Democrats from the state and national party worked to register thousands of new voters during the run-up to the November election, specifically working on Indian reservations. The effort secured some 17,000 new voters, York says. However, he cites a news report that alleged “bounty hunters” were paid ”$3 per head” to register new voters, which he calls “an invitation to fraud.” One Democratic volunteer, Becky Red Earth Villeda, made almost $13,000 from registering new voters. Before the election, state prosecutors said that 15 “phony ballots,” in York’s words, were “associated with Villeda.” The prosecutors were investigating 1,700 others and were considering filing charges against her. South Dakota Deputy Attorney General Larry Long told reporters: “It appears that we were able to get her stopped before she actually cast any fraudulent ballots. But it’s conceivable that she was able to get ballots cast that we don’t know about.” York says that at least three absentee ballot requests—not ballots—from the Cheyenne River Indian Reservation, in Dewey County, may have also been fraudulent. A witness at a Dewey County polling place later alleges that he saw “15 or 20” people come to vote, only to find that records indicated they had requested absentee ballots when they said they had not made such requests. One of those voters told election officials that the signature on the ballot request was not his. At another precinct, another witness says the same thing happened with ten voters, and a third witness says a similar occurrence happened to seven voters at another Dewey County precinct. York says it is “reasonable” to presume that many other occurrences took place, and many improper absentee ballots may have been cast. Sazama tells York that she saw ballots cast at her Todd County precinct that “didn’t look right.” She says she saw several signatures that appeared to match the voters’ signatures, but they “all looked like they had been signed by the same person.” Those votes were counted. York says that along with the “suspicious” absentee ballot issues, “there were widespread problems with voter identification,” including a number of instances where voters presented themselves to an election judge, found that their given names were not listed, and were given the opportunity to vote under what a Republican witness in Mellette County calls “alternate names.” Another unnamed observer says similar instances happened at a polling place in Shannon County, home of the Pine Ridge Indian Reservation. And Assman says he saw similar instances in Todd County. York says that Democratic lawyers at polling places “pressured election officials to allow people to vote, whatever the problem with names,” and quotes an unnamed Republican election official as saying the lawyers “intimidated” local officials.
Vote Surge Gives Johnson the Victory, Votes May Be 'Improper' - York writes that the voting improprieties may be the reason why Thune maintained a narrow lead in vote counts throughout the evening of November 2, until late in the vote counting, when Thune led by almost 1,000 votes with only six precincts remaining. Five precincts in Shannon County gave Johnson the victory, York says, coming in at an “unusual” 91.4 percent of votes cast going to Johnson. Shannon County is an “overwhelmingly Democratic area,” York concedes, but alleges that many of the Shannon County ballots had “significant problems” that caused them to be rejected by the optical scan machines counting the votes and processed by a resolution committee. The problems with the optically scanned votes caused the Shannon County votes to be among the last reported. Later, a Republican member of the resolution committee named Lee Linehan says she may have inadvertently let “improper” votes go through, due to her exhaustion and unfamiliarity with the process. York implies that her Democratic committee partner, whom he only identifies as “a lawyer,” may have influenced her to send ballots through regardless of their possible improprieties. Linehan tells York, “I believe the race would have been much closer had we paid more attention.”
Conclusion - York alleges that, in conclusion, Johnson and “an army” of Democratic lawyers improperly threw the election for Johnson. “[T]he accounts of dozens of eyewitnesses at the polling places,” he writes, suggests “the electoral system was not fully trustworthy and in fact failed to stop serious violations of election laws committed by Johnson’s supporters.” The small number of votes in one county after another—200 in Todd, 250 in Shannon, 100 in Dewey, and around 200 in other counties—may have given Johnson the edge he needed to claim a narrow victory. York writes, “[I]t seems reasonable to conclude that, had Democratic misconduct not occurred in those counties, John Thune would have won.” Thune chose not to ask for a recount, as was his right under South Dakota law. York explains that Thune did not wish to put the state’s voters under what Thune called a “long, drawn-out, painful, and protracted struggle over 524 votes.” York goes on to note that Thune dropped broad hints that he felt improprieties cost him the election. Some of the problems were most likely “homegrown,” York says, and cites what he calls previous “allegations of voting irregularities on some of the reservations, particularly in tribal elections.” However, the improprieties that he says cost Thune the election “went far beyond local fraud, and are instead attributable to the team of party operatives sent to South Dakota from the DNC’s headquarters in Washington.” York says the local Republican officials should have been prepared for just such problems, citing Democratic National Committee (DNC) chairman Terry McAuliffe’s promise that lawyers would be at polls in every state, and implying that McAuliffe and the DNC concocted a scheme to steal elections throughout the nation through the auspices of this “army” of lawyers. “[T]he evidence from South Dakota suggests that some of them were on the lookout to commit voter fraud,” he writes, “to steal the election under the guise of preventing it from being stolen.” York concludes that the Democrats’ success in South Dakota will only encourage them to try even harder to steal elections in future elections. [National Review, 12/19/2002]
Purged - The National Review will later purge the York article from its database.

Entity Tags: Ed Assman, County of Shannon (South Dakota), County of Mellette (South Dakota), County of Dewey (South Dakota), Chris Nelson, Byron York, Becky Red Earth Villeda, Democratic National Committee, Tim Johnson, Noma Sazama, County of Todd (South Dakota), Mark Barnett, Lee Linehan, Larry Long, National Review, Iver Crow Eagle, Kathleen Flakus, Terry McAuliffe, Joshua Micah Marshall, John Thune

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

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

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

Timeline Tags: Torture of US Captives

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

An internal audit shows that the cutting-edge electronic surveillance system, DCSNet (see 1997-August 2007 and After), is unacceptably vulnerable to hacking and exploitation. The audit finds numerous security vulnerabilities, including the allowing of multiple and shared logins, a lack of firewall and antivirus software, and Windows-based vulnerabilities surrounding the operating system’s administrative functions. Steven Bellovin, a computer science professor and surveillance expert, says the risks from insiders are particularly worrisome. “The underlying problem isn’t so much the weaknesses here, as the FBI attitude towards security,” he says. The FBI assumes “the threat is from the outside, not the inside,” and believes that “to the extent that inside threats exist, they can be controlled by process rather than technology.” He considers the entire system at risk both from insiders and hackers from outside. “Any time something is tappable there is a risk,” Bellovin says. “I’m not saying, ‘Don’t do wiretaps,’ but when you start designing a system to be wiretappable, you start to create a new vulnerability. A wiretap is, by definition, a vulnerability from the point of the third party. The question is, can you control it?” [Wired News, 8/29/2007]

Entity Tags: Digital Collection System, Steven Bellovin, Federal Bureau of Investigation

Category Tags: Privacy, Impositions on Rights and Freedoms, Government Acting in Secret, Government Classification, Other Surveillance

Vice President Dick Cheney unilaterally exempts his office from Executive Order 12958, which established government-wide procedures for safeguarding classified national security information. [White House, 4/17/1995; Congress Committee On Oversight And Government Reform, 6/21/2007] It was amended by President Bush’s Executive Order 13292 (see March 25, 2003) to require that all agencies or “any other entity within the executive branch that comes into the possession of classified information” regularly report on their activities to the Information Security Oversight Office. [White House, 3/25/2003]
Vice President Not Part of Executive Branch, Cheney Argues - Cheney’s argument is that the vice president’s office is not part of the executive branch, and therefore has no legal obligation to report on its classification decisions as mandated by the order. Cheney justifies his position by noting that the vice president has a role in both the executive and legislative branches—the vice president is also president of the Senate—and the vice president’s office is not an agency. In May 2006, Cheney spokeswoman Lea Anne McBride will say, “This has been thoroughly reviewed and it’s been determined that the reporting requirement does not apply to [the office of the vice president], which has both legislative and executive functions.” (McBride does not say who reviewed the claim.)
Criticism - Others, such as government secrecy expert Steven Aftergood of the Federation of American Scientists, disagree. “It undermines oversight of the classification system and reveals a disdain for presidential authority,” he says. “It’s part of a larger picture of disrespect that this vice president has shown for the norms of oversight and accountability.” Around 80 agencies and entities must report annually to the National Archives; besides the Office of the Vice President, only the president’s Homeland Security Council and the president’s Foreign Intelligence Advisory Board have as yet failed to report on their activities. Aftergood will say: “Somebody made a decision that they don’t want to do what they used to do.… They have to explain why they stopped doing it, and they haven’t done that.” [ABC News, 6/21/2007] Law professor Garrett Epps observes: “The vice president is saying he doesn’t have to follow the orders of the president. That’s a very interesting proposition.” And Judicial Watch’s Paul Orfanedes says Cheney’s claim “seems most disingenuous.” [Cox News Service, 6/21/2007]
Retaliation For Attempt To Force Compliance - The National Archives’ Information Security Oversight Office (ISOO) will attempt in 2004 to conduct an inspection of Cheney’s offices pursuant to the executive order; Cheney’s staff will block the inspection, the first time since the ISOO’s inception in 1978 that one of its inspections has been thwarted. The National Archives will protest Cheney’s decision (see June 8, 2006 and January 9, 2007); Cheney will respond by attempting to abolish the ISOO (see May 29, 2007-June 7, 2007). [Henry A. Waxman, 6/21/2007 pdf file; ABC News, 6/21/2007] In June 2007, President Bush will announce that he never intended for either his or Cheney’s office to have to comply with the directive. [USA Today, 6/24/2007; Newsweek, 12/27/2007]
Issue Nothing More Than 'Kerfuffle' - In December 2007, Cheney will call the entire issue a “kerfuffle… is he or isn’t he; is he part of the executive branch, part of the legislative branch? And the answer really is, you’ve got a foot in both camps. I obviously work for the president. That’s why I’m sitting here in the West Wing of the White House. But I also have a role to play in the Congress as the president of the Senate. I actually get paid—that’s where my paycheck comes from, is the Senate. So I try to keep lines open to both sides of the Congress, both the House and the Senate.” [White House, 12/6/2007] However, Cheney sometimes asserts executive privilege, a function of the executive branch (see June 26, 2007 and June 29, 2007).

Entity Tags: Information Security Oversight Office, Richard (“Dick”) Cheney, National Archives and Records Administration, Homeland Security Advisory Council, Lea Anne McBride, George W. Bush, Federation of American Scientists (FAS), Foreign Intelligence Advisory Board, Garrett Epps, Steven Aftergood, Office of the Vice President, Paul Orfanedes

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

The NSA’s secret room in the AT&T switching center.The NSA’s secret room in the AT&T switching center. [Source: PBS]Veteran AT&T technician Mark Klein (see July 7, 2009) takes an informal tour of his company’s facility on San Francisco’s Folsom Street (see Late 2002), along with three other technicians from his Geary Street offices. The tour, Klein will later say, is to introduce the four technicians to the Folsom Street staff, “because they were obviously eventually planning to bring us over there.” Klein learns that the rumors of a “secret room” in the facility are true (see Fall 2002). The secret room is on the facility’s sixth floor and is being built to house some sort of equipment, but Klein is unsure exactly what that equipment might be. Klein and the others see the outer door of the secret room, and a workman working on the door “suddenly [began talking to Klein and his colleages in a] very low voice like he didn’t want to be overheard. He felt like this was something secret, you know, and he didn’t know much about it, and he was saying: ‘None of us can go in there. It’s all secret.’ This was not only an affront to the technicians; it was a violation of union rules, because they were obviously planning to install telecommunications equipment, which is supposed to be the jurisdiction of the union technicians. We had a contract. So the technicians were not only angry about this secret thing that they’re not let in on, but also the fact that there’s work there that they’re excluded from. And they were told nothing about it. So that was it.” Klein is further surprised to learn that only a single non-union technician (whom he only identifies as “Ski,” an AT&T “field support specialist” who has been granted a security clearance by the National Security Agency (NSA)), is allowed to work in the secure room. No union technicians are allowed in, even though the installation work being done is specifically contracted to the union workers. “The regular technician work force was not allowed in the room,” Klein will later state. Klein deduces that this secret room is the long-rumored NSA installation he has been hearing about. Moreover, he notes with some alarm that the room is next door to the 4ESS phone switch, “the traditional workhorse used for AT&T long-distance calls.” Klein will write, “Now my mental alarm bells were ringing, but for the moment there was nothing to do but take some mental notes, particularly since it was not clear exactly what they [the NSA and AT&T] were doing.” [Wired News, 4/7/2006; Democracy Now!, 5/12/2006; PBS Frontline, 5/15/2007; Klein, 2009, pp. 26-28] Klein will explain that he chooses not to say anything about his concerns because he is “scared for several reasons, one being, well, this is obviously secret. This is obviously some federal government secret operation that they don’t want nosy people nosing around in, and if I started asking questions I could get into trouble. Furthermore, our jobs were in jeopardy anyway, because [we] were always getting wind that they were planning to close our previous office at Geary Street, and I didn’t need to give them an excuse to fire me. So I thought after thinking about it that the best thing to do is not to say anything and just watch it.” [PBS Frontline, 5/15/2007] He later learns that similar cabinets are being installed in AT&T centers in other cities, including Seattle, San Jose, Los Angeles, and San Diego (see Late 2003). [Wired News, 4/7/2006] The Folsom Street facility is apparently connected to a more central surveillance facility operated out of one of AT&T’s main command centers in Missouri (see Late 2002-Early 2003).

Entity Tags: Bush administration (43), AT&T, Electronic Frontier Foundation, Mark Klein, Terrorist Surveillance Program, “Ski” (AT&T field support specialist), National Security Agency

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

Alberto Mora, the Navy’s general counsel, learns to his dismay that the torturing and abuse of prisoners at Guantanamo Bay is continuing (see December 17-18, 2002), even after a meeting with the Pentagon’s chief counsel, William J. Haynes. Mora had hoped that Haynes would put a stop to the extreme techniques being used (see December 20, 2002). Mora has read an article in the Washington Post detailing allegations of CIA mistreatment of prisoners at Bagram Air Force Base in Afghanistan; the story notes that the director of Human Rights Watch, Kenneth Roth, believes that US officials who knew about such treatment could be charged with crimes under the doctrine of command responsibility. [Washington Post, 12/26/2002; New Yorker, 2/27/2006] The specific allegations detailed in the story closely parallel what Mora knows were authorized at Guantanamo Bay. Mora continues to argue against the intense interrogation techniques, and his arguments quickly reach the ears of top Pentagon officials such as Deputy Defense Secretary Paul Wolfowitz; Captain Jane Dalton, the legal adviser to the Joint Chiefs of Staff; Pentagon spokeswoman Victoria Clarke; and Defense Secretary Donald Rumsfeld, who had authorized harsh interrogation techniques at Guantanamo a month before (see December 2, 2002). [New Yorker, 2/27/2006]

Entity Tags: Victoria (“Torie”) Clarke, Kenneth Roth, Alberto Mora, Paul Wolfowitz, Central Intelligence Agency, Jane Dalton, Donald Rumsfeld, William J. Haynes

Timeline Tags: Torture of US Captives

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

Chief executive officers of telecommunications companies and financial institutions express reluctance to provide data about their customers to three government agencies, the CIA, FBI, and Department of Homeland Security. The CEOs have been providing telephone, Internet and financial records to the CIA and, through it, the NSA to support “black” intelligence operations for some time (see After July 11, 1997), but after 9/11 the FBI asks for the same information that the CIA is getting. Then, after it is established in late 2002, the Department of Homeland Security also wants the same information. The CEOs begin saying, “Look, we’ll do this once but not three times,” and prefer to give the information to the FBI, which has formal subpoenas. The dispute grows so serious that White House homeland security adviser Frances Townsend has to mediate and summons FBI Director Robert Mueller and acting CIA Director John McLauglin to the White House to hammer the issue out. After a series of meetings, they agree to each appoint a senior official to coordinate, ensuring companies are not bombarded with multiple requests. [Woodward, 2006, pp. 324-5]

Entity Tags: John E. McLaughlin, Robert S. Mueller III, Federal Bureau of Investigation, Central Intelligence Agency, Frances Townsend, US Department of Homeland Security

Timeline Tags: Complete 911 Timeline

Category Tags: Database Programs, NSA Wiretapping / Stellar Wind

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

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

Timeline Tags: Torture of US Captives

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

It is reported that 22 cities representing 3.5 million residents have passed resolutions criticizing the Patriot and Homeland Security Acts (see October 26, 2001). Another 70 cities have such resolutions in the works. [Associated Press, 1/12/2003] Many of the resolutions provide some legal justification for local authorities to resist cooperating in the federal war on terrorism when they deem civil liberties and Constitutional rights are being compromised. [New York Times, 12/23/2002]

Entity Tags: USA Patriot Act, Homeland Security Act

Category Tags: Patriot Act

Michael Ashcroft.Michael Ashcroft. [Source: Conservative Home Blogs.com]Former Drug Enforcement Administration analyst Jonathan Randel is sentenced to a year in prison on felony theft charges surrounding his passing of DEA information to Toby Follett, a London Times investigative reporter. Randel’s prosecution is unusual because he passed unclassified information to the reporter, and none of his actions threatened national security. The prosecutor of Randel’s case says flatly that Randel was taken to court to discourage other government employees from cooperating with the press. Additionally, there is wide speculation that Randel’s prosecution may have something to do with the target of Follett’s investigation, Lord Michael Ashcroft. Ashcroft (no relation to Attorney General John Ashcroft) was under investigation by the DEA because of his ownership of a bank in Belize that was a known outlet for laundered drug money. Randel provided Follett with information that was not classified, but was categorized as “sensitive.” Times editor Robert Thomson says that Randel’s prosecution is distressing because “[c]onfidential information is passed to journalists every day.” However, Justice Department prosecutor William Duffey, a former deputy independent counsel under Whitewater independent counsel Kenneth Starr, says that Randel’s prosecution was designed to warn other government workers of the dangers of cooperating with the media.
'Particularly Alarming' - Lucy Dalglish, head of the Reporters Committee for Freedom of the Press, says, “What is particularly alarming is that this is not classified information and is probably disclosable under the Freedom of Information Act. This is the kind of thing that journalists ask for every day.” She says that other, similar actions by other public employees have been addressed with reprimands and letters in their personnel files. “But jail?” she asks. Former Nixon White House counsel John Dean writes in 2004, “Clearly this was a warning aimed at potential whistleblowers in the federal bureaucracy, advising them to keep quiet, or risk jail.” [New York Times, 1/16/2003; Dean, 2004, pp. 67-69]
No Precedent - Neither Duffey nor anyone in the DEA can cite any other cases where the government has prosecuted an employee for leaking confidential but unclassified information. Lawyer Kevin Goldberg, legal counsel for the American Society of Newspaper Editors, says that such a prosecution is rare in the extreme. If such a broad standard were applied to other whistleblowers, then charges could well be brought against FBI agent Coleen Rowley, whose revelations of FBI mismanagement and obduracy before the 9/11 attacks earned her a citation as one of Time Magazine’s “Persons of the Year.” Journalism professor Catherine Manegold calls Randel’s prosecution “not too different from McCarthyism.… If we are confined to official, pre-vetted statements, that’s a terribly dangerous place to be.” [Fulton County Daily Report, 1/15/2003]
Protecting Lord Ashcroft - Dean will say that the Justice Department’s prosecution of Randel was extraordinary, writing that the Department “threw the book at him.” It filed a twenty-count indictment against Randel, including 16 separate charges for each time Randel used a DEA computer to locate information on Ashcroft, and characterizing each computer usage as a separate scheme to “defraud” the US government. If convicted of all charges and given the maximum possible sentence, Randel would have faced up to 580 years in prison—a prime reason, Dean believes, that Randel accepted a plea bargain to a single charge of felony theft. According to Dean, Randel strongly believes that the Justice Department prosecuted him to protect Ashcroft, a wealthy Conservative lord living in the United States. [Dean, 2004, pp. 67-69] According to his attorney, Steven Sadow, Randel thinks “Ashcroft was getting a free ride for crooked activities. That’s why he did what he did.” Ashcroft has filed a lawsuit for defamation of character against the Times over its charges that he was involved in drug trafficking and money laundering; the Times’s owner, Rupert Murdoch, settled the case by printing a front-page apology to Ashcroft (see December 8, 1999). [Fulton County Daily Report, 1/15/2003] Ashcroft is also being probed over his potentially illegal dealings with the US toy manufacturer Tyco, and is suspected of participating in racketeering, securities fraud, tax fraud, and/or falsification of records. [Dean, 2004, pp. 67-69]

Entity Tags: Robert Thomson, William Duffey, US Department of Justice, Steven Sadow, Reporters Committee for Freedom of the Press, Lucy Dalglish, London Times, American Society of Newspaper Editors, Catherine Manegold, Michael Ashcroft, Drug Enforcement Administration, Jonathan Randel, Kevin Goldberg, John Dean, Toby Follett

Category Tags: Impositions on Rights and Freedoms, Privacy, Government Classification

