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Chairman of the Senate Intelligence Committee Jay Rockefeller (D-WV) says that he did not know about the destruction of CIA videos of detainee interrogations (see November 2005 and December 6, 2007). [US Congress, 12/7/2007] This contradicts a statement by CIA Director Michael Hayden saying that, “Our oversight committees also have been told that the videos were, in fact, destroyed.” [Central Intelligence Agency, 12/6/2007] The CIA says that the committee was informed of the destruction in November 2006, but, “A review of the November 2006 hearing transcript finds no mention of tapes being destroyed.” [US Congress, 12/7/2007] The House Intelligence Committee was apparently informed in March 2007. [CBS News, 12/7/2007] However, the committee will say to Hayden that, “The notification came in the form of an offhand comment you made in response to a question,” and, “We do not consider this to be sufficient notification.” [US Congress, 12/7/2007] There is also a dispute over what happened when the committees were first informed of the videos’ existence. Hayden says, “The leaders of our oversight committees in Congress were informed of the videos years ago and of the Agency’s intention to dispose of the material.” [Central Intelligence Agency, 12/6/2007] Some political leaders were informed of the tapes in 2003, but urged that they not be destroyed (see November 2005).
Several current and former members of Congress have varying recollections of being given a classified briefing in the months after the 9/11 attacks on the interrogation methods being used by the CIA on terror suspects, including waterboarding (see September 2002). Former House Intelligence Committee chairman Porter Goss recalls: “Among those being briefed, there was a pretty full understanding of what the CIA was doing. And the reaction in the room was not just approval, but encouragement.” Former Senate Intelligence Committee chairman Bob Graham (D-FL) says he does not recall ever being briefed about waterboarding or other extreme interrogation methods, “Personally, I was unaware of it, so I couldn’t object.” Graham says he believes waterboarding and many of the other interrogation techniques used by the CIA are illegal and constitute torture. Then-House Minority Leader Nancy Pelosi (D-CA) refuses to comment on the briefings, but a source familiar with her position on the matter says she recalls some discussions of enhanced interrogation, and that she was told the techniques described to her were in the planning stages at the time of the briefings. The source acknowledges that Pelosi raised no objections at the time. Former ranking House Intelligence Committee member Jane Harman (D-CA) says that in the months after the briefing, she filed a classified letter with the CIA officially protesting the interrogation program. Harman says that she had been prevented from publicly revealing the letter, or the CIA interrogation program, because of strict rules of secrecy. “When you serve on intelligence committee you sign a second oath—one of secrecy,” she says. “I was briefed, but the information was closely held to just the Gang of Four. I was not free to disclose anything.” The “Gang of Four” consists of the ranking Republican and Democratic members of the House and Senate intelligence committees. Pat Roberts (R-KS), then the ranking member of the Senate Intelligence Committee, refuses to discuss his participation in the briefings, as does the then-ranking Democrat on that committee, John D. Rockefeller (D-WV). Since 2005, Rockefeller has pushed for expanded Congressional oversight and an investigation of CIA practices. “I proposed without success, both in committee and on the Senate floor, that the committee undertake an investigation of the CIA’s detention and interrogation activities,” Rockefeller says. [Washington Post, 12/9/2007]
Michael McConnell, the director of national intelligence, writes an op-ed for the New York Times pushing for Congressional immunity for US telecommunications firms over their cooperation with the NSA’s warrantless wiretapping program. Under August’s Protect America Act, McConnell writes, the country is “safer” from terrorist attacks while the privacy of US citizens is protected (see August 5, 2007). The government has “greater understanding of international [al-]Qaeda networks, and the law has allowed us to obtain significant insight into terrorist planning.” But the Act expires in two months, and McConnell wants it re-enacted and significantly expanded “if we are to stay ahead of terrorists who are determined to attack the United States.” Echoing the arguments of Bush administration officials, McConnell attacks the “outdated” Foreign Intelligence Surveillance Act as significantly hindering the government’s “ability to collect timely foreign intelligence.” McConnell complains: “Our experts were diverted from tracking foreign threats to writing lengthy justifications to collect information from a person in a foreign country, simply to satisfy an outdated statute that did not reflect the ways our adversaries communicate. The judicial process intended to protect