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

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

Timeline Tags: Torture of US Captives

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

Congress imposes some limitations on the Total Information Awareness program (see March 2002; November 9, 2002). Research and development of the program would have to halt within 90 days of enactment of the bill unless the Defense Department submits a detailed report about the program. The research can also continue if Bush certifies that the report cannot be provided. Congress also okays use of the program internationally, but it cannot be used inside the US unless Congress passes new legislation specifically authorizing such use. [New York Times, 1/24/2003; Los Angeles Times, 2/19/2003] However, a bill to completely stop the program has yet to pass. [Mercury News (San Jose), 1/17/2003; Los Angeles Times, 2/19/2003] Several days earlier, Senator Charles Grassley (R-IA) alleged that the Justice Department and FBI are more extensively exploring the use of the Total Information Awareness program than they have previously acknowledged. [Associated Press, 1/21/2003; Washington Post, 1/22/2003] Contracts worth tens of millions of dollars have been signed with private companies to develop pieces of the program. [Associated Press, 2/12/2003] Salon also reports that the program “has now advanced to the point where it’s much more than a mere ‘research project’.” [Salon, 1/29/2003]

Entity Tags: Total Information Awareness, US Congress, US Department of Defense

Category Tags: Database Programs

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

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

Timeline Tags: Torture of US Captives

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

Daniel Bogden, the US Attorney for Nevada (see November 2, 2001), undergoes an Evaluation and Review Staff (EARS) performance review undertaken by the Justice Department. Bogden does quite well. His evaluation states in part: “United States Attorney Bogden and his supervisory [staff] were well respected by the USAO [US Attorney’s] staff, the investigative and client agencies, and the judiciary.… The senior management team appropriately managed the department’s criminal and civil priority programs and initiatives.… Bogden was highly regarded by the federal judiciary, the law enforcement and civil client agencies, and the staff of the USAO. He was a capable leader of the USAO. He was actively involved in the day-to-day management of the USAO.” [US Department of Justice, Office of the Inspector General, 9/29/2008] The March 2006 evaluation of Bogden and his office indicates that the first performance review was conducted during the first week of March 2003, not February 2003. [US House of Representatives, Committee of the Judiciary, 4/13/2007 pdf file] In August 2003, Bogden will receive a summative of the EARS report from the Executive Office for US Attorneys. His office will score higher than average on the cumulative ratings, and Bogden will be praised for the work he does with the department’s anti-terrorism task force and his evident skill at managing his office. [US House of Representatives, Committee on the Judiciary, 5/21/2007]

Entity Tags: Daniel G. Bogden, Executive Office for US Attorneys (DOJ), US Department of Justice

Category Tags: 2006 US Attorney Firings

AT&T completes installing “splitter” equipment in its Folsom Street, San Francisco, facility (see January 2003), enabling the National Security Agency (NSA) to monitor a vast amount of domestic and international electronic communications over telephone and Internet connections. [Klein, 2009, pp. 34-35] Veteran AT&T technician Mark Klein (see July 7, 2009) later helps connect Internet circuitry to a splitting cabinet that leads into the secret room (see October 2003). In an affidavit, Klein will later state, “While doing my job, I learned that fiber optic cables from the secret room were tapping into the Worldnet (AT&T’s Internet service) circuits by splitting off a portion of the light signal.” The circuitry allows AT&T to divert traffic to and from its network from other domestic and international providers to the NSA monitoring equipment, meaning that even citizens who do not use AT&T as their provider can be monitored. [Wired News, 4/7/2006]

Entity Tags: Mark Klein, AT&T, National Security Agency

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

Steven Aftergood of the Federation of American Scientists says that he is not sure that Congress’s public termination of the Total Information Awareness (TIA) project (see January 23, 2003) was as real and outrage-driven as it seemed at the time. “The whole congressional action looks like a shell game,” Aftergood says. “There may be enough of a difference for them to claim TIA was terminated while for all practical purposes the identical work is continuing.” While Congress terminated TIA with visible indignation, it also quietly funded the “National Foreign Intelligence Program,” and never identified which intelligence agency would do the work—which was also kept from the public eye. Congress did say that none of the research would be used against US citizens. No one in Congress will discuss how many of Poindexter’s programs survived, but knowledgeable sources will confirm that some 18 data-mining programs known as Evidence Extraction and Link Discovery in Poindexter’s research were preserved after TIA’s termination. These programs may well include the sprawling data mining program known as Novel Intelligence from Massive Data (NIMD) (see After September 11, 2001), though this cannot be confirmed. Former TIA chief John Poindexter’s vision of the technology behind NIMD envisioned software that can quickly analyze “multiple petabytes” of data. A single petabyte would fill the Library of Congress space for 18 million books more than 50 times, or could hold 40 pages of text for each of the more than 6.2 billion humans on Earth. Poindexter and his colleagues envisioned the program as handling a petabyte or more of data a month. [Associated Press, 2/23/2004] Concerns about the privacy rights of US citizens being damaged by the program are rife. “If they were to stick to strictly military-related research and development, there is less of an issue, but these technologies have much broader social implications,” says Barbara Simons, a computer scientist who is past president of the Association of Computing Machinery, an organization that has expressed concerns about TIA. [New York Times, 5/21/2003] At least one Senator is uncomfortable with the apparent resurgence of TIA. Jay Rockefeller (D-WV) will write Vice President Dick Cheney in June 2003 after receiving a briefing on the various secret surveillance programs (see July 17, 2003). Rockefeller will write, “As I reflected on the meeting today, John Poindexter’s TIA project sprung to mind, exacerbating my concern regarding the direction the administration is moving with regard to security, technology, and surveillance.” [National Journal, 1/20/2006]

Entity Tags: Steven Aftergood, Richard (“Dick”) Cheney, Total Information Awareness, Novel Intelligence from Massive Data, John D. Rockefeller, John Poindexter, Barbara Simons, Federation of American Scientists (FAS), Foreign Intelligence Surveillance Act, Association of Computing Machinery

Category Tags: Privacy, Impositions on Rights and Freedoms, Government Acting in Secret, Government Classification, Database Programs, Other Surveillance

A Special Mission Unit (SMU) Task Force designated to leave Afghanistan and deploy to Iraq receives a copy of the SMU interrogation policy from Afghanistan that includes torture methods for use against detainees (see January 11, 2003). The SMU Task Force changes the letterhead and adopts the policy verbatim. [Huffington Post, 4/21/2009]

Timeline Tags: Torture of US Captives

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

US Attorney Kevin Ryan of the Northern District of California (see August 2, 2002) undergoes his first Evaluation and Review Staff (EARS) performance evaluation, as mandated by the Justice Department. The final report states that “the overall evaluation was positive,” and that Ryan is “dedicated to the effective management of the office and to the priorities of the attorney general.” The report calls him an effective leader, and says that the area “judiciary was favorably impressed with the new United States Attorney.” [US Department of Justice, Office of the Inspector General, 9/29/2008] A follow-up letter indicates that Ryan’s office received a slightly higher-than-average cumulative assessment score in comparison to US Attorneys’ offices nationwide. The office was singled out for success in implementing the Project Safe Neighborhoods (PSN) initiative, designed to reduce gun violence in districts, and its work in combating corporate fraud. [US House of Representatives, Committee on the Judiciary, 5/21/2007]

Entity Tags: US Department of Justice, Kevin J. Ryan

Category Tags: 2006 US Attorney Firings

Jay Bybee, the head of the Office of Legal Counsel (OLC) and the signatory on a number of memos authorizing torture and expanded presidential powers (see March 13, 2002 and August 1, 2002), is confirmed by the Senate to become a federal appeals court judge. The Senate Judiciary Committee scheduled Bybee’s confirmation hearing for the same day that Secretary of State Colin Powell was slated to give his presentation to the UN on Iraq’s weapons of mass destruction (see February 5, 2003); most of the committee’s Democrats choose to watch Powell’s presentation, thus only friendly Republican Senators are in the hearing. Bybee is confirmed easily. [Savage, 2007, pp. 182]

Entity Tags: Senate Judiciary Committee, Jay S. Bybee, Colin Powell, Office of Legal Counsel (DOJ)

Category Tags: Court Procedures and Verdicts, Other Legal Changes

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

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

Timeline Tags: Torture of US Captives

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

Republican lobbyist Jack Abramoff sends an email to White House aide Susan Ralston, a former Abramoff associate who now works in the White House Office of Political Affairs (OPA) under Karl Rove. Abramoff wants Ralston to tell Rove to covertly use his position in the White House to prevent a Louisiana Indian tribe from acquiring land for a casino. (The land acquisition would threaten the interests of an Abramoff client, a different Indian tribe that already has gaming establishments in the area.) Abramoff asks if Rove can give “some quiet message from the WH [White House] that this is absurd.” Ralston agrees, and Abramoff sends her a thank-you reply. But instead of sending the reply to Ralston’s private email account administered by the Republican National Committee (RNC) at sralston@georgewbush.com, he sends it to her official White House email account. The next day, Abramoff’s colleague Kevin Ring alerts Abramoff to the error. Ring writes, “She said it is better to not put this stuff in writing in their email system because it might actually limit what they can do to help us, especially since there could be lawsuits, etc.” Abramoff responds: “Dammit. It was sent to Susan on her rnc [Republican National Committee] pager and was not supposed to go into the WH system.” The email will be publicly revealed as part of a Congressional investigation into Abramoff’s criminal enterprises. In 2007, documents will connect this email exchange to thousands of other private emails sent to and from White House officials using the georgewbush.com, gwb43.com, rnchq.com, and other private email domains. Ralston is one of many White House officials to use these outside accounts to communicate with Abramoff and others. Federal law requires that all emails and other communications be preserved as part of the National Archives data storage, for future review. Using private email accounts such as those provided by the RNC, especially for official (and quasi-official) government business, is also a violation of the Presidential Records Law. In March 2007, the House Oversight Committee’s chairman, Henry Waxman (D-CA), will demand that the RNC preserve all White House emails “because of their potential relevance to Congressional investigations.… The email exchanges reviewed by the committee provide evidence that in some instances, White House officials were using the nongovernmental accounts specifically to avoid creating a record of the communications.” Steven Aftergood of the Federation of American Scientists will say that the use of the RNC email accounts also “shows how closely intertwined the White House is with its partisan allies. The fact that the White House and the RNC are working hand in hand and White House officials are using RNC emails is itself remarkable.” Aftergood recalls the Iran-Contra investigation, where incriminating White House emails were recovered even after officials believed they had been deleted. “People may have learned that lesson,” Aftergood will muse. Since the Iran-Contra investigation, both the first Bush administration and Clinton administration have had issues with suppressing and hiding emails. Steven Hensen, a past president of the Society of American Archivists, will say that the current Bush email practice “clearly looks like an attempt to conceal official business.” Mother Jones reporter Daniel Schulman will agree, writing that “it’s clear that others are taking pains to use alternate email accounts simply to keep their communications from becoming public record.” [Mother Jones, 3/30/2007; Los Angeles Times, 4/9/2007]

Entity Tags: Jack Abramoff, White House Office of Political Affairs, Bush administration (43), Henry A. Waxman, Steven Hensen, Susan Ralston, Daniel Schulman, Karl C. Rove, Kevin Ring, Steven Aftergood, Republican National Committee, National Archives and Records Administration

Category Tags: Government Acting in Secret

Jay Bybee, the head of the Justice Department’s Office of Legal Counsel (OLC), is stepping down to become a federal judge (see February 5, 2003). White House counsel Alberto Gonzales and Vice President Cheney’s lawyer, David Addington, want OLC lawyer John Yoo to take Bybee’s place. But Attorney General John Ashcroft, miffed at Yoo’s bureaucratic maneuvers to give the White House a direct connection into the department and cut Ashcroft out of the loop, refuses. Yoo resigns in the summer of 2003 and resumes his position as a law professor at the University of California at Berkeley. Instead, Ashcroft and the White House will choose Jack Goldsmith to head the OLC (see October 6, 2003). Goldsmith seems a perfect replacement for Yoo—the two had coauthored one Wall Street Journal op-ed that claimed treaties were not binding on the US, and another Journal op-ed claiming that President Bush had the right to unilaterally withdraw the US from the Anti-Ballistic Missile Treaty (see May 26, 1972). Goldsmith was also a supporter of the administration’s military commissions program, noting that the need for “swift justice” was transcendant. [Savage, 2007, pp. 182]

Entity Tags: Jay S. Bybee, Alberto R. Gonzales, Jack Goldsmith, John C. Yoo, Office of Legal Counsel (DOJ), John Ashcroft, David S. Addington, US Department of Justice

Category Tags: Other Legal Changes

The Office of Legal Counsel (OLC)‘s John Yoo sends a secret memo to the chief counsel of the Defense Department, William Haynes. The contents remain secret, but the American Civil Liberties Union (ACLU) will later learn that the subject of the memo is “The American Bar Association’s Task Force on Treatment of Enemy Combatants Report.” The ABA will issue a report condemning the US’s treatment of detainees in August 2004 (see August 9, 2004). [American Civil Liberties Union [PDF], 1/28/2009 pdf file]

Entity Tags: John C. Yoo, American Civil Liberties Union, William J. Haynes, Office of Legal Counsel (DOJ), US Department of Justice

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

Charles Lewis.
Charles Lewis. [Source: Center for Public Integrity]Charles Lewis of the Center for Public Integrity reveals the leaked text of a new anti-terrorism bill. Called the Domestic Security Enhancement Act of 2003, it becomes popularly known as the Patriot Act II. The text of the bill is dated January 9, 2003. [Congress, 1/9/2003; NOW with Bill Moyers, 2/7/2003; Center for Public Integrity, 2/7/2003] Before it was leaked, the bill was being prepared in complete secrecy from the public and Congress. Only House Speaker Dennis Hastert and Vice President Cheney were sent copies on January 10. [San Francisco Chronicle, 2/11/2003] A week earlier, Attorney General Ashcroft said the Justice Department was not working on any bill of this type, and when the text is released, they say it is just a rough draft. But the text “has all the appearance of a document that has been worked over and over.” [Village Voice, 2/28/2003; ABC News, 3/12/2003] Some, including a number of congresspeople, speculate that the government is waiting until a new terrorist act or war fever before formally introducing this bill. [NOW with Bill Moyers, 2/7/2003; Associated Press, 2/10/2003; United Press International, 3/10/2003; Village Voice, 3/26/2003] Here are some of its provisions:
bullet 1) The attorney general is given the power to deport any foreign national, even people who are legal permanent residents. No crime need be asserted, no proof offered, and the deportation can occur in complete secrecy. [St. Petersburg Times, 2/16/2003]
bullet 2) It would authorize secret arrests in terrorism investigations, which would overturn a court order requiring the release of names of their detainees. [St. Petersburg Times, 2/16/2003] Not even an attorney or family need be informed until the person is formally charged, if that ever happens. [ABC News, 3/12/2003]
bullet 3) The citizenship of any US citizen can be revoked if they are members of or have supported any group the attorney general designates as terrorist. [St. Petersburg Times, 2/16/2003] A person who gives money to a charity that only later turns out to have some terrorist connection could then lose his or her citizenship. [CNN, 3/6/2003]
bullet 4) “Whole sections… are devoted to removing judicial oversight.” Federal agents investigating terrorism could have access to credit reports, without judicial permission. [St. Petersburg Times, 2/16/2003]
bullet 5) Federal investigators can conduct wiretaps without a court order for 15 days whenever Congress authorizes force or in response to an attack on the United States. [United Press International, 3/10/2003]
bullet 6) It creates a DNA database of anyone the Justice Department determines to be a “suspect,” without court order. [Mercury News (San Jose), 2/20/2003]
bullet 7) It would be a crime for someone subpoenaed in connection with an investigation being carried out under the Patriot Act to alert Congress to any possible abuses committed by federal agents. [ABC News, 3/12/2003]
bullet 8) Businesses and their personnel who provide information to anti-terrorism investigators are granted immunity even if the information is fraudulent. [ABC News, 3/12/2003]
bullet 9) The government would be allowed to carry out electronic searches of virtually all information available about an individual without having to show probable cause and without informing the individual that the investigation was being carried out. Critics say this provision “would fundamentally change American society” because everyone would be under suspicion at all times. [ABC News, 3/12/2003]
bullet 10) Federal agents would be immune from prosecution when they engage in illegal surveillance acts. [United Press International, 3/10/2003]
bullet 11) Restrictions are eased on the use of secret evidence in the prosecution of terror cases. [United Press International, 3/10/2003]
bullet 12) Existing judicial consent decrees preventing local police departments from spying on civil rights groups and other organizations are canceled. [Salon, 3/24/2003]
bullet Initially the story generates little press coverage, but there is a slow stream of stories over the next weeks, all expressing criticism. Of all the major newspapers, only the Washington Post puts the story on the front page, and no television network has the story in prime time. [Associated Press, 2/8/2003; CBS News, 2/8/2003; Los Angeles Times, 2/8/2003; New York Times, 2/8/2003; Washington Post, 2/8/2003; Associated Press, 2/10/2003; San Francisco Chronicle, 2/11/2003; Los Angeles Times, 2/13/2003; St. Petersburg Times, 2/16/2003; Denver Post, 2/20/2003; Pittsburgh Post-Gazette, 2/20/2003; Mercury News (San Jose), 2/20/2003; Baltimore Sun, 2/21/2003; Star-Tribune (Minneapolis), 2/21/2003; Village Voice, 2/28/2003; Houston Chronicle, 3/1/2003; CNN, 3/6/2003; United Press International, 3/10/2003; ABC News, 3/12/2003; Herald Tribune (Sarasota), 3/19/2003; Salon, 3/24/2003; Village Voice, 3/26/2003; Tampa Tribune, 4/6/2003] Representative Jerrold Nadler (D-NY) says the bill amounts to “little more than the institution of a police state.” [San Francisco Chronicle, 2/11/2003]

Entity Tags: Center for Public Integrity, Dennis Hastert, Domestic Security Enhancement Act of 2003, Jerrold Nadler, John Ashcroft, Richard (“Dick”) Cheney

Category Tags: Other Legal Changes, Patriot Act, Gov't Violations of Prisoner Rights, Citizenship Rights

When the secretary of homeland security and the attorney general announce that the national terror level is being raised from yellow to orange (see February 7-13, 2003), InfraGard members are specifically mentioned. InfraGuard is a program in which private companies work with the FBI and the Department of Homeland Security, which provides these companies with information not available to the public (see 1996-2008). In their listing of “additional steps” that federal agencies are taking to “increase their protective measures,” one of those steps is to “provide alert information to InfraGard program.” [Progressive, 2/7/2008]

Entity Tags: InfraGard

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

The General Accounting Office (GAO), the nonpartisan investigative arm of Congress, declines to appeal a case attempting to force Vice President Cheney to disclose his Energy Task Force documents (see May 16, 2001, February 22, 2002, and December 9, 2002). This ends a potentially historic showdown between the Congressional watchdog agency and the executive branch. [Los Angeles Times, 2/8/2003] It is widely believed that the suit is dropped because of pressure from the Republican Party—the suit was filed when the Democrats controlled the Senate, and this decision comes shortly after the Republicans gained control of it. [Washington Post, 2/8/2003] The head of the GAO denies the lawsuit is dropped because of Republican threats to cut his office’s budget, but US Comptroller General David Walker, who led the case, says there was one such “thinly veiled threat” last year by a lawmaker he wouldn’t identify. [Reuters, 2/25/2003] Another account has Senator Ted Stevens (R-AK) and a number of other congresspeople making the threat to Walker. [Hill, 2/19/2003] The GAO has previously indicated that accepting defeat in this case would cripple its ability to oversee the executive branch. [Washington Post, 2/8/2003] A similar suit filed by Judicial Watch and the Sierra Club continues to move forward, but will ultimately be defeated by the Supreme Court (see May 10, 2005). [Washington Post, 2/8/2003]
Picking Its Battles - Walker explains that to continue the case “would require investment of significant time and resources over several years.” Later, he will say that he decided not to appeal the case for what reporter Charlie Savage will call “damage-control reasons.” Walker does not want to involve the GAO in what he fears will be perceived as a partisan conflict, and he does not want to risk further crippling the GAO’s ability to function by risking another negative ruling from a federal appeals court. “If the GAO was going to fight that legal battle,” Savage will write in explanation of Walker’s reasoning, “it was strategically unwise to use a case that involved records inside the White House itself instead of a less prominent part of the executive branch.” [Savage, 2007, pp. 113]
Refusal to Appeal 'Stunning' - In 2004, former Nixon White House counsel John Dean will write that he finds the GAO’s decision not to appeal the ruling “stunning.” Walker says the GAO isn’t going to challenge the ruling because it does not materially affect the GAO’s ability to function because the “decision did not address the merits” of the GAO’s arguments. The ruling, Walker says, “has no effect on GAO’s statutory audit rights or the obligation of agencies to provide GAO with information.” Dean calls this line of reasoning “wishful thinking at its best.” Dean will ask a high-level GAO official about the reported threats from Congressional Republicans. The official will reply that the threats did not worry Walker and the GAO lawyers nearly as much as the possibility that, if the GAO were to pursue the lawsuit, then, Dean will write, “the Supreme Court could do again what it did in Bush v. Gore and make Walker v. Cheney the landmark ruling ending virtually all Congressional oversight.” But lawyers for the Congressional Research Service (CRS) say that the ruling as it stands places severe restrictions on Congressional oversight. As Dean puts it: “The GAO has lost not only standing to file a lawsuit but the leverage of the threat of filing such a lawsuit, should an executive department or agency stonewall the way Cheney did. The GAO must now simply take what the White House (and its many appendages…) volunteers. This has never before been the case. [The GAO] will see only what Bush and Cheney want it to see.” The CRS notes that the ruling “calls into question the ability of Congress to delegate investigative authority to its agents;” Dean will write that this “may be the true reason for the lawsuit and for Cheney’s actions.” [Dean, 2004, pp. 80-81]
'Big Win' for Bush/Cheney - Constitutional scholar Thomas Mann of the Brookings Institution will call the ruling a “big win” for the Bush-Cheney administration, saying: “President Bush and Vice President Cheney have an extreme and relentless executive-centered conception of American government, and it plays out every day, and there are dozens of fronts in this effort to strengthen the presidency. Power naturally gravitates to the presidency in times of uncertainty. But people are going to question putting all of our trust in an unfetttered presidency.” Former Justice Department official Bruce Fein is more blunt. “Now they have a precedent that they can hold over Congress’s head,” he will say. “Like a loaded gun. Forever.” [Dubose and Bernstein, 2006, pp. 14-15]

Entity Tags: George W. Bush, Ted Stevens, Energy Task Force, John Dean, David Walker, Bruce Fein, Charlie Savage, Congressional Research Service, Brookings Institution, Richard (“Dick”) Cheney, Thomas Mann

Timeline Tags: US Environmental Record

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

The Justice Department’s Office of Legal Counsel (OLC) sends a classified memo to Attorney General John Ashcroft. The contents remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo concerns the use of information collected in the course of classified foreign intelligence activities. [American Civil Liberties Union [PDF], 1/28/2009 pdf file] The memo may concern a just-released Senate report condemning the Justice Department’s misuse of the Foreign Intelligence Surveillance Act (see February 25, 2003).

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

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

The Senate Judiciary Committee issues an interim report titled “FISA Implementation Failures” that finds the FBI has mishandled and misused the Foreign Intelligence Surveillance Act (FISA) in its anti-terrorism measures. The report is written by Arlen Specter (R-PA), Charles Grassley (R-IA), and Patrick Leahy (D-VT). [US Congress, 2/2003] Committee chairman Orrin Hatch (R-UT) not only refused to take part in the report, he issues a letter protesting the report’s findings. Other committee members were invited to take part in drafting the report, but none did so. [Salon, 3/3/2003] Specter says just after the report is issued, “The lack of professionalism in applying the law has been scandalous. The real question is if the FBI is capable of carrying out a counterintelligence effort.” According to the report, both the FBI and the Justice Department routinely employ excessive secrecy, suffer from inadequate training, weak information analysis, and bureaucratic bottlenecks, and will stifle internal dissent to excess as part of their usage of the expanded powers provided under FISA. The report uses as a case study the instance of suspected terrorist Zacarias Moussaoui (see August 16, 2001), who stands accused of conspiring with the 9/11 hijackers. FBI officials in Washington impeded efforts by its agents in Minneapolis, most notably former FBI agent Coleen Rowley, to secure a FISA warrant that would have allowed those agents to search Moussaoui’s laptop computer and belongings before the attack. [US Congress, 2/2003; Associated Press, 2/25/2003] “September 11 might well have been prevented,” says Specter. “What are they doing now to prevent another 9/11?” Grassley adds that in closed Senate hearings, they learned that two supervisors who handled the case did not understand the basic elements of FISA, and a senior FBI attorney could not provide the legal definition of “probable cause,” a key element needed to obtain a FISA warrant. [Associated Press, 2/25/2003] “I hate to say this,” Leahy observes, “but we found that the FBI is ill-equipped” to conduct surveillance on those in the United States possibly plotting terrorist acts on behalf of foreign powers. [Salon, 3/3/2003]
Lack of Cooperation from FBI, Justice Department - The report says that neither the FBI nor the Justice Department were cooperative with the Judiciary Committee in the committee’s efforts to investigate either agency’s actions under FISA, routinely delaying their responses to Congressional inquiries and sometimes ignoring them altogether. The report says that perhaps the most troubling of its findings is “the lack of accountability that has permeated the entire application procedure.” The report notes that although Congressional oversight is critical to ensure a transparent, effective usage of FISA powers (augmented under the USA Patriot Act) that do not stray from legal boundaries, such oversight has been discouraged by both the FBI and the Justice Department. [US Congress, 2/2003] The Justice Department dismisses the report as “old news.” [Patrick Leahy, 2/27/2003] Grassley says, “I can’t think of a single person being held accountable anywhere in government for what went on and what went wrong prior to Sept. 11. It seems that nobody in government makes any mistakes anymore.” [Salon, 3/3/2003]
Spark for New Legislation - The three senators use the report as a springboard to introduce a bill, the “Domestic Surveillance Oversight Act,” which will allow Congress to more closely oversee oversee FBI surveillance of Americans and government surveillance of public libraries, would supervise FISA usage in criminal cases, and disclose the secret rules of the FISA court to Congress. [Associated Press, 2/25/2003] Even though all three senators support a lowering of the standards by which a FISA warrant can be issued, the American Civil Liberties Union says it supports the bill, with reservations. “There’s a lot of concern in this country that, especially with the USA PATRIOT Act, FISA has become a massive tool for secret surveillance,” says ACLU lawyer Timothy Edgar. “One way to assuage those concerns—or show that they’re true—is to have more reporting.” Edgar says that the ACLU worries about the lowering of the standards for such warrants, but as long as the bill implement. [Salon, 3/3/2003] The question of the bill becomes moot, however, as it will never make it out of committee. [US Congress - Senate Judiciary Committee, 3/2003]

Entity Tags: USA Patriot Act, Robert S. Mueller III, Tim Edgar, Patrick J. Leahy, Senate Judiciary Committee, Marion (“Spike”) Bowman, Federal Bureau of Investigation, US Department of Justice, American Civil Liberties Union, Foreign Intelligence Surveillance Act, Arlen Specter, Domestic Surveillance Oversight Act, Charles Grassley, Zacarias Moussaoui

Category Tags: Impositions on Rights and Freedoms, Patriot Act, Government Acting in Secret, Government Classification, Other Surveillance

Lawyers Wilson Brown and Jeff Almeida file a request with the Supreme Court, asking it to reconsider its landmark 1953 case, US v Reynolds (see March 9, 1953). The lawyers are representing several family members who lost fathers (and, in one case, a husband) in the airplane crash that led to the original case (see October 6, 1948). The lawyers note that the government’s original claim that the accident reports could not be released due to the inclusion of “military secrets” (see July 26, 1950) is false, as the accident reports have been declassified and examined for such secrets (see February 2000). “Indeed,” the lawyers write, “they are no more than accounts of a flight that, due to the Air Force’s negligence, went tragically awry. In telling the Court otherwise, the Air Force lied. In reliance upon that lie, the Court deprived the widows [the three original plaintiffs] of their judgments. It is for this Court, through issuance of a writ of error coram nobis and in exercise of its inherent power to remedy fraud, to put things right… United States v. Reynolds stands as a classic ‘fraud on the court,’ one that is most remarkable because it succeeded in tainting a decision of our nation’s highest tribunal.” [Siegel, 2008, pp. 249-251] On July 26, 2002, one of the plaintiffs, Judy Palya Loether, wrote in an e-mail to Brown: ”US v Reynolds has come to be a landmark case that is used by the government when it claims that documents cannot be turned over to the courts because of national security. Yet this very case is now proven, in my mind, to be based on a lie that did injury to 3 widows and 5 little children (see February 2000)… It allowed the government an area of no checks and balances (see December 11, 1951). How many times has the government used this decision, not to protect national security, but for its own purposes?” [Siegel, 2008, pp. 237-238]

Entity Tags: Judy Palya Loether, Jeff Almeida, US Supreme Court, US Department of the Air Force, Wilson Brown

Category Tags: Impositions on Rights and Freedoms, Government Acting in Secret, Government Classification, State Secrets

A working group appointed by the Defense Department’s general counsel, William J. Haynes, completes a 100-page-plus classified report justifying the use of torture on national security grounds. The group—headed by Air Force General Counsel Mary Walker and including top civilian and uniformed lawyers from each military branch—consulted representatives of the Justice Department, the Joint Chiefs of Staff, the Defense Intelligence Agency, and other intelligence agencies in drafting the report. It was prepared for Secretary of Defense Donald Rumsfeld and was meant to respond to complaints from commanders working at the Guantanamo Bay base in Cuba who claimed that conventional interrogation tactics were inadequate. The conclusions in the report are similar to those of an August 1, 2002 memo (see August 1, 2002) drafted by the Justice Department’s Office of Legal Counsel (OLC). The OLC is said to have also contributed to this report. [US Department of Defense, 3/6/2003; Wall Street Journal, 6/7/2004; Los Angeles Times, 6/10/2004] The report notes that both Congress and the Justice Department will have difficulty enforcing the law if US military personnel could be shown to be acting as a result of presidential orders. [Washington Post, 6/8/2004]
President's Authority During War Gives Power to Order Torture, Supersede Law - One of the main conclusions of the report is that the president’s authority as commander-in-chief permits him during times of war to approve almost any physical or psychological interrogation method—including torture—irrespective of any domestic or international law. The report finds, “[I]n order to respect the President’s inherent constitutional authority to manage a military campaign… [the 1994 law banning torture] must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority.” The draft report clearly states that neither Congress, the courts, nor international law has jurisdiction over the president’s actions when the country is waging war. The report asserts that “without a clear statement otherwise, criminal statutes are not read as infringing on the president’s ultimate authority” to wage war. Furthermore, “any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution’s sole vesting of the commander-in-chief authority in the president.” According to the document, the federal Torture Statute simply does not apply. “In order to respect the president’s inherent constitutional authority to manage a military campaign… (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his commander-in chief authority,” the report states (The parenthetical comment is in the original document). A career military lawyer will later tell the Wall Street Journal that many lawyers disagreed with these conclusions, but that their concerns were overridden by the political appointees heading the drafting of the report. The lawyer explains that instead, military lawyers focused their efforts on limiting the report’s list of acceptable interrogation methods. [Wall Street Journal, 6/7/2004; Washington Post, 6/8/2004]
Guantanamo Bay Not Covered under Torture Restrictions - The report also finds that the 1994 law barring torture “does not apply to the conduct of US personnel” at Guantanamo Bay, nor does it apply to US military interrogations that occurred outside US “maritime and territorial jurisdiction,” such as in Iraq or Afghanistan. [Washington Post, 6/8/2004]
Legal Arguments to Defend against Torture Charges Conflict with International Statutes - The draft report lists several possible arguments that US civilian or military personnel might use to defend themselves against charges of torture or other war crimes. According to the administration’s lawyers, one argument would be that such actions were “necessary” in order to prevent an attack. However, this rationale seems to ignore very clear statements in the Convention Against Torture (see October 21, 1994) which states that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Another line of defense, the report says, would be to claim that the accused had been acting under “superior orders” and that therefore no “moral choice was in fact possible.” Likewise, the report cites a Justice Department opinion, which the draft report says “concluded that it could not bring a criminal prosecution against a defendant who had acted pursuant to an exercise of the president’s constitutional power.” This also contradicts the Convention against Torture, which states that orders from superiors “may not be invoked as a justification of torture.” The authors of the report also suggest in the draft report that accused officials could argue that they had “mistakenly relied in good faith on the advice of lawyers or experts,” adding, “Good faith may be a complete defense.” The memo also argues that the International Covenant on Political and Civil Rights (ICCPR), to which the US is a party, “does not apply outside the United States or its special maritime and territorial jurisdiction (SMTJ), and that it does not apply to operations of the military during an international armed conflict,” as the US “has maintained consistently.” Since the “Guantanamo Bay Naval Station (GTMO) is included within the definition of the special maritime and territorial jurisdiction of the United States,” the ICCPR does not apply to Guantanamo Bay. The authors are also convinced that officials would not be prosecutable under US law, concluding that “constitutional principles” precluded the possibility that officials could be punished “for aiding the president in exercising his exclusive constitutional authorities” and neither Congress nor the courts had the authority to “require or implement the prosecution of such an individual.” [Wall Street Journal, 6/7/2004]
Defining Parameters of Interrogation Methods - The document attempts to define the parameters of lawful interrogation methods in terms of the degree of pain or psychological manipulation they cause. The report states that the infliction of physical or mental suffering does not constitute torture. To violate Section 2340 A of the US Code, prohibiting physical torture, suffering must be “severe,” the lawyers advise, noting that according to a dictionary definition, this would mean that the pain “must be of such a high level of intensity that… [it] is difficult for the subject to endure.” It must also be “inflicted with specific intent,” they say, meaning that the perpetrator expressly intends to cause severe pain and suffering. But if the defendant simply used pain and suffering as a means to an end, such specific intent would not exist. Under certain circumstances, the lawyers explain, the US would be justified in resorting to illegal measures like torture or homicide. They argue that such measures should be considered “self-defense” in cases where officials “honestly believe” that such actions would prevent an imminent attack against the US. “Sometimes the greater good for society will be accomplished by violating the literal language of the criminal law,” the draft document asserts. “In sum,” the panel determines, “the defense of superior orders will generally be available for US Armed Forces personnel engaged in exceptional interrogations except where the conduct goes so far as to be patently unlawful.” Civil law suits, the panel notes, by a foreign victim of torture will not apply to the US government. [US Department of Defense, 3/6/2003; Wall Street Journal, 6/7/2004]
Report May Not Define Practices, Pentagon Implies - A Pentagon spokesman later says the memo represents “a scholarly effort to define the perimeters of the law,” and notes: “What is legal and what is put into practice is a different story.” [Washington Post, 6/8/2004]

Entity Tags: US Department of Justice, US Department of Defense, Office of Legal Counsel (DOJ), International Covenant on Political and Civil Rights, Joint Chiefs of Staff, Convention Against Torture, Defense Intelligence Agency, Donald Rumsfeld, Mary L. Walker, William J. Haynes

Timeline Tags: Torture of US Captives

Category Tags: Other Legal Changes, Detainments Outside US, Gov't Violations of Prisoner Rights

Wanted poster for John Doe #2, left, and Jose Padilla, right.
Wanted poster for John Doe #2, left, and Jose Padilla, right. [Source: Public domain, via Village Voice]A judge reaffirms the right of Jose Padilla, a US citizen being held as an “enemy combatant,” to meet with a lawyer (see June 10, 2002; December 4, 2002). The same judge ruled that he could meet with a lawyer in December 2002, but the government continues to challenge the ruling and continues to block his access to a lawyer. [Associated Press, 3/11/2003] Later in the month, the government tells the judge it is planning to ignore his order and will appeal the case. [Associated Press, 3/26/2003] While it may be completely coincidental, the Village Voice has noticed that Padilla is a “dead ringer” for the never found “John Doe #2” of the 1995 Oklahoma City bombing, and other evidence could tie him to it. [Village Voice, 3/27/2002; Village Voice, 6/13/2002]

Entity Tags: Jose Padilla

Timeline Tags: Torture of US Captives

Category Tags: Court Procedures and Verdicts, Detainments in US, Gov't Violations of Prisoner Rights

The new head of the Justice Department’s Office of Legal Counsel (OLC), Jack Goldsmith, sends a classified memo to Deputy Attorney General James Comey. The contents of the memo remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo concerns classified foreign intelligence activities (see February 25, 2003). [American Civil Liberties Union [PDF], 1/28/2009 pdf file] (The ACLU has Goldsmith as the author of the memo, even though he is not nominated for the OLC slot until May 2003 [Savage, 2007, pp. 183] , and will not be confirmed for the position until five months after that (see October 6, 2003). The reason for the apparent discrepancy is not immediately discernible.)

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

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

The Justice Department sends a legal memorandum to the Pentagon that claims federal laws prohibiting torture, assault, maiming, and other crimes do not apply to military interrogators questioning al-Qaeda captives because the president’s authority as commander in chief overrides the law. The 81-page memo, written by the Office of Legal Counsel’s John Yoo, is not publicly revealed for over five years (see April 1, 2008).
President Can Order Maiming, Disfigurement of Prisoners - Yoo writes that infractions such as slapping, shoving, and poking detainees do not warrant criminal liability. Yoo goes even farther, saying that the use of mind-altering drugs can be used on detainees as long as they do not produce “an extreme effect” calculated to “cause a profound disruption of the senses or personality.” [John C. Yoo, 3/14/2003 pdf file; Washington Post, 4/2/2008] Yoo asks if the president can order a prisoner’s eyes poked out, or if the president could order “scalding water, corrosive acid or caustic substance” thrown on a prisoner. Can the president have a prisoner disfigured by slitting an ear or nose? Can the president order a prisoner’s tongue torn out or a limb permanently disabled? All of these assaults are noted in a US law prohibiting maiming. Yoo decides that no such restrictions exist for the president in a time of war; that law does not apply if the president deems it inapplicable. The memo contains numerous other discussions of various harsh and tortuous techniques, all parsed in dry legal terms. Those tactics are all permissible, Yoo writes, unless they result in “death, organ failure, or serious impairment of bodily functions.” Some of the techniques are proscribed by the Geneva Conventions, but Yoo writes that Geneva does not apply to detainees captured and accused of terrorism. [Washington Post, 4/6/2008]
'National Self-Defense' - Yoo asserts that the president’s powers as commander in chief supersede almost all other laws, even Constitutional provisions. “If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al-Qaeda terrorist network,” Yoo writes. “In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.… Even if an interrogation method arguably were to violate a criminal statute, the Justice Department could not bring a prosecution because the statute would be unconstitutional as applied in this context.” Interrogators who harmed a prisoner are protected by a “national and international version of the right to self-defense.” He notes that for conduct during interrogations to be illegal, that conduct must “shock the conscience,” an ill-defined rationale that will be used by Bush officials for years to justify the use of waterboarding and other extreme interrogation methods. Yoo writes, “Whether conduct is conscience-shocking turns in part on whether it is without any justification,” explaining that that it would have to be inspired by malice or sadism before it could be prosecuted.
Memo Buttresses Administration's Justifications of Torture - The Justice Department will tell the Defense Department not to use the memo nine months later (see December 2003-June 2004), but Yoo’s reasoning will be used to provide a legal foundation for the Defense Department’s use of aggressive and potentially illegal interrogation tactics. The Yoo memo is a follow-up and expansion to a similar, though more narrow, August 2002 memo also written by Yoo (see August 1, 2002). Defense Secretary Donald Rumsfeld will suspend a list of aggressive interrogation techniques he had approved, in part because of Yoo’s memo, after an internal revolt by Justice Department and military lawyers (see February 6, 2003, Late 2003-2005 and December 2003-June 2004). However, in April 2003, a Pentagon working group will use Yoo’s memo to endorse the continued use of extreme tactics. [John C. Yoo, 3/14/2003 pdf file; Washington Post, 4/2/2008; New York Times, 4/2/2008]
Justice Department Claims Attorney General Knows Nothing of Memo - Yoo sends the memo to the Pentagon without the knowledge of Attorney General John Ashcroft or Ashcroft’s deputy, Larry Thompson, senior department officials will say in 2008. [Washington Post, 4/4/2008]

Entity Tags: US Department of Justice, John C. Yoo, Larry D. Thompson, Al-Qaeda, Office of Legal Counsel (DOJ), Donald Rumsfeld, John Ashcroft, Geneva Conventions, US Department of Defense

Timeline Tags: Torture of US Captives, Complete 911 Timeline

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

Wilson Brown, who has filed a petition with the Supreme Court asking that it reconsider its landmark 1953 US v Reynolds case (see March 9, 1953), receives an e-mail from Alison Massagli of the White House’s Foreign Intelligence Advisory Board. Massagli, who learned of the petition from an article in the Philadelphia Inquirer, wants a copy of Brown’s petition. Brown notices that Massagli sent a copy of the e-mail to Catherine Lotrionete of the National Security Council. Brown is pleased that the case has garnered some attention. He e-mails the plaintiffs he is representing, saying, “I thought you would find it interesting that at least one arm of the Executive Branch is interested in our case.” [Siegel, 2008, pp. 257]

Entity Tags: National Security Council, Alison Massagli, Foreign Intelligence Advisory Board, US Supreme Court, Wilson Brown, Catherine Lotrionete

Category Tags: Government Classification, State Secrets

President Bush asserts his own authority to take the nation to war over Congress’s constitutional powers. In a letter to Congress announcing the military strikes against Iraq, Bush briefly notes Congress’s authorization for military action (see October 11, 2002), but writes that he has ordered US troops into battle “pursuant to my authority as commander in chief.” The letter is sent to House Speaker Dennis Hastert (R-IL) and Senate President Pro Tempore Ted Stevens (R-AK). Bush made a similar, and similary unchallenged, assertion when he sent US troops into Afghanistan (see October 7, 2001). [Letter to congressional leaders reporting on the commencement of military operations against Iraq, 3/21/2003; Savage, 2007, pp. 158]

Entity Tags: Ted Stevens, George W. Bush, Dennis Hastert

Category Tags: Expansion of Presidential Power

President Bush signs an amendment to Executive Order 12958, giving government agencies broad new powers to reclassify documents already released to the public and having them removed from the public stacks of the National Archives. Archivist Allen Weinstein later estimates that some 25,000 documents and records will be removed from public access due to Bush’s decision. The reclassification program will eventually be shut down. Weinstein will later observe: “More than one of three documents removed from the open shelves and barred to researchers should not have been tampered with. That practice, which undermined the National Archives’ basic mission to preserve the authenticity of files under our stewardship must never be repeated.” The order also makes it much easier to initially classify a document or a record, resulting in over 15 million newly classified documents by the end of 2004. [Savage, 2007, pp. 162-163] A second, separate amendment to the order gives Vice President Cheney the power to unilaterally classify and declassify information (see March 25, 2003).