the privacy and civil liberties of Americans was applied instead to foreign intelligence targets in foreign countries. This made little sense, and the Protect America Act eliminated this problem.” McConnell calls for new legislation that would obviate the need for intelligence agencies such as the NSA to seek warrants to monitor US citizens’ telephone and e-mail communications: “The intelligence community should spend its time protecting our nation, not providing privacy protections to foreign terrorists and other diffuse international threats.” He also calls for retroactive immunity for “private parties”—i.e. the US telecommunications companies—that are subject to lawsuits over their cooperation with the NSA in monitoring US communications. “The intelligence community cannot go it alone,” he writes. “Those in the private sector who stand by us in times of national security emergencies deserve thanks, not lawsuits.” Two days later, new Attorney General Michael Mukasey will write a virtually identical op-ed for the Los Angeles Times (see December 12, 2007). [New York Times, 12/10/2007]
The Ninth Court of Appeals in San Francisco upholds a 2004 ruling (see January 23, 2004) that portions of the USA Patriot Act are unconstitutional. The original ruling found that portions of the Act banning any advice or assistance to designated terrorist organizations is too broad and vague; the appeals court agrees, ruling that the language of the Act is too vague to be understood by someone of ordinary intelligence. Without clear language, the Act says that those who provide assistance to foreign terrorist organizations could be subject to prison terms of up to 15 years. To survive a vagueness challenge, the appeals court says, a statute “must be sufficiently clear to put a person of ordinary intelligence on notice that his or her contemplated conduct is unlawful.” Congressional amendments to the Act have not remedied the problem, the court says. [Associated Press, 12/10/2007]
Colonel Morris Davis, the former head of the Office of Military Commissions at Guantanamo Bay, writes in an op-ed for the Los Angeles Times that he resigned (see October 4, 2007) because he “concluded that full, fair and open trials were not possible under the current system.” He adds that, “I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly.” Davis writes that while the legitimacy of the military commissions rests on the belief that they are being conducted fairly and honestly, the political appointee who is now the “convening authority,” Susan Crawford, is “not living up to that obligation.” The convening authority has “no counterpart in civilian courts,” Davis explains, and has great powers over certain aspects of prosecutions, such as which charges go to trial, which are dismissed, who serves on the jury, and whether to approve requests for experts, and reassesses findings of guilt and sentences. The position is mandated by law to be absolutely impartial, favoring neither prosecutions or defendants. While Crawford’s predecessor conducted himself with the required impartiality: “Crawford, on the other hand, had her staff assessing evidence before the filing of charges, directing the prosecution’s pretrial preparation of cases… drafting charges against those who were accused and assigning prosecutors to cases, among other things. How can you direct someone to do something—use specific evidence to bring specific charges against a specific person at a specific time, for instance—and later make an impartial assessment of whether they behaved properly? Intermingling convening authority and prosecutor roles perpetuates the perception of a rigged process stacked against the accused.” [Los Angeles Times, 12/10/2007]
John Kiriakou. [Source: ABC News]Former CIA officer John Kiriakou gives the first of several media interviews around this time about the agency’s use of waterboarding and torture, to ABC. In this interview and others Kiriakou, who led the team that captured militant training camp facilitator Abu Zubaida (see March 28, 2002), makes several points:
Zubaida was waterboarded. This is the first official on-the-record acknowledgment by any CIA official that the controversial technique that simulates drowning was used.
Zubaida was only waterboarded once, for about 30 to 35 seconds. (This is untrue. Zubaida was actually waterboarded at least 83 times—see April 18, 2009.)
After the waterboarding, Zubaida became co-operative; he had previously been uncooperative. (This is also allegedly untrue—see June 2002.) Kiriakou says, “The threat information that he provided disrupted a number of attacks, maybe dozens of attacks.” Kiriakou thinks the attacks were not to be on US soil, but overseas, although he is not sure. Waterboarding and the other techniques were used because of a sense of urgency. “Those tricks of the trade require a great deal of time—much of the time—and we didn’t have that luxury. We were afraid that there was another major attack coming.”
Use of the CIA’s enhanced interrogation techniques is tightly controlled in the agency. Each application of a technique had to be specifically approved by the deputy director for operations.
Kiriakou implies that waterboarding is torture and should remain banned now, but the circumstances of the time warranted its use. He believes that waterboarding both compromised American principles and saved lives. “Like a lot of Americans, I’m involved in this internal, intellectual battle with myself weighing the idea that waterboarding may be torture versus the quality of information that we often get after using the waterboarding technique,” he says. “And I struggle with it.”
Although he was personally involved in Zubaida’s capture, Kiriakou was not present at the interrogations and only learned about them at CIA headquarters. [ABC News, 12/10/2007; ABC News, 12/10/2007 ; ABC News, 12/10/2009 ] Over the next few days, Kiriakou gives a number interviews to other media outlets with basically the same information. The New York Times will call the series of interviews a “media blitz.” [New York Times, 12/11/2007; New York Times, 4/28/2009] The media he speaks to include the Washington Post, the New York Times, National Public Radio, CBS, CNN, and MSNBC (see December 11, 2007). A CNN anchor even calls him “the man of the hour.” [New York Times, 4/28/2009] Kiriakou garners praise for his poise in front of the camera. For example, Harper’s journalist Scott Horton will call him “telegenic,” whereas Foreign Policy magazine commentator Annie Lowery will opt for “telegenic and well spoken.” [Harpers, 12/21/2007; Foreign Policy, 4/28/2009]
Former CIA officer John Kiriakou, who has recently admitted that the agency waterboarded militant training camp facilitator Abu Zubaida (see December 10, 2007), gives another interview about the issue, this time to MSNBC “Today Show” host Matt Lauer. Kiriakou again repeats his talking points: the CIA waterboarded Abu Zubaida, the use of this and other enhanced techniques was controlled by bureaucratic procedure, it led to intelligence, but it is torture. However, when Lauer asks whether the White House was involved in the decision, Kiriakou answers: “Absolutely.… This was a policy decision that was made at the White House with concurrence from the National Security Council and Justice Department.” Lauer plays a clip of an interview he did with President Bush over a year ago in which Bush said, “I told our people get information without torture and was assured by our Justice Department that we were not torturing.” Kiriakou responds to it, saying: “I disagree. I know that there was a high level policy debate on whether or not this was torture and that the Department of Justice and the White House counsel and the National Security Council decided that it was not, at the time.” [MSNBC, 12/11/2007] The CIA decides not to refer Kiriakou to the Justice Department for a leak investigation over his original interview at this time (see December 11, 2007). However, according to Harper’s magazine columnist Scott Horton, officials at the Justice Department and the National Security Council are “furious” that Kiriakou has mentioned their role in the waterboarding, and insist that he be investigated (see December 20, 2007). [Harpers, 12/21/2007]
Michael Mukasey, the new Attorney General, writes an op-ed for the Los Angeles Times pushing for Congressional immunity for US telecommunications firms over their cooperation with the NSA’s warrantless wiretapping program. Mukasey supports the NSA program, echoing the administration’s long insistence that the surveillance program is “crucial” in protecting the country against terrorist attacks. He also reiterates the administration’s criticism of the “outdated” Foreign Intelligence Surveillance Act, which he says hampers the government’s ability to collect needed intelligence and does little to protect the privacy of US citizens. Mukasey calls for Congress to pass a Senate bill that would grant the telecommunications firms retroactive immunity to civil lawsuits and criminal charges surrounding their cooperation with the NSA, and would no longer require court orders for the government to “direct surveillance at foreign targets overseas”—surveillance that would target US citizens. Mukasey says the US will “need the full-hearted help of private companies in our intelligence activities; we cannot expect such cooperation to be forthcoming if we do not support companies that have helped us in the past.” Mukasey strongly opposes another Senate bill that would grant no immunity and would continue to require the government to obtain FISA Court warrants before wiretapping domestic communications. Two days earlier, the director of national intelligence, Michael McConnell, penned a virtually identical op-ed for the New York Times (see December 10, 2007). [Los Angeles Times, 12/12/2007]
Morris Davis, the former lead prosecutor for the Guantanamo military commissions who resigned in October (see October 4, 2007), tells interviewer Dan Rather that the upcoming prosecutions at Guantanamo are largely driven by political concerns (see October 19, 2007). “I think the big fear that was expressed was if Hillary Clinton wins the White House [in 2008]—this whole show goes away, and Guantanamo is shut down.… So, there’s a distrust of the military. And you’ve got political involvement. What I’ve seen in this process is that if you combine—ya know, excessive—arrogance with excessive ignorance—you wind up with six years later with—one guilty plea done.” [Business Wire, 12/14/2007]
The Bush administration begins a push to get Congress to pass legislation to protect telecommunications companies from lawsuits over their assistance with the NSA’s warrantless wiretapping program. This is part of the administration’s long and sometimes uneasy partnership with the telecom industry to conduct a wide range of secret anti-terrorism surveillance operations. The firms fear further lawsuits and more public exposure, and some have refused outright to cooperate (see February 27, 2001 and 1990s).