Entity Tags: National Archives and Records Administration, George W. Bush, Allen Weinstein

Category Tags: Impositions on Rights and Freedoms, Government Acting in Secret, Government Classification

President Bush signs Executive Order 13292 into effect. Innocuously titled “Further Amendment to Executive Order 12958,” and virtually ignored by the press, the order gives the vice president the power to unilaterally classify and declassify intelligence, a power heretofore reserved exclusively for the president. The order is an unprecedented expansion of the power of the vice president. Author Craig Unger will explain: “Since Cheney had scores of loyalists throughout the Pentagon, the State Department, and the National Security Council who reported to him, in operational terms, he was the man in charge of foreign policy. If Cheney wanted to keep something secret, he could classify it. If he wanted to leak information, or disinformation, to the New York Times or Washington Post, he could declassify it.” Moreover, Unger will write, the order grants “a measure of legitimacy to Cheney’s previous machinations with the national security apparatus, and in doing so it consolidate[s] the totality of his victories.” Combine the order with the disabled peer review procedures in the intelligence community, the banning of dissenting voices from critical policy deliberations and intelligence briefings, and the subversion of the National Intelligence Estimate on Iraq (see October 1, 2002), and the nation has, Unger will write, an effective vice presidential coup over the nation’s intelligence apparatus. Cheney, Defense Secretary Rumsfeld, and the administration neoconservatives now effectively run that apparatus. [White House, 3/25/2003; Unger, 2007, pp. 298-299]

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

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

President Bush signs an executive order delaying the public release of millions of government documents, citing the need to more thoroughly review them first. The government faced an April 17 deadline for declassifying millions of documents at least 25 years old. [Reuters, 3/26/2003] The order countermands a 1995 executive order by then-President Bill Clinton, who mandated that government documents over 25 years old be automatically declassified unless there was “significant doubt” as to whether their release would damage national security. [New York Times, 3/21/2003] The order also treats all material sent to American officials from foreign governments, no matter how routine, as subject to classification. It expands the ability of the CIA to shield documents from declassification, giving the director the right to unilaterally block any declassification of agency documents. And for the first time, it gives the vice president the power to classify information. The New York Times says, “Offering that power to Vice President Dick Cheney, who has shown indifference to the public’s right to know what is going on inside the executive branch, seems a particularly worrying development.” [New York Times, 3/21/2003; New York Times, 3/28/2003] Historian Anna Nelson says of the decision: “This is in context with the way this administration has done the whole bit on secrecy. They have left a skeletal process.” But Steven Aftergood of the Federation of American Scientists is less harsh in his assessment, saying, “One might have expected a more aggressive, pro-secrecy policy than this draft.” Tom Blanton of the private National Security Archive says the provision to classify information from foreign governments is far too broad: “Making all foreign government information presumptively classified means we’re lowering our openness standard to the lowest common denominator of our ostensible allies.” [New York Times, 3/21/2003]

Entity Tags: Tom Blanton, Steven Aftergood, New York Times, George W. Bush, Richard (“Dick”) Cheney, Anna Nelson, Central Intelligence Agency, William Jefferson (“Bill”) Clinton

Category Tags: Government Classification

US District Court Judge Gladys Kessler, appointed to the bench by former President Bill Clinton, rules that the Bush administration is within the law in refusing to release documents pertaining to pardons issued by Clinton to Congress (see August 21, 2001 and December 13, 2001). Judicial Watch president Tom Fitton accuses Kessler of endorsing the Bush administration’s claim of executive privilege in order to protect Clinton’s reputation. The White House hails the ruling, and spokesman Scott McClellan notes that the courts have now recognized that the privilege “applies to former, current, and future presidents.” In 2007, author and reporter Charlie Savage will write that the ruling hands “the Bush-Cheney legal team another victory in its bid to expand the White House’s power to keep its inner workings secret.” [Savage, 2007, pp. 99]

Entity Tags: Charlie Savage, Bush administration (43), Clinton administration, Gladys Kessler, Tom Fitton, Scott McClellan

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

The Justice Department advises in a set of legal memorandums that if “government officials… are contemplating procedures that may put them in violation of American statutes that prohibit torture, degrading treatment or the Geneva Conventions, they will not be responsible if it can be argued that the detainees are formally in the custody of another country.” That is because, according to one official, “It would be the responsibility of the other country.” The memos seem to suggest that top government officials may be concerned that they are in violation of international laws. One administration figure involved in discussions about the memos tells the New York Times in May 2004: “The criminal statutes only apply to American officials. The question is how involved are the American officials.” [New York Times, 5/13/2004]

Timeline Tags: Torture of US Captives

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

Praising a judicial ruling against efforts to obtain information about his Energy Task Force, Vice President Dick Cheney says, “I think it restored some of the legitimate authority of the executive branch, the president and the vice president, to be able to conduct their business.” [Congress Daily, 6/29/2007]

Entity Tags: Energy Task Force, Richard (“Dick”) Cheney

Category Tags: Expansion of Presidential Power

Defense Secretary Donald Rumsfeld signs a memo on interrogation methods approving 24 of the 35 techniques recommended by the Pentagon working group (see April 4, 2003) earlier in the month. The new set of guidelines, to be applied to prisoners at Guantanamo and Afghanistan, is a somewhat softer version of the initial interrogation policy that Rumsfeld approved in December 2002 (see December 2, 2002). [Roth and Malinowski, 5/3/2004; Washington Post, 5/11/2004; Age (Melbourne), 5/13/2004; Washington Post, 5/13/2004; Los Angeles Times, 5/22/2004; Newsweek, 5/24/2004; Wall Street Journal, 6/7/2004; MSNBC, 6/23/2004; Truthout (.org), 6/28/2004] Several of the techniques listed are ones that the US military trains Special Forces to prepare for in the event that they are captured by enemy forces (see December 2001 and July 2002). [New York Times, 5/13/2004]
Two Classes of Methods - The list is divided into two classes: tactics that are authorized for use on all prisoners and special “enhanced measures” that require the approval of Lieutenant General Ricardo Sanchez. The latter category of methods includes tactics that “could cause temporary physical or mental pain,” like “sensory deprivation,” “stress positions,” “dietary manipulation,” forced changes in sleep patterns, and isolated confinement. [Washington Post, 5/11/2004; Washington Post, 5/13/2004] Other techniques include “change of scenery down,” “dietary manipulation,” “environmental manipulation,” and “false flag.” The first 18 tactics listed all appear in the 1992 US Army Field Manual (FM) 34-52, with the exception of the so-called “Mutt-and-Jeff” approach, which is taken from an obsolete 1987 military field manual (1987 FM 34-52). [USA Today, 6/22/2004] The approved tactics can be used in conjunction with one another, essentially allowing interrogators to “pile on” one harsh technique after another. Categories such as “Fear Up Harsh” and “Pride and Ego Down” remain undefined, allowing interrogators to interpret them as they see fit. And Rumsfeld writes that any other tactic not already approved can be used if he gives permission. Author and reporter Charlie Savage will later write, “In other words, there were no binding laws and treaties anymore—the only limit was the judgment and goodwill of executive branch officials. ” [Savage, 2007, pp. 181] The use of forced nudity as a tactic is not included in the list. The working group rejected it because its members felt it might be considered inhumane treatment under international law. [Associated Press, 6/23/2004]
Result of Discussions among Pentagon Officials - The memo, marked for declassification in 2013 [Truthout (.org), 6/28/2004] , is the outcome, according to Deputy General Counsel Daniel Dell’Orto, of discussions between Rumsfeld, William J. Haynes, Douglas Feith, Paul Wolfowitz, and General Richard Myers. [Washington File, 6/23/2004] One US official explains: “There are very specific guidelines that are thoroughly vetted. Everyone is on board. It’s legal.” However in May 2004, it will be learned that there was in fact opposition to the new guidelines. Pentagon lawyers from the Army Judge Advocate General’s office had objected (see May 2003 and October 2003) and many officials quietly expressed concerns that they might have to answer for the policy at a later date (see (April 2003)). [Washington Post, 5/11/2004; Washington Post, 5/13/2004]

Entity Tags: Donald Rumsfeld, Douglas Feith, Paul Wolfowitz, Richard B. Myers, William J. Haynes, Ricardo S. Sanchez, Daniel J. Dell’Orto, Charlie Savage

Timeline Tags: Torture of US Captives

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

A button supporting the Texas Democrats, nicknamed the ‘Killer D’s.’A button supporting the Texas Democrats, nicknamed the ‘Killer D’s.’ [Source: Ebay (.com)]The Republican leadership of the Texas legislature sends agents from the Department of Homeland Security (DHS), the Texas Rangers, state troopers, and members of the Special Crimes unit to locate and apprehend over 50 Democratic state legislators who have left the state to prevent a quorum from being reached. The state Democrats left Austin, and the state, in order to prevent the Republican leadership from passing a controversial electoral redistricting plan that they say discriminates against minority voters (see 2002-2004). One Democratic lawmaker, Representative Helen Giddings, is apprehended. Many of the Democrats are staying for the time being in Ardmore, Oklahoma. One Democrat, Representative Craig Eiland, says that police officers questioned his wife in Galveston, where their newborn twins are in intensive care. He calls the law enforcement efforts to “find” him and his colleagues “bordering on harassment,” and advises, “Let the good guys go back to catching the bad guys and let the politicians deal with each other.” Under Texas law, even though the Democrats are committing no crime in refusing to participate in the legislative session, state law enforcement officers have the authority to arrest members of the legislature and forcibly return them to Austin to allow the legislature to achieve a quorum. [Fort Worth Star-Telegram, 5/14/2003]
Use of Federal Resources; DHS 'Furious' at Involvement - US Representative Tom DeLay (R-TX) says that the Speaker of the Texas House, Tom Craddick (R-Midland), has asked for the intervention of the FBI and/or US Marshals to “go up and get those members.” Craddick denies making any such request. The US attorney’s office in San Antonio says that an “unidentified person” called it with an inquiry about federalizing the “arrest warrant.” A Justice Department spokesperson says the issue is entirely a state matter, and “would not warrant investigation by federal authorities.” The Air and Marine Interdiction and Coordination Center, a federal agency under the purview of the DHS, is involved for a time in a search for a private plane belonging to former House Speaker Pete Laney (D-Hale Center). The agency’s purpose is to engage in counterterrorism activities. Craddick says that the agency was successful in locating the airplane in Ardmore, alerting him that many of the Democrats are in that town. Craddick says: “We called someone, and they said they were going to track it. I have no idea how they tracked it down. That’s how we found them.” Bush administration officials promised that DHS agencies and officials would not operate within American borders when the agency was created. [Fort Worth Star-Telegram, 5/14/2003; CommonDreams, 5/14/2003] According to DHS officials, someone in the Texas Department of Public Safety (DPS) calls the Air and Marine Interdiction Coordination Center on May 12 and says: “We got a problem and I hope you can help me out. We had a plane that was supposed to be going from Ardmore, Oklahoma, to Georgetown, Texas. It has state representatives in it and we cannot find this plane.” The center agrees to help, DHS says, because “from all indications, this request from the Texas DPS was an urgent plea for assistance from a law enforcement agency trying to locate a missing, lost, or possibly crashed aircraft.” DHS officials contradict Craddick by denying that the center found Laney’s plane in Ardmore. Senator Joseph Lieberman (D-CT) says: “I am outraged that Homeland Security resources are being used to help settle partisan scores. It’s inconceivable that anyone would waste scarce department resources for such an indefensible purpose.” Lieberman is demanding an investigation into the matter. Representative Jim Turner (D-TX), the ranking Democrat on the House Select Committee on Homeland Security, says he is reminded “of the days of Watergate, when federal resources were used for purely partisan political purposes.” According to the New York Times, DeLay is working closely with Craddick on the matter, though a DeLay spokesman denies that anyone from DeLay’s office has had any contact with DHS, and adds, “This is a smoke screen from the Democrats, who will say or do anything to change the subject from shirking their constitutional responsibilities.” DPS spokesperson Tom Vinger refuses to say specifically what his department has done to find the legislators, saying only: “We were ordered to begin an investigation into the missing legislators by the Texas House and to take them into custody if we found them and bring them back to the House chambers. Those were our orders. And we used very basic, routine investigative procedures in an attempt to do this.” DHS officials tell a Times reporter on the condition of anonymity that they are furious about being involved in the search. [Utne Reader, 5/2003; New York Times, 5/15/2003] Craddick soon orders all records of the Republicans’ search for the Democrats to be destroyed, sparking outrage among the Democrats, who demand accountability and say Craddick is trying to hide something. [CBS News, 5/21/2003]
Questioning Family Members - Law enforcement officers have questioned the children of Representative Joe Pickett, angering Pickett’s wife Denise. And Carol Roark, the wife of Representative Lon Burnam, says police officers appeared at her home in Fort Worth and announced they were there to “arrest” her husband; one officer told her, “I’m here on the order of Tom Craddick to arrest Rep. Lon Burnam.” Roark says she laughed at the officer, and says, “I think it was a pretty silly use of tax dollars.” Dallas Mayor Laura Miller, whose husband, Representative Steve Wolens, is in Ardmore, says that police officers have camped out overnight in front of her home. Miller says, “I felt very safe last night because there were two DPS officers who slept in front of my home.” [Fort Worth Star-Telegram, 5/14/2003]
Mixed Reactions - Reaction to the Democrats’ exodus is mixed. Supporters have dubbed them the “Heroes of the House” and the “Killer D’s,” the latter a reference to a similar action taken by Texas Senate Democrats in the late 1970s. Republicans in Texas and Washington have labeled the Democratic lawmakers “cowards” and “terrorists.” Many Texas news outlets have shown sympathy to the Democrats and have criticized what some call the excessive reaction by the Republican leadership. [CommonDreams, 5/14/2003] DeLay says the Democrats who have left Texas “may not be patriots,” and adds, “Representatives are elected and paid for by the people with the expectation that they show up for work and do the people’s business and have the courage to cast tough votes.” In response, Representative Martin Frost (D-Arlington) says in regards to the redistricting plan: “Tom DeLay would be perfectly happy in the old Soviet Union. He wants one-party government. He doesn’t believe in a two-party system.” DeLay’s House colleague, Lloyd Doggett (D-TX), says, “It is easier, I think, for Tom to manipulate these lines… than it is to win elections.” [Dallas Morning News, 5/14/2003; New York Times, 5/15/2003]
Order Expires - The order from the Republican leadership is essentially vacated on May 15, when the Texas House, formerly “standing at ease,” officially adjourns. At that point, the “call on the House,” under which law enforcement officials are authorized to apprehend and forcibly return recalcitrant lawmakers, is abated. They return to Austin on May 16. Representative Jim Dunnam (D-Waco), who helped organize the retreat, says, “Government is by the people and for the people, and we had to go to Oklahoma to say government is not for Tom DeLay.” The delay causes the redistricting bill to lapse, but it will be brought up again in the next session, according to Texas Republicans. Representative Beverly Woolley (R-Houston) says: “Texas is a Republican state by all voting population, and they [Republicans] deserve to have greater representation in Congress. Sooner or later, we will redistrict. This is not over.” [New York Times, 5/15/2003; Houston Chronicle, 5/16/2003]

Entity Tags: James Dunnam, US Department of Homeland Security, Denise Pickett, Tom DeLay, US Department of Justice, Helen Giddings, Craig Eiland, Carol Roark, Air and Marine Interdiction and Coordination Center, Beverly Woolley, Bush administration (43), Tom Craddick, Texas State Legislature, Tom Vinger, Texas Rangers, Laura Miller, Martin Frost, Lloyd Doggett, Lon Burnam, Texas Republican Party, Joe Pickett, Joseph Lieberman, Jim Turner, Steve Wolens, Texas Department of Public Safety, Pete Laney, New York Times, Texas Democratic Party

Category Tags: Impositions on Rights and Freedoms, Voting Rights, Election, Voting Laws and Issues

Solicitor General Theodore Olson submits a response to the request that the Supreme Court reopen the 1953 state secrets case US v Reynolds (see February 26, 2003). Olson argues that once a decision has been made, it should be respected—“the law favors finality,” he writes. More surprisingly to the plaintiffs and their lawyers, Olson argues that there was no fraud perpetuated in the original case, a position hard to defend in the face of the declassified accident reports that were the heart of that case (see February 2000 and February 26, 2003). The accident reports never contained military secrets or secret information of any kind, a claim that the Court’s 1953 decision hinged on, but Olson argues that because of the wording of the claims—releasing the reports to the original plaintiffs “might lead to disclosure” of classified information—then the old claims of protecting state secrets are still technically valid (see March 9, 1953). Olson echoes the author of the original Supreme Court opinion, Fred Vinson, by reminding the Court that “[t]he claim of privilege in this case was made in 1950, at a time in the nation’s history—during the twilight of World War II and the dawn of the Cold War—when the country, and especially the military, was uniquely sensitive to need for ‘vigorous preparation for national defense.‘… The allegations of fraud made by the petition in this case… must be viewed in that light.” The lawyer for the plaintiffs in the petition, Wilson Brown, is both angered and impressed by what he calls Olson’s “remarkable obfuscation.” By hiding behind the vague wording of the original claims of state secrets, Olson is implying that this case must turn on factual issues—and therefore should be heard in a lower court, not the Supreme Court. Brown, in his response co-written by colleague Jeff Almeida, calls Olson’s arguments “disingenuous” and insists that the plaintiffs’ original case “had been vitiated through fraud.” [Siegel, 2008, pp. 261-264]

Entity Tags: Fred Vinson, Bush administration (43), Jeff Almeida, US Supreme Court, Wilson Brown, Theodore (“Ted”) Olson

Category Tags: Impositions on Rights and Freedoms, Government Classification, State Secrets

Constitutional lawyers and experts believe that the Supreme Court will not accept the petition to reopen the landmark US v Reynolds case (see February 26, 2003 and May 30, 2003). Kate Martin of the Center for National Security Studies says that the petition is essentially frivolous, and says of the claim that Reynolds was decided on the basis of a fraudulent government presentation: “That the facts of the original case are not true is irrelevant to the state secrets privilege (see March 9, 1953). The idea that it undercuts the privilege is ridiculous. Often in cases, after they’re decided, the facts are proven not to be true. That’s the nature of the legal system. Sometimes people lie. Sometimes there’s new information.” Law professor Jonathan Turley is more sympathetic to the petition, but agrees that the Supreme Court will probably not hear it: “For the Supreme Court to address the fact clearly that it had been lied to would open difficult issues.… The Court used the facts of Reynolds to say the government could be trusted.… Reynolds was based on trust, on willful blinders. There’s much danger in going back now, in recognizing that the government routinely lies. They’re not going to face that. They won’t reopen this. I think Reynolds is like discovering an unfaithful wife after fifty years of marriage. You’re hurt by the betrayal, but you can’t turn back half a century. You preserve the marriage for the children’s sake” (see December 1980, September 1982, November 1984, January 1990, June 13, 1991, and September 16, 1992). [Siegel, 2008, pp. 266-267]

Entity Tags: US Supreme Court, Jonathan Turley, Center for National Security Studies, Kate Martin

Category Tags: Impositions on Rights and Freedoms, Court Procedures and Verdicts, Government Classification, State Secrets

The White House sends a classified memo to the CIA. The contents of the memo remain secret, but the American Civil Liberties Union (ACLU) and the Washington Post will later learn that the memo approves the use of “harsh tactics” by CIA interrogators in questioning suspected terrorists. The memo was requested by CIA Director George Tenet, who asked for legal cover for the torture and harsh interrogation methods employed by CIA interrogators. A lawyer in the CIA’s general counsel office, John Radsan, later says, “The question was whether we had enough ‘top cover.’” A senior intelligence official will later add: “The CIA believed then, and now, that the program was useful and helped save lives. But in the agency’s view, it was like this: ‘We don’t want to continue unless you tell us in writing that it’s not only legal but is the policy of the administration.’” A Bush administration official will later blame the CIA for pressuring the administration to approve harsh interrogations, saying: “The CIA had the White House boxed in. They were saying, ‘It’s the only way to get the information we needed, and—by the way—we think there’s another attack coming up.’ It left the principals in an extremely difficult position and put the decision-making on a very fast track.” But a CIA official will dispute that characterization. “The suggestion that someone from CIA came in and browbeat everybody is ridiculous,” the official will state. “The CIA understood that [the interrogation program] was controversial and would be widely criticized if it became public. But given the tenor of the times and the belief that more attacks were coming, they felt they had to do what they could to stop the attack.” [Washington Post, 10/15/2008; American Civil Liberties Union [PDF], 1/28/2009 pdf file]

Entity Tags: Washington Post, Central Intelligence Agency, George J. Tenet, American Civil Liberties Union, Bush administration (43), John Radsan

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

In the case of Federal Election Commission v. Beaumont, the Supreme Court rules that the ban on direct corporate donations by the Federal Election Campaign Act (FECA—see February 7, 1972) is constitutional. The case concerns a challenge to the law by Christine Beaumont and North Carolina Right to Life (NCRL), an anti-abortion advocacy group that sued for the right to donate directly to political candidates under the First Amendment. Beaumont and the NCRL were twice denied in lower courts, and have appealed to the Supreme Court. In a 7-2 decision, the Court upholds the ban. The majority opinion is written by Justice David Souter, who rules that the ban on direct contributions is consistent with the First Amendment. The Court cannot find in favor of NCRL, Souter writes, “without recasting our understanding of the risks of harm posed by corporate political contributions, of the expressive significance of contributions, and of the consequent deference owed to legislative judgments on what to do about them.” Two of the most conservative justices on the Court, Antonin Scalia and Clarence Thomas, dissent, arguing that the ban is not constitutional. [Brennan Center for Justice, 6/16/2003; Oyez (.org), 2009]

Entity Tags: David Souter, Antonin Scalia, Christine Beaumont, Federal Election Campaign Act of 1972, Clarence Thomas, US Supreme Court, North Carolina Right to Life

Category Tags: Campaign Finance, Court Procedures and Verdicts

Ali Saleh Kahlah al-Marri.Ali Saleh Kahlah al-Marri. [Source: Slate]A month before he is slated to go on trial for bank and credit card fraud charges (see February 8, 2002), the federal government drops all criminal charges against Ali Saleh Kahlah al-Marri, who has been held without legal representation, and in solitary confinement, since 2001 (see December 12, 2001). [CBS News, 6/23/2003; CBS News, 6/23/2003; CNN, 12/13/2005; Progressive, 3/2007]
'Grave Danger' - President Bush says al-Marri “represents a continuing, present, and grave danger” to the country, and the government designates al-Marri as an “enemy combatant,” alleging that he helped al-Qaeda operatives settle in the US. “Mr. Al-Marri possesses intelligence, including intelligence about personnel and activities of al-Qaeda,” Bush continues, and adds that gaining access to it “would aid US efforts to prevent attacks by al-Qaeda.” [Knight Ridder, 6/24/2003; Progressive, 3/2007] The presidential order says he “engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism.” His detention is necessary, the order claims, to prevent him from participating in terrorist activities against the US. The order in effect precludes a pretrial hearing scheduled for July 2 and the start of a formal trial on July 22. [CNN, 6/24/2003]
Alleged Sleeper Agent - The government declaration for al-Marri says he worked as an “al-Qaeda sleeper agent” who was planning to “hack into the computer systems of US banks,” and possibly facilitate a follow up to the 9/11 attacks. For its part, the Defense Department says al-Marri trained at a terror camp in Afghanistan before 9/11, personally met Osama bin Laden, and volunteered for an unspecified “martyr mission.” [CNN, 12/13/2005] Attorney General John Ashcroft will later claim that al-Marri refused repeated offers to cooperate with the FBI; “consequently,” Ashcroft will write, Bush declares him an enemy combatant. Ashcroft will claim that under the laws of war, an enemy combatant can be killed out of hand. Instead, the government will hold al-Marri “without charge or trial until the end of the war.” [Slate, 11/30/2006]
Transferred to Navy Brig - Instead, the “enemy combatant” designation takes al-Marri, a Qatari citizen and legal US resident, out of the civilian criminal justice system and places him under the control of the Defense Department, which immediately transfers him into detention at a Navy brig in South Carolina. He could face a military tribunal or remain in detention indefinitely, without trial. He is only the third person to be publicly named as an enemy combatant, along with US citizens Jose Padilla and Yaser Esam Hamdi.
Fingered by KSM - According to a Justice Department official, al-Marri was “positively identified” as being part of a planned second wave of al-Qaeda terrorist attacks by an “al-Qaeda detainee in a position to know.” Justice officials imply that the detainee to finger al-Marri is senior 9/11 planner Khalid Shaikh Mohammed. [CBS News, 6/23/2003] Another suspected al-Qaeda operative, Mustafa Ahmed al-Hawsawi (see Early-Late June, 2001), is also said to have mentioned him. [CNN, 12/13/2005] Alice Fisher, the deputy assistant attorney general for the Justice Department’s criminal division, says the department did not drop the criminal charges against al-Marri because the case was weak: “We are confident we would have prevailed on the criminal charges. However, setting the criminal charges aside is in the best interests of our national security.” The criminal charges—lying to banks, lying to the FBI, and credit card fraud—could have given al-Marri up to 60 years in prison and $1.75 million in fines. [CBS News, 6/23/2003]
Pleaded Not Guilty - Al-Marri’s lawyer Mark Berman says that his client pleaded not guilty to the criminal charges (see May 29, 2003), and the case was proceeding to trial. “I definitely got the sense they were reluctant to try the case in court,” Berman says. “They’d rather be in a forum where defendants aren’t represented by counsel.” Al-Marri’s wife and five children have left the US. The Saudi Arabian government granted the family passports in February, in spite of a State Department request not to issue the passports, as department officials wanted al-Marri’s wife, who is Saudi, to be available to the FBI for questioning. [Knight Ridder, 6/23/2003] Al-Marri’s lawyers say they are preparing a legal challenge to Bush’s decision. [Knight Ridder, 6/24/2003]

Entity Tags: US Department of Defense, US Department of State, Osama bin Laden, US Department of Justice, Mustafa Ahmed al-Hawsawi, John Ashcroft, Khalid Shaikh Mohammed, Al-Qaeda, Ali Saleh Kahlah al-Marri, Mark Berman, Alice Fisher, George W. Bush, Jose Padilla, Federal Bureau of Investigation, Yaser Esam Hamdi

Timeline Tags: Torture of US Captives, Complete 911 Timeline

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

The Supreme Court refuses to hear a petition to reopen the 1953 state secrets case US v Reynolds (see February 26, 2003). It issues a one-sentence ruling: “The motion for leave to file a writ of error coram nobis is denied.” Plaintiff Judy Palya Loether says: “Maybe the law isn’t about right or wrong. The concept that the government lied to the Supreme Court (see February 2000) seemed to me a terrible thing to do. It appears that the justices were not as appalled as I was.” Further attempts to reopen the case in lower courts will also fail. [Siegel, 2008, pp. 267-298]

Entity Tags: US Supreme Court, Judy Palya Loether

Category Tags: Impositions on Rights and Freedoms, Court Procedures and Verdicts, Government Classification, State Secrets

Historian Arthur Schlesinger, Jr. discusses the parameters of the Bush administration’s push towards a “unified executive” and “imperial presidency” in the Washington Post by quoting Abraham Lincoln’s concerns over pre-emptive war. In 1848, Lincoln denounced the proposition “that if it shall become necessary to repel invasion, the President may, without violation of the Constitution, cross the line, and invade the territory of another country; and that whether such necessity exists in given case, the President is to be the sole judge.” Lincoln continued, “Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion… and you allow him to make war at pleasure…. If to-day he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, ‘I see no probability of the British invading us’ but he will say to you ‘be silent; I see it, if you don’t.’ The Founding Fathers resolved to so frame the Constitution that not one man should hold the power of bringing this oppression upon us.” [Dean, 2004, pp. 181]

Entity Tags: Arthur M. Schlesinger, Bush administration (43), Abraham Lincoln

Category Tags: Expansion of Presidential Power

The Nevada State Legislature passes a law that automatically restores the right to vote to convicted felons. Felons who have completed their jail terms may also run for public office and serve as jurors in civil cases. Felons released from prison after July 1, 2003 may only receive reinstatement if they were convicted of a single, nonviolent felony such as a drug offense. Violent felons or those with multiple convictions must petition a court for reinstatement. [American Civil Liberties Union, 2008; ProCon, 10/19/2010]

Entity Tags: Nevada State Legislature

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

Senator John D. Rockefeller.Senator John D. Rockefeller. [Source: ViewImages.com]John D. Rockefeller (D-WV), the ranking member of the Senate Intelligence Committee, learns of the secret NSA warrantless wiretapping program against US citizens (see Early 2002) in a secret briefing for himself, the chairman of the committee, and the chairman and ranking member of the House Intelligence Committee. Hours later, Rockefeller sends a handwritten letter to Vice President Cheney expressing his concerns about the potential illegality of the program, concerns he apparently expressed in the briefing as well. Rockefeller will not release the letter publicly until December 19, 2005, four days after the New York Times publishes an article revealing the program’s existence (see December 15, 2005). Disturbed both by the information he was given and the information that was obviously being withheld, Rockefeller writes in part: “Clearly the activities we discussed raise profound oversight issues.… Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own [Cheney had prohibited Rockefeller and the three other lawmakers in the briefing from consulting with their staff experts], I feel unable to fully evaluate, much less endorse these activities. As I reflected on the meeting today, and the future we face, John Poindexter’s TIA [Total Information Awareness (see March 2002)] project sprung to mind, exacerbating my concern regarding the direction the administration is moving with regard to security, technology, and surveillance. Without more information and the ability to draw on any independent legal or technical expertise, I simply cannot satisfy lingering concerns raised by the briefing we received.” [Democratic Party, 12/19/2005; Savage, 2007, pp. 115] Rockefeller also notes that he is not at liberty to do anything about his concerns, since he is legally bound to obey the secrecy rules the White House has invoked, but he wants his concerns noted. [Savage, 2007, pp. 116] It is unclear whether Rockefeller ever receives a reply. Rockefeller is apparently unaware of evidence showing that domestic surveillance may have begun 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: New York Times, Richard (“Dick”) Cheney, John D. Rockefeller, John Poindexter, Total Information Awareness, National Security Agency

Category Tags: NSA Wiretapping / Stellar Wind

US Attorney Carol Lam of the Southern District of California (see November 8, 2002) receives a letter regarding her performance on a recent EARS (Evaluation and Review Staff) assessment performed by the Justice Department. Lam’s office scores significantly higher than the national average of US Attorneys’ offices in a cumularite review. All seven areas scored are rated high—receiving either a 4 or a 5 on a five-point scale. Lam’s office received “best practices” recognition in several areas, including office management. Lam is praised for her “proactive” work in implementing the department’s anti-terrorism policies, her vigorous pursuit of corporate fraud cases, and her office’s work to dismantle and disrupt gang organizations in her district. According to the report, her office’s “Coyote Prosecution Program, which targets alien smuggling foot guides, has been exceedingly successful.” And her office’s focus on technology-related crimes is appropriate for her district. [US House of Representatives, Committee on the Judiciary, 5/21/2007]

Entity Tags: Carol C. Lam, US Department of Justice

Category Tags: 2006 US Attorney Firings

Senior AT&T technician Mark Klein (see July 7, 2009), working near the National Security Agency (NSA)‘s “secret room” in the firm’s Folsom Street, San Francisco facility (see October 2003), receives two documents pertaining to the equipment in that secret room. (In a 2007 interview with PBS, Klein will cite a third document as well, that he found lying on top of a router.) The two documents are entitled “SIMS Splitter Cut-In and Test Procedure Issue 2, 01/12/03” and “SIMS Splitter Cut-In and Test Procedure OSWF Training Issue 2 January 24, 2002.” “OSWF” stands for “On-Site Work Force.” As for “SIMS,” all Klein knows is that it is an acronym associated with the secret room. Reading over the documents, Klein realizes that they indicate the secret room contains a “splitter cabinet,” installed in February 2003 (see February 2003), containing “optical splitters” that “cut in” to signals sent through 16 “Peering Links” between AT&T and 16 other major carriers and Internet exchange points. He later recalls: “I brought them back to my desk, and when I started looking at it, I looked at it more, and I looked at it more, and finally it dawned on me sort of all at once, and I almost fell out of my chair, because this showed, first of all, what they had done, that they had taken working circuits, which had nothing to do with a splitter cabinet, and they had taken in particular what are called peering links which connect AT&T’s network with the other networks. It’s how you get the Internet, right? One network connects with another. So they took 16 high-speed peering links which go to places like Qwest [Communications] and Palo Alto Internet Exchange and places like that.… These circuits were working at one point, and the documents indicated in February 2003 they had cut into these circuits so that they could insert the splitter so that they can get the data flow from these circuits to go to the secret room. So this data flow meant that they were getting not only AT&T customers’ data flow; they were getting everybody else’s data flow, whoever else might happen to be communicating into the AT&T network from other networks. So it was turning out to be like a large chunk of the network, of the Internet.” The documents, he later says, name “the circuit IDs… the companies they belong to… [and] the cut date. And they were all in February [2003], when they were cut into the splitter” (see February 2003). The 16 carriers include ConXion, Verio, XO, Genuity, Qwest, PAIX (Palo Alto Internet Exchange), Allegiance, Abovenet, Global Crossing, C&W, UUNET, Level 3, Sprint, Telia, PSINet, and MAE West (the Metropolitan Area Exchange for AT&T’s Western region). In plain English, the splitter in the NSA room is duplicating the electronic data being sent through AT&T’s equipment, and sending the duplicated signals somewhere else, presumably to NSA computers for later processing. Klein is given the documents by a veteran AT&T technician who is preparing to retire. Klein, in a casual conversation with the colleague who gave him the documents, remarks, “It seems obvious to me, given that the secret room is next to the 4ESS (see January 2003), that they’re listening to phone calls.” Klein’s colleague shakes his head and says: “No, Internet.… I’ll show you.” (In 2007 Klein will learn from a telecommunications expert that since AT&T was transferring its long-distance telephone traffic onto Internet fiber cables, the splitter was most likely picking up both telephone and Internet traffic.) Klein’s colleague shows him the cabinet containing the splitters. Klein later tells a reporter: “[T]here were optical splitters, which basically were connected by fiber-optic cable down to the secret room on the sixth floor.… The analogy I can give you, which most people are familiar with is, say you get cable TV in your living room and then want to watch all the channels you get in the living room, you want to get all those same channels in your bedroom. So they install on the cable what they call a splitter, which splits off all the signals, duplicates of the same signals which go to the bedroom.… What the splitter does is make a duplicate copy of all the signals going across the fiber-optic cables.… We’re talking about billions and billions of bits of data going across every second, right? And it’s going into the router, and it’s coming back from the routers in that office. So what they do with the splitter is they intercept that data stream and make copies of all the data, and those copies go down on the cable to the secret room.” Klein confirms from his colleague and from the documents that show the splitters are connected directly to the equipment in the secret room. [PBS Frontline, 5/15/2007; Klein, 2009, pp. 34-35]

Entity Tags: Genuity, UUNET, XO, Allegiance, Abovenet, AT&T, ConXion, Sprint/Nextel, Telia, Palo Alto Internet Exchange, MAE West, Level 3, Global Crossing, Mark Klein, National Security Agency, C&W, PSINet, Qwest

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

Babak Pasdar.Babak Pasdar. [Source: Bat Blue]Babak Pasdar, a computer security consultant for a wireless telecommunications carrier, leads a “Rapid Deployment” team to revamp the carrier’s security on its internal network. Pasdar discovers a so-called “Quantico Circuit”—a 45 megabit-per-second DS-3 line linking the carrier’s most sensitive network to an unnamed third party. When Pasdar inquires about the circuit, the carrier’s officials become uncommunicative. Wired News will later note that Quantico is the Virginia town that hosts the FBI’s electronic surveillance operations. Pasdar later writes in an affidavit: “The circuit was tied to the organization’s core network. It had access to the billing system, text messaging, fraud detection, Web site, and pretty much all the systems in the data center without apparent restrictions.” In 2008, Pasdar will come forward with the evidence (see March 6, 2008), leading observers to believe that the carrier was providing illegal access to its customers’ information to a US government agency, perhaps the FBI. Wired News will note that Pasdar’s allegations almost perfectly mirror similar allegations made against Verizon Wireless in a 2006 lawsuit (see January 31, 2006). [Wired News, 3/6/2008]

Entity Tags: Babak Pasdar, Wired News, Verizon Wireless

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

The Justice Department’s Office of Legal Counsel (OLC) delineates a method of replacing a US Attorney for up to 330 days without the designated attorney having to go through Senate confirmation. The memo was requested by the director of the Executive Office of US Attorneys (EOUSA), Guy Lewis. The OLC answers legal questions for the president and his appointees. The memo qualifies the method, saying that the appointee would still have to win Senate confirmation or be approved by a federal court in order to continue serving. The memo is entitled “Temporary Filling of Vacancies in the Office of United States Attorney.” It considers two federal laws governing how to fill vacancies temporarily in positions that ordinarily must be confirmed by the Senate. One law allows the president to designate an “acting” replacement for any such position to serve for 210 days. The other law, which applies to US Attorneys only, allows the attorney general to appoint an “interim” replacement for 120 days. The memo suggests using the two provisions in tandem—appointing a person as an acting US Attorney for 210 days and then reclassifying them as an interim US Attorney for 120 more days. In total, a person could use the two classifications to serve as US Attorney for almost a year without undergoing Senate confirmation. [US Department of Justice, 9/5/2003 pdf file; Boston Globe, 4/28/2007]

Entity Tags: US Department of Justice, Executive Office for US Attorneys (DOJ), Office of Legal Counsel (DOJ), US Senate, Guy Lewis

Category Tags: 2006 US Attorney Firings

Sheldon Bradshaw, a deputy assistant attorney general at the Justice Department’s Office of Legal Counsel (OLC), sends a memo to Roz Rettman of the Office of Management and Budget. The memo remains secret, but it concerns an unspecified piece of draft legislation. It is in response to a Freedom of Information Act Request for documents concerning the treatment of detainees. [ProPublica, 4/16/2009]

Entity Tags: Sheldon Bradshaw, Office of Legal Counsel (DOJ), Roz Rettman, Office of Management and Budget

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

Alabama Governor Bob Riley (R-AL) signs into law a bill that permits most Alabama citizens with felony convictions to apply to regain their right to vote. They cannot apply for reinstatement until after they complete their sentence. [American Civil Liberties Union, 2008; ProCon, 10/19/2010]

Entity Tags: Robert Renfroe (“Bob”) Riley

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

Justice Department officials generate a list of US Attorneys by judicial district, with basic information about each one (names and relative sizes of district: “small,” “medium,” or “large”). Some have handwritten annotations included. Most of the names will be redacted when the list is released to the House Judiciary Committee in April 2007, but the names of US Attorneys fired in 2006 (see March 10, 2006, December 7, 2006, and December 20, 2006) are included. Kevin Ryan of the Northern District of California has the following annotation: “tough district; don’t know if he’d fit in to the mix very well,” and another indecipherable phrase. Carol Lam of the Southern District of California is notated as “very independent.” The officials who generate and notate the list are not identified. [US House of Representatives, Committee of the Judiciary, 4/13/2007 pdf file]

Entity Tags: Carol C. Lam, House Judiciary Committee, Kevin Ryan, US Department of Justice

Category Tags: 2006 US Attorney Firings

The Justice Department posts on its Web site a heavily redacted copy of a report it had commissioned about its own record of racial diversity in the workplace. Half of the report’s 186 pages are censored, including the summary and conclusions. Russ Kick, the author and First Amendment activist who maintains the Web site “The Memory Hole,” downloads the report and realizes that he can digitally remove the redaction lines to read the report in its entirety. When he does so, he realizes that most of the redactions are to hide reports from minority lawyers at the department, who have filed numerous complaints claiming work conditions rife with “stereotyping, harassment, and racial tension.” When Kick posts the unredacted version of the Justice Department document, civil rights experts and Congressional Democrats accuse the department of trying to hide its findings to avoid culpability and negative publicity. But the department claims that the portions of the report that were redacted, including the conclusions, were “deliberative and predecisional,” and therefore legal to exclude under the Freedom of Information Act. [Russ Kick, 10/21/2003; Savage, 2007, pp. 105]

Entity Tags: US Department of Justice, Russ Kick

Category Tags: Impositions on Rights and Freedoms, Media Freedoms, Government Acting in Secret