Fiber Optics - Twenty years ago, the NSA had little difficulty in monitoring telephone communications because older technology relied on broadcast signals carried by microwave towers and satellite relays; the agency used its own satellite dishes to cull the signals. But fiber optic communications are much more difficult to tap, forcing the agency to seek the cooperation of the telecoms to monitor their signals.
Relationship - “It’s a very frayed and strained relationship right now, and that’s not a good thing for the country in terms of keeping all of us safe,” says an industry official in favor of immunity for the telecoms. “This episode has caused companies to change their conduct in a variety of ways.” Both the director of national intelligence, Mike McConnell, and the new Attorney General, Michael Mukasey, write virtually identical op-eds in recent days calling for passage of legislation to grant immunity to the telecoms and remove the need to obtain warrants to wiretap Americans’ communications (see December 10, 2007 and December 12, 2007).
Two Bills - Currently, two bills are before Congress: one largely crafted by Republicans and passed on by the Senate Intelligence Committee that would grant retroactive immunity to the telecoms, and another from the House Judiciary Committee that would not. The White House says President Bush will veto any legislation that does not grant immunity to the telecoms. [New York Times, 12/16/2007]
Senator Ron Wyden (D-OR) replies to a letter from the Justice Department that claims the CIA’s detainee interrogation program is fully compliant with the Geneva Conventions and with US and international law (see September 27, 2007). Wyden challenges the legal rationale for the claims, noting that the cases cited do not directly apply to the question of whether the definitions of “humane treatment” and “cruel, inhuman, and degrading treatment” can vary depending on the identity of the detainee and the circumstances surrounding his interrogation. He also challenges the Justice Department’s rather narrow interpretation of the protections afforded by the Eighth Amendment and the Detainee Treatment Act (see December 30, 2005). [US Senate, 3/6/2008 ]
Mike Huckabee. [Source: mikehuckabee.com]Republican presidential candidate Mike Huckabee, a former Arkansas governor and outspoken fundamentalist Christian, tells Michigan voters that the US Constitution should be amended to reflect what he considers to be Christian values. Huckabee says, “[Some of my opponents] do not want to change the Constitution, but I believe it’s a lot easier to change the Constitution than it would be to change the word of the living God, and that’s what we need to do is to amend the Constitution so it’s in God’s standards rather than try to change God’s standards.” Based on the rest of his speech, it appears Huckabee is referring to his desire to pass constitutional amendments outlawing abortion and defining marriage as being strictly between a man and a woman. [MSNBC, 1/15/2008]
George W. Bush delivering his State of the Union address. [Source: US Department of Defense]President Bush gives his final State of the Union address. During the speech, Bush calls on Congress to immediately pass legislation awarding retroactive immunity to US telecommunications firms that may have illegally cooperated with the NSA and other US intelligence agencies to eavesdrop on the electronic communications of US citizens (see November 7-8, 2007). Bush says of those agencies: “[O]ne of the most important tools we can give them is the ability to monitor terrorist communications. To protect America, we need to know who the terrorists are talking to, what they are saying, and what they’re planning. Last year, Congress passed legislation to help us do that. Unfortunately, Congress set the legislation to expire on February the 1st. That means if you don’t act by Friday, our ability to track terrorist threats would be weakened and our citizens will be in greater danger. Congress must ensure the flow of vital intelligence is not disrupted.” He then says of the telecoms involved in domestic surveillance: “Congress must pass liability protection for companies believed to have assisted in the efforts to defend America. We’ve had ample time for debate. The time to act is now.” (In this statement, Bush refuses to admit that the telecoms have actually cooperated with US surveillance operations; two days later, Vice President Dick Cheney will make just such an admission (see January 30, 2008).) [White House, 1/28/2008; New York Times, 1/29/2008] Bush says that while the nation is at risk of terrorist attack if this legislation is not enacted, he will veto such legislation if it does not contain provisions to protect the telecom industry from civil and criminal prosecution. Harpers commentator Scott Horton calls Bush’s rhetoric a “squeeze play… an exercise in fear-mongering of the purest, vilest sort.” Horton boils down Bush’s comments to say, “‘If Congress doesn’t give me just what I want, then Congress will be responsible for whatever attacks befall the country,’ he reasons.” [Harper's, 1/29/2008]