A portion of the outer door of AT&T’s Folsom Street facility.A portion of the outer door of AT&T’s Folsom Street facility. [Source: Wired News]Senior AT&T technician Mark Klein (see July 7, 2009), newly assigned to the company’s Folsom Street facility in San Francisco, is tasked to work at the seventh floor “Internet room,” where AT&T manages much of its domestic Internet traffic. Klein is intensely curious about the National Security Agency’s “secret room” on the sixth floor (see January 2003). The NSA room has two doors, both labeled “641A,” and is in reality what Klein will later term “a room within a room,” with the outer room filled with ordinary “computer equipment for mundane corporate uses.” He does not know what is in the inner “secret” room. Klein will later write, “While working in the outer room, you could walk around three sides of the secret room, which I measured to be about 24 by 48 feet.” An outer door leads from Room 641A to the 4ESS switchroom, which AT&T uses to manage its long-distance telephone communications. The rooms are connected by “row after row of equipment and a tangle of cabling going up and across the ceiling.” Klein learns that the NSA room is sometimes called “the SIMS room,” an acronym of which no one seems to know the meaning. [PBS Frontline, 5/15/2007; Klein, 2009, pp. 32-34] Klein will later describe his job at the Folsom Street facility as working with the phone switch equipment on the sixth floor, “which handled the public’s telephone calls and was the workhorse of the phone system.… My main assignment was to oversee the Internet room, and that meant keeping it going. If there were any trouble calls, I had to answer them. If there’s any upgrading work to do, I had to either do it or arrange for others to do it in off hours. Just oversee the flow of work in the Internet room and watch things.” He also spends a tremendous amount of time on the seventh floor, “where the Internet room was.… That’s where there are a lot of Cisco routers, a lot of fiber-optic lines coming in and going out.” The Folsom Street facility serves the Bay Area as well as much of Western America. According to Klein: “There’s lots of Internet traffic, as you can imagine, that goes in and out of this office, probably hundreds of fiber-optic lines that go out, carrying billions—that’s billions with a ‘B’—billions of bits of data going in and out every second every day. So all the Web surfing you’re doing, whatever you’re doing on the Internet—the pictures, the video, the Voice over Internet—all that stuff’s going in and out of there. And then of course there’s also the traditional phone switch, which is doing what it’s been doing since before the Internet.… Handling millions and millions of phone calls, right. That’s its job.” [PBS Frontline, 5/15/2007]

Entity Tags: Mark Klein, AT&T, National Security Agency

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

“Enemy combatant” Yaser Esam Hamdi files a request to the Supreme Court to review his habeas case. [Petition for Writ of Certiorari. Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 10/1/2003 pdf file]

Entity Tags: Yaser Esam Hamdi

Timeline Tags: Torture of US Captives

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

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

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

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

The Office of Legal Counsel (OLC)‘s Nicholas Quinn Rosenkranz sends a classified memo to his boss, OLC chief Jack Goldsmith. The contents of the memo will remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo concerns the Geneva Conventions. [American Civil Liberties Union [PDF], 1/28/2009 pdf file]

Entity Tags: Geneva Conventions, American Civil Liberties Union, US Department of Justice, Office of Legal Counsel (DOJ), Nicholas Quinn Rosenkranz, Jack Goldsmith

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

Lawyers for accused terrorist Zacarias Moussaoui, battling to force the US government to allow them to depose other accused terrorists as part of their defense (see May 14, 2003), contact Jeff Almeida, the lawyer for the plaintiffs who sought to reopen the 1953 state secrets case US v Reynolds. They ask how his petition for coram nobis—a request for the court to “right a wrong”—went. Almeida tells them that the Court turned the petition down without comment (see June 23, 2003). Moussaoui’s lawyers tell Almeida that the government prosecutors were so reliant on Reynolds that “they had been waving it around the courtroom any chance they got.” Plaintiff Susan Brauner later says that she is glad Moussaoui’s lawyers contacted Almeida, and says she finds their interest “most encouraging.” She will add, “If we eventually walk away with nothing more than one concrete example where the case was of possible use to someone else… then I will believe we have done some good in impacting or at least raising the issue.” [Siegel, 2008, pp. 272-273]

Entity Tags: Zacarias Moussaoui, US Supreme Court, Jeff Almeida, Susan Brauner

Category Tags: Impositions on Rights and Freedoms, Court Procedures and Verdicts, Government Classification, State Secrets

Congress passes a law that states US officials in Iraq cannot prevent an inspector general for the Coalition Provisional Authority from carrying out any investigation. The inspector general will inform Congress if officials refuse to cooperate with his inquiries. President Bush issues a signing statement directly contradicting the law. According to Bush’s statement, the inspector general “shall refrain” from investigating anything involving sensitive plans, intelligence, national security, or anything already being investigated by the Pentagon. The inspector cannot tell Congress anything if the president decides that disclosing the information would impair foreign relations, national security, or executive branch operations. [Boston Globe, 4/30/2006]

Entity Tags: Coalition Provisional Authority, George W. Bush

Category Tags: Expansion of Presidential Power, Signing Statements

Narus logo.Narus logo. [Source: Endace (.com)]Narus, a firm which manufactures telecommunications hardware, co-sponsors a technical conference in McLean, Virginia, titled “Intelligence Support Systems for Lawful Interception and Internet Surveillance.” As AT&T engineer Mark Klein (see July 7, 2009) will later write: “Police officials, FBI and DEA agents, and major telecommunications companies eager to cash in on the ‘war on terror’ had gathered in the hometown of the CIA to discuss their special problems. Among the attendees were AT&T, BellSouth, MCI, Sprint, and Verizon. Narus founder Dr. Ori Cohen gave a keynote speech.” Also speaking at the conference is William Crowley, the former deputy director of the National Security Agency (NSA). Narus is providing some of the key hardware components used in the NSA’s domestic surveillance program (see January 16, 2004). [PBS Frontline, 5/15/2007; Klein, 2009, pp. 39]

Entity Tags: Narus, AT&T, BellSouth, Mark Klein, Ori Cohen, Verizon Wireless, National Security Agency, MCI, Sprint/Nextel, William Crowley

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

The head of the Justice Department’s Office of Legal Counsel (OLC), Jack Goldsmith, and OLC lawyer Robert Delahunty, send a classified memo to the Defense Department. The contents of the memo remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo concerns the Geneva Conventions as they apply to the treatment of detainees in US custody. Presumably, the memo is in reference to previous legal advice submitted to Goldsmith by an OLC attorney-adviser regarding Geneva (see October 31, 2003). [American Civil Liberties Union [PDF], 1/28/2009 pdf file; ProPublica, 4/16/2009]

Entity Tags: US Department of Defense, Office of Legal Counsel (DOJ), American Civil Liberties Union, Geneva Conventions, Jack Goldsmith, US Department of Justice, Robert J. Delahunty

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

General Tommy Franks, the commander of US forces in Iraq, says he would favor replacing America’s democracy with a military-run government in the event of another 9/11-level terrorist attack. “It would begin to unravel the fabric of our Constitution,” he says, “and under those circumstances I would be open to the idea that the Constitution could be scrapped in favor of a military form of government.” [Hunt, 9/1/2009, pp. 13]

Entity Tags: Thomas Franks

Category Tags: Impositions on Rights and Freedoms, Government Acting in Secret

Senior AT&T technician Mark Klein (see July 7, 2009), working at the company’s Folsom Street facility in San Francisco one floor above the National Security Agency’s “secret room” monitoring the company’s Internet communications (see October 2003 and Fall 2003), is given a technical document to pass on to the secret room’s AT&T supervisor, a man Klein will identify only as “Ski” (see Summer 2002 and January 2003). Klein flips through the non-classified document, titled “Study Group 3 LGX/Splitter Wiring San Francisco Issue 1 12/10/02.” (LGX, Klein will later explain, refers to “Lucent LightGuide patch panels.”) He finds the document astonishing. It confirms, he will later write, “that the splitter cabinet in the 7th floor Internet room [his workstation] was directly connected to panels in the 6th floor secret room, which was referred to as the ‘SG3 Secure Room.’” Documents he has previously read (see Fall 2003) “made repeated references to the ‘Splitter,’ ‘Splitter Cabinet,’ or other descriptions which made it clear that the three documents were linked together.” Klein deduces that “SG3” stands for “Study Group 3,” an appellation he will write was chosen in “an apparent attempt to make a sinister operation look innocent.” And, since San Francisco is the site of the third study group, he deduces there must be at least two other study groups, presumably in different cities, “a fact,” he will write, “which was soon confirmed to me. I had a hand on only one small part of a giant octopus.” Klein pores more closely over the documents to try to learn exactly what AT&T and the NSA are doing, and soon finds a reference to a “Narus STA 6400.” He has no idea what this piece of equipment is, but he quickly learns that it is, as he will write, “a very sophisticated and specialized product that not only was perfectly suited for sorting through the data stream in real time looking for things, but… was already being marketed specifically to telecommunications and other companies for intelligence and police spying.” [AT&T, 12/10/2002; AT&T, 1/13/2003; AT&T, 1/24/2003; Klein, 2009, pp. 35-37] Later, Klein will describe the Narus STA 6400 as “not only designed for high-speed sifting through high-speed volumes of data, looking for something according to various program algorithms, something you’d think would be perfect for a spy agency.” [PBS Frontline, 5/15/2007]

Entity Tags: National Security Agency, “Ski” (AT&T field support specialist), AT&T, Mark Klein

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

The Bush administration reverses a long-standing policy requiring FBI agents to destroy their files on innocent US citizens, residents, and companies after investigations are closed. This information is now being put in government data banks to be shared with other agencies. [Washington Post, 11/6/2005]

Entity Tags: Federal Bureau of Investigation, Bush administration (43)

Category Tags: Other Legal Changes, Impositions on Rights and Freedoms

Senior AT&T technician Mark Klein (see July 7, 2009), who is considering “blowing the whistle” on the National Security Agency’s secret data-mining operation being conducted with the complicity and participation of AT&T (see January 16, 2004), is troubleshooting a problem of “signal loss” caused by AT&T’s signals being routed through the NSA’s “splitter cabinet,” which “splits” part of the optical data flow from its normal route into the NSA’s computers, enabling the agency to monitor all of the Internet traffic going through Klein’s Folsom Street, San Francisco, facility (see October 2003). Klein learns from a fellow technician that AT&T is “getting the same problem in the other offices where splitters are going in.” Klein is stunned to learn that other AT&T facilities have NSA splitters. He learns from the other technician that the “other offices” are in, among other places, Atlanta, San Diego, San Jose, and Seattle. (Apparently neither Klein nor the other technician are aware of the NSA splitter at the central AT&T facility in Bridgeton, Missouri—see Late 2002-Early 2003). Klein will later write, “This thing was getting bigger and bigger.” Klein determines that the NSA splitter is causing the signal loss: “The company was degrading the signal quality of its network for the sake of the NSA.”
Visiting the Secret Room - Klein accompanies an AT&T field support specialist named Rick into the NSA’s “secret room” at the Folsom Street building, with the intention of repairing the splitter problem. Rick is one of the few AT&T technicians authorized to work in the room; he invites Klein to join him and Klein agrees. Klein watches Rick punch the entry code into the lock of Room 641A and follows him inside. Klein observes a large amount of hardware, most installed in what he will later call “standard cabinets used by the telecommunications industry,” along with a computer workstation and a set of storage lockers. Klein later says he spends no more than two minutes inside the secret room. He will recall: “[I]f I didn’t know that the NSA was involved, it would look like any other work space where telecom people work, with rows of cabinets with equipment inside them, humming.… [T]he odd thing about the whole room, of course, was that I couldn’t normally get in there, nor could any of the other union technicians. Only this one guy who had clearance from the NSA could get in there, so that changed the whole context of what this is about.” Shortly thereafter, Rick tells Klein and a group of employees that he has keys allowing him access to the other NSA secret rooms in AT&T’s offices in San Diego, San Jose, and Seattle. [PBS Frontline, 5/15/2007; Klein, 2009, pp. 42-44]

Entity Tags: AT&T, “Rick” (AT&T field support specialist), Mark Klein, National Security Agency

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

The new head of the Justice Department’s Office of Legal Counsel (OLC), Jack Goldsmith, begins an internal review of the legality of the NSA’s warrantless wiretapping program (see December 15, 2005). The program is kept so secret that only four Justice officials even have access to information about its inner workings, a pattern of poor consultation he will call “the biggest legal mess I have ever encountered” when he testifies to the Senate about the program four years later (see October 2, 2007). Neither Attorney General John Ashcroft nor Justice’s top legal counsel know much about the program. When Goldsmith begins his legal review, the White House initially refuses to brief Deputy Attorney General James Comey about it. Goldsmith later testifies that he cannot find “a legal basis for some aspects of the program.” Upon completing the review, Goldsmith declares the program illegal, with the support of Ashcroft and Comey. However, White House officials are irate at Goldsmith’s findings. [Washington Post, 10/20/2007]

Entity Tags: Alberto R. Gonzales, Bush administration (43), Office of Legal Counsel (DOJ), US Department of Justice, John Ashcroft, James B. Comey Jr., Jack Goldsmith, National Security Agency

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

Quiet opposition builds within the Justice Department against the White House’s attacks on civil liberties and governmental process in the name of national security. The opposition is led by James Comey, the deputy attorney general under John Ashcroft, and includes the chief of the Office of Legal Counsel, Jack Goldsmith, and other like-minded Justice Department lawyers and officials. Comey, Goldsmith, and many of their colleagues will resign from their posts, some perhaps pressured by the White House to get out without making a fuss (see June 17, 2004). Comey and Goldsmith are the point men of this opposition group, though they will speak little in public about their experiences until they testify before the Senate in 2007 (see May 15, 2007 and October 2, 2007).
Standing 'Up to the Hard-Liners' - Newsweek, one of the only mainstream media outlets to report on this “insurrection” at any length, will call it “one of the most significant and intriguing untold stories of the war on terror.” The magazine will report in 2006: “These Justice Department lawyers, backed by their intrepid boss Comey, had stood up to the hard-liners, centered in the office of the vice president, who wanted to give the president virtually unlimited powers in the war on terror. Demanding that the White House stop using what they saw as far-fetched rationales for riding rough-shod over the law and the Constitution, Goldsmith and the others fought to bring government spying and interrogation methods within the law.… These government attorneys did not always succeed, but their efforts went a long way toward vindicating the principle of a nation of laws and not men.” Comey, Goldsmith, and their colleagues do not oppose the war on terror in principle, and share the administration’s concerns about the restraints imposed on the government in compiling intelligence on suspected terrorists. Their opposition centers on the process used by the White House, which routinely ignores and runs over Congress, the judiciary, and the law in implementing its agenda.
White House Denial - The White House will continue to deny that this opposition group ever existed, with a spokeswoman for Vice President Dick Cheney saying in 2006: “The proposition of internal division in our fight against terrorism isn’t based in fact. This administration is united in its commitment to protect Americans, defeat terrorism and grow democracy.” [Newsweek, 2/6/2006]

Entity Tags: US Department of Justice, John Ashcroft, Office of Legal Counsel (DOJ), James B. Comey Jr., Jack Goldsmith, Bush administration (43), Richard (“Dick”) Cheney

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

US Attorney Paul Charlton of Arizona (see November 14, 2001) does well in his first Evaluation and Review Staff (EARS) evaluation by the Justice Department. His evaluation states in part that Charlton is “well respected by USAO [the US Attorney’s Office] staff, investigative and civil client agencies, [the] local law enforcement community, [the] Native American Nations, and [the] judiciary regarding his integrity, professionalism, and competence.” The only criticism of Charlton is a note that says his adherence to a chain of command structure in the office has “led to a perception by some that he is inaccessible” and “not open to suggestions or criticism.” [Iglesias and Seay, 5/2008, pp. 162; US Department of Justice, Office of the Inspector General, 9/29/2008] An earlier review of the EARS data from the Executive Office for US Attorneys noted that Charlton’s district scored “considerably higher” than the national average of US Attorneys’ offices in its cumulative scores. Charlton received praise for his work with the anti-terrorism task force and several areas where “best practices” for US Attorneys’ offices throughout the nation were noted. [US House of Representatives, Committee on the Judiciary, 5/21/2007]

Entity Tags: Paul K. Charlton, Executive Office for US Attorneys (DOJ), US Department of Justice

Category Tags: 2006 US Attorney Firings

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

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

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

White House counsel Alberto Gonzales contacts John Carlin, archivist of the United States, and asks him to step down, but does not provide reasons for the request. “The administration would like to appoint a new archivist,” Gonzales reportedly says. No reason is given, even after Carlin asks why he should leave. Some critics will suggest that Carlin’s removal is connected to President Bush’s Executive Order 13233 limiting access to presidential records. The records of former President George H. W. Bush, the father of the current president, were due to be released in January 2005. Incoming archivist Allen Weinstein will later note that he met with the director of presidential personnel, Dina Powell, on September 23, 2003, and was asked to submit investigative forms to the White House and the FBI in November and December. Weinstein will also note that although he professed distaste for President Bush’s executive order, he “would feel obliged to defend the order against a lawsuit by the American Historical Association seeking to overturn it.” [Washington Post, 6/26/2004]

Entity Tags: John William Carlin, Allen Weinstein, Dina Powell, Alberto R. Gonzales

Category Tags: Other

The Supreme Court rules in the case of McConnell v. Federal Election Commission. The case addresses limitations on so-called “soft money,” or contributions to a political party not designated specifically for supporting a single candidate, that were imposed by the Bipartisan Campaign Reform Act of 2002 (BCRA), often known as the McCain-Feingold law after its two Senate sponsors (see March 27, 2002). A three-judge panel has already struck down some of McCain-Feingold’s restrictions on soft-money donations, a ruling that was stayed until the Court could weigh in. Generally, the Court rules that the “soft money” ban does not exceed Congress’s authority to regulate elections, and does not violate the First Amendment’s free speech clause. The ruling is a 5-4 split, with the majority opinion written by liberal Justice John Paul Stevens and his conservative colleague Sandra Day O’Connor. The opinion finds that the “minimal” restrictions on free speech are outweighed by the government’s interest in preventing “both the actual corruption threatened by large financial contributions and… the appearance of corruption” that might result from those contributions. “Money, like water, will always find an outlet,” the justices write, and the government must take steps to prevent corporate donors from finding ways to subvert the contribution limits. The majority is joined by liberal justices Stephen Breyer, Ruth Bader Ginsburg, and David Souter, and the four other conservatives on the court—Anthony Kennedy, William Rehnquist, Antonin Scalia, and Clarence Thomas—dissent. [Legal Information Institute, 12/2003; Oyez (.org), 2011] The case represents the consolidation of 11 separate lawsuits brought by members of Congress, political parties, unions, and advocacy groups; it is named for Senator Mitch McConnell, who sued the FEC on March 27, 2002, the same day the bill was signed into law. Due to the legal controversy expected to be generated by the law and the need to settle it prior to the next federal election, a provision was included in the BCRA that provided for the case to be heard first by a special three-judge panel and then appealed directly to the Supreme Court. This District of Columbia district court panel, comprised of two district court judges and one circuit court judge, was inundated with numerous amicus briefs, almost 1,700 pages of related briefs, and over 100,000 pages of witness testimony. The panel upheld the BCRA’s near-absolute ban on the usage of soft money in federal elections, and the Supreme Court agrees with that finding. However, the Court reverses some of the BCRA’s limitations on the usage of soft money for “generic party activities” such as voter registration and voter identification. The district court overturned the BCRA’s primary definition of “noncandidate expenditures,” but upheld the “backup” definition as provided by the law. Both courts allow the restrictions on corporate and union donations to stand, as well as the exception for nonprofit corporations. The Court upholds much of the BCRA’s provisions on disclosure and coordinated expenditures. The lower court rejected the so-called “millionaire provisions,” a rejection the Supreme Court upholds. A provision banning contributions by minors was overturned by the lower court, and the Court concurs. The lower court found the provision requiring broadcasters to collect and disclose records of broadcast time purchased for political activities unconstitutional, but the Court disagrees and reinstates the requirement. [Legal Information Institute, 12/2003] McConnell had asked lawyer James Bopp Jr., a veteran of anti-campaign finance lawsuits and the head of McConnell’s James Madison Center for Free Speech, to take part in the legal efforts of the McConnell case. However, before the case appeared before the Supreme Court, McConnell dropped Bopp from the legal team due to a dispute over tactics. [New York Times, 1/25/2010] The 2010 Citizens United decision will partially overturn McConnell (see January 21, 2010).

Entity Tags: Federal Election Commission, David Souter, Bipartisan Campaign Reform Act of 2002, Antonin Scalia, Anthony Kennedy, William Rehnquist, US Supreme Court, Stephen Breyer, Sandra Day O’Connor, National Rifle Association, Mitch McConnell, John Paul Stevens, Ruth Bader Ginsburg, James Bopp, Jr, Clarence Thomas

Category Tags: Campaign Finance, Court Procedures and Verdicts

Six lawyers and two analysts at the US Department of Justice (DOJ) conclude, in a classified memo, that the controversial Texas Congressional redistricting plan headed by Representative Tom DeLay (R-TX—see 2002-2004) is illegal. The memo states that the plan violates the Voting Rights Act (VRA—see August 6, 1965, 1970, 1975, April 22, 1980, and June 29, 1989) by illegally diluting African-American and Hispanic voting power in two Congressional districts. The plan also eliminated several other districts that contained substantial minority voting blocs. Texas Republicans knew the plan would likely be found to be discriminatory, the lawyers write in the memo. The memo says that the Texas legislature went ahead with the plan anyway because it would maximize the number of Republicans the state would send to Congress. The memo concludes, “The State of Texas has not met its burden in showing that the proposed Congressional redistricting plan does not have a discriminatory effect.” A concurring opinion written by one of the DOJ lawyers finds: “This result quite plainly indicates a reduction in minority voting strength. The state’s argument that it has increased minority voting strength… simply does not stand up under careful analysis.”
DeLay, Aide Ignored Concerns about Voting Rights Discrimination - One of the senior aides to DeLay, James W. Ellis, is cited in the memo as pushing for the plan despite fears that the DOJ would reject it. According to the memo, Ellis and other DeLay aides forced the adoption of the plan over two other versions adopted by the Texas Legislature that would not have raised as many concerns about voting rights discrimination. The memo quotes Ellis in an October 2003 memo writing: “We need our map, which has been researched and vetted for months. The pre-clearance and political risks are the delegation’s and we are willing to assume those risks, but only with our map.” Later testimony will show that DeLay and Ellis forced last-minute changes in the map; DeLay attended many of the meetings that produced the map, and Ellis worked through the state’s lieutenant governor and a state senator to shepherd the changes that he and DeLay desired. The final changes were not necessary, the memo finds, except to advance partisan political goals.
Findings Overruled - Regardless of the findings, the lawyers and analysts’ judgment is overruled by senior officials at the DOJ, all appointed by the Bush administration. The DOJ’s civil rights division will affirm the plan as legal and valid. The memo is kept secret for almost two years, and the lawyers and analysts involved in the case, including the authors of the memo, are bound to silence under an unusual gag rule. The DOJ is under no legal burden to accept the findings of the memo, but historically, such findings are given great weight in DOJ rulings. Former Justice Department lawyer Mark Posner later says that it is “highly unusual” for the DOJ to overrule a unanimous finding such as this one: “In this kind of situation, where everybody agrees at least on the staff level… that is a very, very strong case. The fact that everybody agreed that there were reductions in minority voting strength, and that they were significant, raises a lot of questions as to why it was” approved. [US Department of Justice, 12/12/2003 pdf file; Washington Post, 12/2/2005] In December 2005, the Washington Post will reveal the existence of the memo (see December 2, 2005). Days after the Post article, Posner will write an article for the prestigious legal Web site FindLaw that will opine that the DOJ memo was ignored for partisan political reasons, and not because of honest differences of opinion between legal experts (see December 5, 2005).

Entity Tags: Texas State Legislature, Civil Rights Division (DOJ), Mark Posner, Voting Rights Act of 1965, James W. Ellis, US Department of Justice, Washington Post, Tom DeLay

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

The US Supreme Court agrees to hear Vice President Cheney’s appeal of a lower court ruling that found he must reveal documents pertaining to his 2001 energy task force (the National Energy Policy Development Group—see January 29, 2001 and May 16, 2001). Cheney lost the case, filed by the conservative government watchdog group Judicial Watch and the environmentalist organization the Sierra Club, in two lower courts, and has ramrodded the case into the Supreme Court with unusual alacrity—filing the Supreme Court appeal even before the appeals court had finished the case. Cheney’s lawyers from the Justice Department will argue that because of the Constitutional provision of separation of powers, the executive branch can and should keep all such information secret if it so chooses. Judicial Watch and the Sierra Club insist that because energy executives and lobbyists were involved in the task force policy deliberations, federal law mandates that lists of participants and details of the meetings should be made public. Over a year ago, District Court Judge Emmet Sullivan ruled that the White House should either turn over the documents or provide a detailed list of the documents it was withholding, and explain why. The White House has done neither, and instead appealed the decision. The US Court of Appeals refused to overturn Sullivan’s decision and ruled that Cheney had no legal standing to refuse the judicial order. Cheney disagreed, and appealed to the Supreme Court. The Court will hear arguments in the spring of 2004 (see April 27, 2004). Thousands of documents concerning the task force from the Department of Energy, the Environmental Protection Agency, and other federal agencies have already been turned over (see July 17, 2003), but no White House documents have been released. The Sierra Club has accused the Bush administration of trying to delay release of the information until after the November 2004 presidential elections. [Reuters, 12/15/2003]

Entity Tags: US Supreme Court, US Department of Justice, Sierra Club, Environmental Protection Agency, Emmet Sullivan, Bush administration (43), US Department of Energy, Judicial Watch, Richard (“Dick”) Cheney, National Energy Policy Development Group

Timeline Tags: US Environmental Record

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

A three-judge panel of the Second US Circuit Court of Appeals in New York votes two to one that the military must either charge alleged al-Qaeda terrorist Jose Padilla with a crime, or release him within 30 days. “The government,” the court says, “can transfer Padilla to appropriate civilian authorities who can bring criminal charges against him.” Until now, no court in the US has ruled against the government’s contention that even American citizens arrested on US soil can be held indefinitely based on wartime government prerogatives. Neither the 2001 Authorization to Use Military Force (see September 14-18, 2001) nor the president’s “inherent power” as commander in chief is enough to hold Padilla without a trial, the court finds: “The president, acting alone, possesses no inherent constitutional authority to detain American citizens seized within the United States, away from a zone of combat, as enemy combatants.” The two judges in the majority are a 1998 Clinton appointee and a 2001 Bush appointee; the dissenter, who advocates granting the president new and sweeping powers, is a 2003 Bush appointee. “So far,” Office of Legal Counsel lawyer John Yoo comments, “the Second Circuit is the only court that has rejected the idea that the war on terrorism is, in fact, a war.” Because this ruling conflicts with the Fourth Circuit’s ruling in favor of the Bush administration, the Supreme Court will be forced to resolve the issue (see June 28, 2004); in light of the appeal, the court later agrees to suspend its 30-day ruling. [Knight Ridder, 12/29/2003; Savage, 2007, pp. 153]

Entity Tags: Jose Padilla, John C. Yoo

Timeline Tags: Torture of US Captives

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

The US government issues a terror alert, based on intelligence that hints at a potential attack somewhere in Las Vegas for New Year’s Eve. The FBI quickly assembles data on most of the 1 million “potential suspects,” which includes all tourists staying in Vegas for the holidays, and examines records on every hotel guest, car and truck rentals, guest lists for casinos, storage leases, and airplane travel. Those records are combed for any possible connections to terrorist organizations. When the city’s hospitality industry begins balking at the sweeping nature of the FBI’s information requests, National Security Letters (NSLs) are used to force industry officials to produce the data. Everything swept up by the Vegas data search remains in FBI databases. The terror alert will end on January 10, 2004, with no information about any terrorist actions or possible suspects located. [Washington Post, 11/6/2005]

Entity Tags: National Security Letters, Federal Bureau of Investigation

Timeline Tags: Complete 911 Timeline

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

Instead of reporting the names or even the numbers of staffers in the Office of the Vice President (OVP), the office provides the following information for the federal government’s official staff directory, nicknamed the “Plum Book:” “The Vice Presidency is a unique office that is neither a part of the executive branch nor a part of the legislative branch, but is attached by the Constitution to the latter. The Vice Presidency performs functions in both the legislative branch (see article I, section 3 of the Constitution) and in the executive branch (see article II, and amendments XII and XXV, of the Constitution, and section 106 of title 3 of the United States Code). The… legislative branch… and the annual transportation-treasury appropriations act… provide funds for the Vice President to hire employees to assist him in carrying out his legislative and executive functions. Executive branch employees also may be assigned or detailed to the Vice President… . The Office of the Vice President (OVP) consists of the aggregation of Vice Presidential employees whose salary is disbursed by the Secretary of the Senate from the Vice President’s legislative appropriation, Vice Presidential employees employed with the Vice President’s executive appropriation, employees assigned or detailed to the Vice President, and consultants engaged by the Vice President. The numbers, titles and salaries of OVP personnel change with some frequency.” [Government Printing Office, 2004 pdf file]

Entity Tags: Office of the Vice President

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

FISC Presiding Judge Colleen Kollar-Kotelly.FISC Presiding Judge Colleen Kollar-Kotelly. [Source: Washington Post]James Baker, counsel for intelligence policy in the Justice Department’s Office of Intelligence Policy and Review (no relation to the former Secretary of State James A. Baker), informs the Foreign Intelligence Surveillance Court (FISC) that the government has, at least twice, improperly used excluded evidence from NSA domestic wiretaps to obtain warrants from FISC. Colleen Kollar-Kotelly, the senior FISC judge, is angered by this as both she and her predecessor, Royce Lambeth, have insisted that no evidence obtained from warrantless wiretaps can be used to obtain warrants for further surveillance from FISC. The Justice Department assured them that the administration would never attempt to secure warrants in such a manner. By using the excluded information, the Justice Department rendered useless the federal screening system put in place to keep such evidence from reaching FISC, which did not want to receive it due to the questionable legality of the domestic surveillance program (see December 15, 2005). Kollar-Kotelly’s complaint about the use of tainted evidence results in a brief suspension of the NSA wiretapping program. But the practice will continue (see 2005). [Washington Post, 2/9/2006]

Entity Tags: US Department of Justice, James Baker, Foreign Intelligence Surveillance Court, National Security Agency, Office of Intelligence Policy and Review, Bush administration (43), Royce Lambeth, Colleen Kollar-Kotelly

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

Though the issue of abuse of National Security Letters (NSLs) has become an issue of concern for many civil libertarians and constitutional scholars (see October 25, 2005 and January 2004), Congress fails to conduct any meaningful oversight on their use and abuse. Pat Roberts (R-KS), the chairman of the Senate Intelligence Committee, says that the use of NSLs by the FBI is perfectly legal, “non-intrusive,” and “crucial to tracking terrorist networks and detecting clandestine intelligence activities.” The FBI provides enough information to Congress in “semi-annual reports [that] provide the committee with the information necessary to conduct effective oversight,” he says. Roberts is referring to the Justice Department’s classified statistics, which have only been provided three times in four years, and give no specific information about the NSLs. The Justice Department has repeatedly refused requests by committee members for a sampling of actual NSLs, a description of their results, or an example of their contribution to a particular case. In 2004, the Senate asks the Attorney General to “include in his next semiannual report” a description of “the scope of such letters” and the “process and standards for approving” them. The Justice Department fails to do so, or even to reply to the request. Representative Zoe Lofgren (D-CA), a House Judiciary Committee member, says that congressional Democrats have little recourse: “The minority has no power to compel, and… Republicans are not going to push for oversight of the Republicans. That’s the story of this Congress.” The Justice Department notes that its inspector general, Glenn Fine, has not reported any abuses of the NSLs, but those reports beg the question: how can citizens protest searches of their personal records if they are never notified about such searches? Fine says, “To the extent that people do not know of anything happening to them, there is an issue about whether they can complain. So, I think that’s a legitimate question.” [Washington Post, 11/6/2005]

Entity Tags: Zoe Lofgren, US Department of Justice, Pat Roberts, Federal Bureau of Investigation, Glenn Fine, Senate Intelligence Committee, House Judiciary Committee, National Security Letters

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

An unidentified US telecommunications firm refuses to turn over its phone records to the government as part of a joint program by the NSA and the Drug Enforcement Agency to combat Latin American drug-trafficking that has been going on since the 1990s (see 1990s). The firm believes the administrative subpoenas issued for its information by the Justice Department are overly broad, and that it fears the public relations and legal backlashes it might suffer if the public were to learn of its cooperation. [New York Times, 12/16/2007]

Entity Tags: National Security Agency, US Department of Justice, Drug Enforcement Administration

Category Tags: Government Acting in Secret, Government Classification, Database Programs

At the urging of US Attorney John McKay (see October 24, 2001), the Naval Criminal Investigative Service (NCIS) agrees to fund an information database system that will become known as the Northwest Law Enforcement Information Exchange (LInX). The database is intended to let local, state, and federal law enforcement agencies share information. McKay has the support of Deputy Attorney General James Comey, who has the power to direct Justice Department agencies to share their records with the project. When McKay explains the project to Comey, Comey envisions the project being used as part of the “OneDOJ” initiative to persuade Justice Department law enforcement agencies to share information with one another and with state and local law enforcement. Comey will call McKay a “visionary” concerning information sharing, and supports McKay’s efforts wholeheartedly. [US Department of Justice, Office of the Inspector General, 9/29/2008]

Entity Tags: Law Enforcement Information Exchange, John L. McKay, Naval Criminal Investigative Service, James B. Comey Jr., US Department of Justice

Category Tags: 2006 US Attorney Firings

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

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

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

The FBI begins compiling a database of information about US citizens (see October 25, 2005). The database, ordered by Attorney General John Ashcroft, uses as one of its primary sources information gleaned through so-called “National Security Letters,” or NSLs, which are documents ordering US citizens to reveal private information about their clients, relatives, or employees. Ashcroft overrides a 1995 guideline that mandates the destruction of such information obtained through NSLs if it proves “not relevant to the purposes for which it was collected.” Ashcroft orders the FBI to compile the information in its database, and even tells the agency that it can freely share that information with other government agencies if it desires. Ashcroft also orders the FBI to develop “data mining” technology to probe for “hidden links” among the citizens in its growing cache of electronic data. The FBI complies, using the same technology used by the CIA, which itself is barred from keeping such files on US citizens. Ashcroft extends the mandate even further, allowing the FBI to compile consumer data from private data-collection firms such as ChoicePoint and LexisNexis, though Ashcroft’s predecessors had ruled that compiling such data would violate citizens’ constitutional rights to privacy. Soon, FBI field offices will have access to ChoicePoiint databases in their squad rooms. Adding this commercially provided data to the NSL-based data gleaned by the FBI, and the FBI will soon have a wealth of data on hundreds of thousands of US citizens never accused of a crime. Former Republican congressman Bob Barr, and many others, strenuously object to the practice, but their concerns are largely ignored. [Washington Post, 11/6/2005]

Entity Tags: Robert “Bob” Barr, LexisNexis, Federal Bureau of Investigation, National Security Letters, John Ashcroft, ChoicePoint

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

The Environmental Protection Agency (EPA) publishes a proposed new rule, part of the Bush administration’s Clear Skies Initiative, that will ostensibly tighten regulations on allowable limits of mercury in the air. Studies show that even small amounts of mercury exposure to unborn children cause severe cognitive and developmental problems. Coal-fired plants are by far the largest emitters of mercury. But when the new regulations are actually established, they allow the coal industry to keep pumping huge amounts of mercury into the atmosphere for decades to come. It is later learned that Bush administration political appointees had pasted language into the regulations that was written by industry lobbyists. Five EPA scientists later say that the EPA had ignored the recommendations of professional staffers and an advisory panel in writing the rule. The rule, critics say, will delay reductions in mercury levels for decades, while saving the power and coal industry billions of dollars. The Bush administration chose a process that, according to Republican environmental regulator John Paul, “would support the conclusion they wanted to reach.” The panel’s 21 months of work on the issue was entirely ignored. Bruce Buckheit, the former director of the EPA’s air enforcement division, says: “There is a politicization of the work of the agency that I have not seen before. A political agenda is driving the agency’s output, rather than analysis and science.” Russell Train, who headed the EPA during the Nixon and Ford administrations, calls the action “outrageous.” [Los Angeles Times, 3/16/2004; Savage, 2007, pp. 302-303]

Entity Tags: Russell Train, Bruce Buckheit, Bush administration (43), Environmental Protection Agency

Timeline Tags: US Environmental Record

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

Jack Goldsmith, the embattled head of the Justice Department’s Office of Legal Counsel (OLC) (see October 6, 2003), finds himself again mired in a conflict with Vice President Dick Cheney’s hardline chief aide, David Addington. Goldsmith has already fought with Addington over Goldsmith’s decision to withdraw the OLC’s support for the administration’s memos justifying torture (see December 2003-June 2004). Now Goldsmith and Addington are at odds over the policies governing the detention and trial of suspected terrorists. The spark for this conflict is the January 2004 Supreme Court decision to review the detention of US citizen and suspected “enemy combatant” Yaser Esam Hamdi (see January 9, 2004). Goldsmith suggests going to Congress to have that body pass legislation declaring such detention legal, reasoning that the Supreme Court would be less likely to rule against the administration if Congress had authorized such detention policies. Addington, who like his boss does not accept the idea that Congress has any business interfering in such policy decisions, refuses to countenance the idea, and Goldsmith’s proposal goes nowhere. In June 2004, the Supreme Court approves the detention policies but put modest legal restrictions on the administration’s ability to detain citizens without trial. Goldsmith, this time with deputy solicitor general Paul Clement, again suggests going to Congress; once again, Addington refuses. The White House, Goldsmith later says, continues to operate as if it could avoid any adverse decisions from the Supreme Court. When the Court issues its decision in the Hamdan case (see November 8, 2004), rejecting the administration’s policy of trying terror suspects in military tribunals without Congressional approval, and upholding the preeminence of the Third Geneva Convention in protecting the rights of accused terror detainees—including al-Qaeda suspects—the decision has a shattering effect on the Bush administration’s legal arguments towards detaining and trying those suspects. Goldsmith believes the Court’s decision is “legally erroneous” but has huge political consequences. Now detainees at Guantanamo Bay have more legal rights than ever before, and for the first time, the specter of war-crimes charges against Bush officials becomes a real possibility. Goldsmith later says that it is in these arguments, more than in the battles over domestic wiretapping or interrogation techniques, that Addington’s attempts to expand presidential power actually backfires. Goldsmith is later vindicated when, in September 2006, one of the last acts of the Republican-led Congress will give the administration every power the administration had asked for, authorizing the military commissions that the Court had rejected. The Bush administration could have avoided a damaging Court decision by working with Congress beforehand. “I’m not a civil libertarian, and what I did wasn’t driven by concerns about civil liberties per se,” he says in a 2007 interview. “It was a disagreement about means, not ends, driven by a desire to make sure that the administration’s counterterrorism policies had a firm legal foundation.” [New York Times Magazine, 9/9/2007]

Entity Tags: US Department of Justice, Yaser Esam Hamdi, US Supreme Court, Paul Clement, Al-Qaeda, Bush administration (43), David S. Addington, Jack Goldsmith, Office of Legal Counsel (DOJ), Richard (“Dick”) Cheney

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

Peter Lewis of Progressive Insurance.Peter Lewis of Progressive Insurance. [Source: Forbes]Billionaire George Soros, a frequent contributor to Democratic and liberal causes, gives $23.7 million to a number of “527s,” politically active groups that operate independently of particular campaigns or candidates (see 2000 - 2005, March 2000 and After, and June 30, 2000). Peter Lewis, the CEO of Progressive Insurance, gives almost that much, with donations totaling $23.247 million. Their donations include:
bullet $16 million (Lewis) and $12,050,000 (Soros) to the Joint Victory Campaign 2004, an “umbrella” fundraising entity that distributes funds to two other major groups, America Coming Together (ACT) and The Media Fund.
bullet $7,500,000 (Soros) and $2,995,000 (Lewis) to America Coming Together.
bullet $2,500,000 (Soros) and $2,500,000 (Lewis) to MoveOn.org.
bullet $650,000 (Lewis) and $325,000 (Soros) to the Young Democrats of America.
bullet $485,000 (Lewis) to the Marijuana Policy Project.
bullet $325,000 (Soros) to Democrats 2000.
bullet $300,000 (Soros) to the Real Economy Group.
bullet $300,000 (Soros) to the Campaign for America’s Future.
bullet $250,000 (Soros) and $250,000 (Lewis) to Democracy for America.
bullet $250,000 (Soros) to Safer Together 04.
bullet $117,220 (Lewis) to Stonewall Democrats United.
bullet $100,000 (Lewis) to the Gay and Lesbian Victory Fund.
bullet $100,000 (Lewis) to the Sierra Club.
bullet $50,000 (Lewis) to PunkVoter.Inc. [Center for Responsive Politics, 2012; Discover the Secrets, 2012; Center for Responsive Politics, 6/11/2012; Center for Responsive Politics, 6/11/2012]

Entity Tags: George Soros, America Coming Together, Young Democrats of America, Democrats 2000, Democracy for America, Gay and Lesbian Victory Fund, Campaign for America’s Future, Stonewall Democrats United, The Media Fund, MoveOn (.org), Marijuana Policy Project, Sierra Club, Peter Lewis, Safer Together 04, PunkVoter.Inc., Joint Victory Campaign, Real Economy Group

Timeline Tags: 2004 Elections

Category Tags: Campaign Finance

The Supreme Court accepts the habeas case of Yaser Esam Hamdi. For two years, Hamdi has been in detention and has been barred from seeing an attorney, and all the while not having any information about charges against him or of an upcoming trial. “I didn’t know what was going on. Really, I didn’t know anything,” Hamdi later recalls. “I was just in a big question mark, and I didn’t know any answers to any questions.” [CNN, 10/14/2004]

Entity Tags: Yaser Esam Hamdi, US Supreme Court

Timeline Tags: Torture of US Captives

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

A sample page from Mark Klein’s AT&T documentation.A sample page from Mark Klein’s AT&T documentation. [Source: Mark Klein / Seattle Times]Senior AT&T technician Mark Klein (see July 7, 2009), gravely concerned by the National Security Agency (NSA) spying operation going on in AT&T’s San Francisco facility (see October 2003) and now in possession of documents which prove the nature and scope of the telecommunications surveillance activities (see Fall 2003 and Late 2003), writes a memo summarizing his findings and conclusions. He appends eight pages of the unclassified documents he has in his possession, along with two photographs and some material from the Internet which documents the sophisticated surveillance equipment being used to gather data from AT&T’s electronic transmissions. The NSA and AT&T were, he later says, “basically sweeping up, vacuum-cleaning the Internet through all the data, sweeping it all into this secret room.… It’s the sort of thing that very intrusive, repressive governments would do, finding out about everybody’s personal data without a warrant. I knew right away that this was illegal and unconstitutional, and yet they were doing it.… I think I’m looking at something Orwellian. It’s a government, many-tentacled operation to gather daily information on what everybody in the country is doing. Your daily transactions on the Internet can be monitored with this kind of system, not just your Web surfing. All kinds of business that people do on the Internet these days—your bank transactions, your email, everything—it sort of opens a window into your entire private life, and that’s why I thought of the term ‘Orwellian.’ As you know, in [George] Orwell’s story [1984], they have cameras in your house, watching you. Well, this is the next best thing.… So I was not only angry about it; I was also scared, because I knew this authorization came from very high up—not only high up in AT&T, but high up in the government. So I was in a bit of a quandary as to what to do about it, but I thought this should be halted.”
Gathering 'the Entire Data Stream' - In his memo, Klein concludes that the NSA is using “splitter” equipment to copy “the entire data stream [emphasis in the original] and sent it to the [NSA’s] secret room for further analysis.” Klein writes that the splitters actually “split off a percentage of the light signal [from the fiber optic circuits] so it can be examined. This is the purpose of the special cabinet… circuits are connected into it, the light signal is split into two signals, one of which is diverted to the ‘secret room.’ The cabinet is totally unnecessary for the circuit to perform—in fact, it introduces problems since the signal level is reduced by the splitter—its only purpose is to enable a third party [the NSA] to examine the data flowing between sender and recipient on the Internet.” (Emphasis in the original.) In his book, Klein will explain that “each separate signal,” after being split, “contains all the information, nothing is lost, so in effect the entire data stream has been copied.” He will continue: “What screams out at you when examining this physical arrangement is that the NSA was vacuuming up everything flowing in the Internet stream: email, Web browsing, voice-over-Internet phone calls, pictures, streaming video, you name it. The splitter has no intelligence at all, it just makes a blind copy.” Klein later explains to a reporter: “The signals that go across fiber optics are laser light signals. It’s light basically that runs through a fiber optic, which is a clear glass fiber, and it has to be at a certain level for the routers to see the light and interpret the data correctly. If the light gets too low, just as if you get a weak flashlight with bad batteries, at a certain point it doesn’t work. If the light level drops too low, the router starts dropping bits and getting errors, and eventually you get loss of signal, and it just doesn’t work at all.… The effect of the splitter is to reduce the strength of the signal, and that may or may not cause a problem, depending on how much the signal is reduced.” A telecommunications company would not, as a rule, use such a splitter on its backbone Internet traffic because of the risk of degraded signal quality. “You want to have as few connections on your main data lines as possible,” Klein will say, “because each connection reduces the signal strength, and a splitter is a connection, and if you can avoid that, all the better.”
Inherently Illegal - Klein will explain that there is no way these activities are legal: “There could not possibly be a legal warrant for this, since according to the Fourth Amendment, warrants have to be specific, ‘particularly describing the place to be searched and the persons or things to be seized.’ It was also a blatant violation of the 1978 Foreign Intelligence Surveillance Act [FISA—see 1978], which calls for specific warrants as required by the Fourth Amendment. This was a massive blind copying of the communications of millions of people, foreign and domestic, randomly mixed together. From a legal standpoint, it does not matter what they claim to throw away later in their secret rooms, the violation has already occurred at the splitter.” [AT&T, 12/10/2002; AT&T, 1/13/2003; AT&T, 1/24/2003; Wired News, 5/22/2006; PBS Frontline, 5/15/2007; Klein, 2009, pp. 37, 119-133]
The Narus STA 6400 - Klein discusses one key piece of equipment in the NSA’s secret room, the Narus STA 6400 (see Late 2003). Narus is a firm that routinely sells its equipment not only to telecom firms such as AT&T, “but also to police, military, and intelligence officials” (see November 13-14, 2003). Quoting an April 2000 article in Telecommunications magazine, Klein writes that the STA 6400 is a group of signal “traffic analyzers that collect network and customer usage information in real time directly from the message.… These analyzers sit on the message pipe into the ISP [Internet Service Provider] cloud rather than tap into each router or ISP device.” Klein quotes a 1999 Narus press release that says its Semantic Traffic Analysis (STA) technology “captures comprehensive customer usage data… and transforms it into actionable information… [it] is the only technology that provides complete visibility for all Internet applications.” The Narus hardware allows the NSA “to look at the content of every data packet going by, not just the addressing information,” Klein will later write.
A 'Dream Machine for a Police State' - Klein later writes of the Narus STA 6400: “It is the dream machine of a police state, one that even George Orwell could not imagine. Not only does it enable the government to see what millions of people are saying and doing every day, but it can build up a database which reveals the connections among social groups—who’s calling and emailing whom. Such a device can easily be turned against all dissident protest groups, and even the Democratic and Republican parties, with devastating effect. And it’s in the hands of the executive power, in total secrecy.” [AT&T, 12/10/2002; AT&T, 1/13/2003; AT&T, 1/24/2003; Wired News, 5/22/2006; Klein, 2009, pp. 37-40] In support of the memo and an ensuing lawsuit against AT&T (see January 31, 2006), Klein will later write: “Despite what we are hearing, and considering the public track record of this administration, I simply do not believe their claims that the NSA’s spying program is really limited to foreign communications or is otherwise consistent with the NSA’s charter or with FISA. And unlike the controversy over targeted wiretaps of individuals’ phone calls, this potential spying appears to be applied wholesale to all sorts of Internet communications of countless citizens.” [Wired News, 4/7/2006]

Entity Tags: National Security Agency, Narus, Mark Klein, Foreign Intelligence Surveillance Act, AT&T

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

Federal judge Audrey Collins rules that parts of the USA Patriot Act are unconstitutional, specifically portions barring individuals or entities from giving expert advice or assistance to groups designated as international terrorist organizations. Collins rules that the ban on on providing “expert advice or assistance” is impermissibly vague, and violates the First and Fifth Amendments. The advice or assistance forbidden under the act “could be construed to include unequivocally pure speech and advocacy protected by the First Amendment,” Collins writes. The suit, brought before a Los Angeles court by the Humanitarian Law Project (HLP), was originally filed in 1998 by five groups and two US citizens who wanted to provide political and financial support to the nonviolent arms of two dissident organizations designated as terrorists by the United States: the Kurdish Workers Party in Turkey and the Liberation Tigers of Tamil Eelam in Sri Lanka. The suit was later amended to include the Patriot Act. The HLP argued that the plaintiffs were threatened with 15 years in prison if they provided advice to the groups. The Patriot Act, Collins rules, does not differentiate between impermissible advice on violence and encouraging the use of peaceful, nonviolent means to achieve goals. “The USA Patriot Act places no limitation on the type of expert advice and assistance which is prohibited and instead bans the provision of all expert advice and assistance regardless of its nature,” she writes. HLP attorney David Cole calls the ruling “a victory for everyone who believes the war on terrorism ought to be fought consistent with constitutional principles.” The ruling is the first judicial setback for the Patriot Act. [Associated Press, 1/26/2004; San Francisco Chronicle, 1/27/2004] The judge’s verdict will be upheld on appeal (see December 10, 2007).

Entity Tags: Humanitarian Law Project, Audrey Collins, USA Patriot Act, David D. Cole

Category Tags: Patriot Act

Jack Goldsmith, the head of the Justice Department’s Office of Legal Counsel (see October 6, 2003), is astonished at the open contempt displayed by White House officials over dealing with Congress and the restraints imposed by the Foreign Intelligence Surveillance Act (FISA). Though Goldsmith agrees with the aims of the administration in battling terrorism, and agrees with the administration that FISA may present undue restraint on conducting terror investigations, he is shocked at the cavalier manner in which the administration ignores the law and the constitutional mandates for Congressional oversight. “We’re one bomb away from getting rid of that obnoxious [FISA] court,” White House aide David Addington tells Goldsmith. Addington, the chief aide to Vice President Dick Cheney, and other Bush officials treat FISA the same way they treated other laws they disdained, Goldsmith later recalls: “They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations,” he will write in his 2007 book “The Terror Presidency” (see September 9, 2007). [New York Times Magazine, 9/9/2007]

Entity Tags: Jack Goldsmith, Bush administration (43), David S. Addington, Foreign Intelligence Surveillance Act, Office of Legal Counsel (DOJ), Richard (“Dick”) Cheney, US Department of Justice

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

Police photo of Tom DeLay, after his 2005 indictment on election fraud charges.Police photo of Tom DeLay, after his 2005 indictment on election fraud charges. [Source: Mug Shot Alley]The co-founder and editor of the American Prospect, Robert Kuttner, subjects the 2002 House of Representatives to scrutiny, and concludes that under the rule of House Majority Leader Tom DeLay (R-TX), it is well on its way to becoming what he calls a “dictatorship.” Kuttner writes that such authoritarian rule in “the people’s chamber” of Congress puts the US “at risk of becoming an autocracy.” He explains: “First, Republican parliamentary gimmickry has emasculated legislative opposition in the House of Representatives (the Senate has other problems). [DeLay] has both intimidated moderate Republicans and reduced the minority party to window dressing.… Second, electoral rules have been rigged to make it increasingly difficult for the incumbent party to be ejected by the voters, absent a Depression-scale disaster, Watergate-class scandal, or Teddy Roosevelt-style ruling party split.… Third, the federal courts, which have slowed some executive branch efforts to destroy liberties, will be a complete rubber stamp if the right wins one more presidential election. Taken together, these several forces could well enable the Republicans to become the permanent party of autocratic government for at least a generation.” Kuttner elaborates on his rather sweeping warnings.
Legislative Dictatorship - The House, and to a lesser extent the Senate, used to have what was called a “de facto four-party system”: liberal Democrats; Southern “Dixiecrats” who, while maintaining their membership as Democrats largely due to lingering resentment of Republicans dating back to the Civil War, often vote with Republicans; conservative Republicans; and moderate-to-liberal “gypsy moth” Republicans, who might vote with either party. Rarely did one of the four elements gain long-term control of the House. Because of what Kuttner calls “shifting coalitions and weak party discipline,” the majority party was relatively respectful of the minority, with the minority free to call witnesses in hearings and offer amendments to legislation. In the House, that is no longer true. While the House leadership began centralizing under House Speaker Jim Wright (D-TX) between 1987 and 1989, the real coalescence of power began under Speaker Newt Gingrich (R-GA) between 1995 and 1999. The process, Kuttner asserts, has radically accelerated under DeLay and Speaker Dennis Hastert (R-IL).
Centralized Legislation - Under current practices, even most Republicans do not, as a rule, write legislation—that comes from DeLay and Hastert. Drastic revisions to bills are often rammed through late in the evening, with little or no debate. The Republican leadership has classified legislation as “emergency” measures 57 percent of the time, allowing them to be voted on with as little as 30 minutes of debate. Kuttner writes, “On several measures, members literally did not know what they were voting for.” Legislation written and proposed by Democrats rarely gets to the floor for debate. Amendments to legislation is also constrained, almost always coming from Hastert and DeLay. “[V]irtually all major bills now come to the floor with rules prohibiting amendments.” DeLay enforces rigid party loyalty, threatening Republican members who resist voting for the leadership’s bills with loss of committee assignments and critical campaign funds, and in some circumstances with DeLay’s sponsoring primary opponents to unseat the uncooperative member in the next election.
Democrats Shut out of Conferences - In the House, so-called “conference committees,” where members work to reconcile House and Senate versions of legislation, have become in essence one-party affairs. Only Democrats who might support the Republican version of the bill are allowed to attend. The conference committee then sends a non-amendable bill to the floor for a final vote.
No Hearings - The general assumption is that House members debate bills, sometimes to exhaustion, on the chamber floor. No more. Before DeLay, bills were almost never written in conference committees. Now, major legislation is often written in conference committee; House members often never see the legislation until it has been written in final, non-amendable form by DeLay and his chosen colleagues.
Abuse of Appropriations - Appropriations, or funding of events authorized by legislation, are ripe for use and misuse by the one-party leadership. Many appropriations bills must pass in order for Congress or other entities of the government to continue functioning. While “earmarks”—“pork-barrel” appropriations for individual members’ pet projects and such—are nothing new, under Gingrich and later Hastert/DeLay, the use of earmarks has skyrocketed. Huge earmarks are now routinely attached to mandatory appropriations bills. DeLay has perfected a technique known as “catch and release.” On close pending votes, the House Republican Whip Organization, made up of dozens of regional whips, will target the small but critical number of Republicans who might oppose the legislation. Head counts are taken; as members register (and change) their votes, some are forced to vote against their consciences (or their constituents) and others are allowed to vote no. Kuttner writes, “Basically, Republican moderates are allowed to take turns voting against bills they either oppose on principle or know to be unpopular in their districts.” This allows the member to save at least some face with their constituents. Under Wright, Republican members such as then-Representative Dick Cheney (R-WY) were outraged when Wright held a vote open for 15 minutes after voting was to end; Cheney called it “the most arrogant, heavy-handed abuse of power I’ve ever seen in the 10 years that I’ve been here.” It is not unusual for DeLay to hold votes open for up to three hours to get recalcitrant members in line. [American Prospect, 2/1/2004] In 2006, author John Dean will note that when the Republicans took control of the House in 1999, there were 1,439 earmarks in that year’s legislation. By the end of 2005, “there were a staggering 13,998 earmarked expenses, costing $27.3 billion.” Dean will write, “Needless to say, there is nothing conservative in those fiscal actions but there is much that is authoritarian about the wanton spending by those Republicans.” [Dean, 2006]
Lack of Opposition - Kuttner notes that Congressional Democrats have not mounted a systematic, organized denunciation of the DeLay operation. Kuttner believes that many Democrats believe voters are uninterested in what they call “process issues,” and that voters will dismiss complaints as “inside baseball,” of little relevance to their lives. Worse, such complaints “make… us look weak,” as one senior House staffer says. Kuttner writes that many Democrats believe such complaints sound “like losers whining.”
Permanent Republican Majority - If DeLay and his confreres in the White House have their way, there will be, in essence, a permanent Republican majority in the House and hopefully in the Senate as well. Bill Clinton routinely practiced what he called bipartisan “triangulation,” building ad hoc coalitions of Democrats and Republicans to pass his legislative initiatives, and in the process weakening the Democratic leadership. Kuttner writes, “Bush’s presidency, by contrast, has produced a near parliamentary government, based on intense party discipline both within Congress and between Congress and the White House.” Republicans have been busy reworking the district maps of various key states to ensure that Republicans keep their majorities, concentrating perceived Democratic voters to have overwhelming majorities in a few districts, and leaving the Republicans holding smaller majorities in the rest. Both parties have been guilty of such “gerrymandering” in the past, but with DeLay’s recent “super-gerrymandering” of his home state of Texas, the Republican makeup of the Texas House delegation is all but assured. DeLay and other House Republicans are working to redistrict other states in similar fashions. As of the 2004 midterm elections, of the 435 House seats, only around 25 are considered effectively contestable—over 90 percent of the House seats are “safe.” Democrats would have to win a disproportionate, and unlikely, number of those “swing” seats to take back control of the House. Kuttner writes: “The country may be narrowly divided, but precious few citizens can make their votes for Congress count. A slender majority, defying gravity (and democracy), is producing not moderation but a shift to the extremes.”
Control of Voting - Kuttner cites the advent of electronic voting machines and the Help America Vote Act (HAVA) as two reasons why Republicans will continue to have advantages at the voting booth. The three biggest manufacturers of electronic voting machines have deep financial ties to the Republican Party, and have joined with Republicans in opposing a so-called “verifiable paper trail” that could prove miscounts and possible fraudulent results. HAVA, written in response to the 2000 Florida debacle, requires that voters show government-issued IDs to be allowed to vote, a provision that Kuttner says is ripe for use in Republican voter-intimidation schemes. Republicans “have a long and sordid history of ‘ballot security’ programs intended to intimidate minority voters by threatening them with criminal prosecution if their papers are not technically in order,” he writes. “Many civil rights groups see the new federal ID provision of HAVA as an invitation to more such harassment.” The only recourse that voters have to such harassment is to file complaints with the Department of Justice, which, under the aegis of Attorney General John Ashcroft, has discouraged investigation of such claims.
Compliant Court System - Increasingly, federal courts with Republican-appointed judges on the bench have worked closely with Republicans in Congress and the White House to issue rulings favorable to the ruling party. Kuttner notes that if President Bush is re-elected: “a Republican president will have controlled judicial appointments for 20 of the 28 years from 1981 to 2008. And Bush, in contrast to both his father and Clinton, is appointing increasingly extremist judges. By the end of a second term, he would likely have appointed at least three more Supreme Court justices in the mold of Antonin Scalia and Clarence Thomas, and locked in militantly conservative majorities in every federal appellate circuit.” The Supreme Court is already close to becoming “a partisan rubber stamp for contested elections,” Kuttner writes; several more justices in the mold of Justices Antonin Scalia (see September 26, 1986) and Clarence Thomas (see October 13, 1991) would, Kuttner writes, “narrow rights and liberties, including the rights of criminal suspects, the right to vote, disability rights, and sexual privacy and reproductive choice. It would countenance an unprecedented expansion of police powers, and a reversal of the protection of the rights of women, gays, and racial, religious, and ethnic minorities. [It would] overturn countless protections of the environment, workers and consumers, as well as weaken guarantees of the separation of church and state, privacy, and the right of states or Congress to regulate in the public interest.” [American Prospect, 2/1/2004]

Entity Tags: George W. Bush, Democratic Party, Dennis Hastert, Clarence Thomas, Antonin Scalia, Tom DeLay, Robert Kuttner, William Jefferson (“Bill”) Clinton, Republican Party, John Ashcroft, Richard (“Dick”) Cheney, House Republican Whip Organization, James C. (‘Jim’) Wright, Jr., John Dean, Newt Gingrich, Help America Vote Act

Category Tags: Impositions on Rights and Freedoms, Expansion of Presidential Power, Election, Voting Laws and Issues, Campaign Finance

US Representative Darrell Issa (R-CA) requests information from the Justice Department about the arrest of an alleged illegal alien smuggler from US Attorney Carol Lam (see November 8, 2002), the federal prosecutor who works the Southern California district. Issa asks for information about Lam’s decision not to prosecute Antonio Amparo-Lopez, who was arrested on suspicion of “alien smuggling” over the US-Mexican border. [US Department of Justice, 3/23/2007 pdf file] Issa was quoted in a December 2003 article in the Riverside, California, Press-Enterprise entitled “Border Agents Face Uphill Fight,” in which the Justice Department was criticized for not prosecuting immigrant smugglers frequently enough. Shortly thereafter, the same newspaper published an article detailing how one such smuggler, Amparo-Lopez, was arrested at a border checkpoint but was subsequently released. Lam will respond to Issa in mid-March, requesting that he direct his inquiries to the Justice Department in Washington. On May 24, Issa will receive a letter from Assistant Attorney General William Moschella, stating, “Based upon all of the facts and circumstances of his arrest, the United States Attorney’s Office declined to prosecute Mr. Amparo-Lopez.” [National Review, 3/28/2007]

Entity Tags: William E. Moschella, US Department of Justice, Darrell E. Issa, Carol C. Lam, Antonio Amparo-Lopez, Riverside Press-Enterprise

Category Tags: Airport and Immigration Security, 2006 US Attorney Firings

Sixty-two leading scientists, including Nobel Prize laureates, university chairs and presidents, and former federal agency directors, sign a joint statement protesting the Bush administration’s “unprecedented” politicization of science (see January 2004 and June 1, 2005). Over 11,000 scientists will add their names to the statement, disseminated by the Union of Concerned Scientists, in the coming years. “When scientific knowledge has been found to be in conflict with its political goals, the administration has often manipulated the process through which science enters into its decisions,” the scientists write. “This has been done by placing people who are professionally unqualified or who have clear conflicts of interest in official posts and on scientific advisory committees; by disbanding existing advisory committees; by censoring and suppressing reports by the government’s own scientists; and by simply not seeking independent scientific advice. Other administrations have, on occasion, engaged in such practices, but not so systematically nor on so wide a front. Furthermore, in advocating policies that are not scientifically sound, the administration has sometimes misrepresented scientific knowledge and misled the public about the implications of its policies.” [Union of Concerned Scientists, 2/18/2004; Savage, 2007, pp. 303-304]

Entity Tags: Bush administration (43)

Timeline Tags: US Environmental Record

Category Tags: Expansion of Presidential Power, Government Classification

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