MSNBC counts the number of endnotes in the 9/11 Commission report that cite detainee interrogations and finds that more than a quarter of them—441 out of over 1,700—do so. It is widely believed that the detainees were tortured while in US custody, and that statements made under torture are unreliable. One of the detainees, alleged 9/11 mastermind Khalid Shaikh Mohammed, whose interrogations are mentioned hundreds of times in the report (see After January 2004), was extensively waterboarded (see Shortly After February 29 or March 1, 2003), and a CIA manager said that up to 90 percent of the information he provided under questioning was unreliable (see August 6, 2007). The endnotes often give the sources of the information contained in the main text. MSNBC comments: “The analysis shows that much of what was reported about the planning and execution of the terror attacks on New York and Washington was derived from the interrogations of high-ranking al-Qaeda operatives. Each had been subjected to ‘enhanced interrogation techniques.’ Some were even subjected to waterboarding.” In addition, many of the endnotes that cite detainee interrogations are for the report’s “most critical chapters”—five, six, and seven—which cover the planning of the attacks and the hijackers’ time in the US. In total, the Commission relied on more than 100 CIA interrogation reports. Its Executive Director Philip Zelikow admits that “quite a bit, if not most” of its information on the 9/11 conspiracy “did come from the interrogations.” Karen Greenberg, director of the Center for Law and Security at New York University’s School of Law, says, “It calls into question how we were willing to use these interrogations to construct the narrative.” [MSNBC, 1/30/2008]
Vice President Dick Cheney calls in to conservative radio host Rush Limbaugh’s broadcast. Cheney argues in favor of the administration’s push for Congress to grant retroactive immunity to telecommunications firms suspected of cooperating with US intelligence agencies in illegally monitoring the telephone and e-mail communications of US citizens (see November 7-8, 2007). In his recent State of the Union address, President Bush made the same call, but refused to admit that the telecoms had actually participated in such actions (see January 28, 2008). Cheney is more forthcoming. He tells Limbaugh that the proposed legislation is about “retroactive liability protection for the companies that have worked with us and helped us prevent further attacks against the United States.” [MSNBC, 1/31/2008]
MSNBC host Keith Olbermann reveals what may be a personal stake in the Bush administration’s push for immunity for telecommunications companies who helped the NSA spy on Americans (see January 28, 2008). Attorney General Michael Mukasey’s son Marc Mukasey is a partner in the law firm of Bracewell & Giuliani (the same Rudolph Giuliani who up until recently was a candidate for the Republican nomination for president). Marc Mukasey is one of the lawyers representing Verizon, one of the telecom firms being sued for cooperating with the government’s surveillance program (see May 12, 2006 and June 26, 2006). Olbermann says of the Mukasey-Giuliani connection: “Now it begins to look like the bureaucrats of the Third Reich trying to protect the Krupp family industrial giants by literally re-writing the laws for their benefit. And we know how that turned out: Alfred Krupp and eleven of his directors were convicted of war crimes at Nuremburg.” [MSNBC, 1/31/2008]
MSNBC commentator Keith Olbermann lambasts President Bush’s State of the Union call to protect US telecom firms from liability in their cooperation with government surveillance of US citizens (see January 28, 2008): “President Bush has put protecting the telecom giants from the laws ahead of protecting you from the terrorists. He has demanded an extension of the FISA law—the Foreign Intelligence Surveillance Act—but only an extension that includes retroactive immunity for the telecoms who helped him spy on you.… This, Mr. Bush, is simple enough even for you to understand: If Congress approves a new FISA act without telecom immunity and sends it to your desk and you veto it—you, by your own terms and your own definitions, you will have just sided with the terrorists. Ya gotta have this law, or we’re all gonna die. But you might veto this law!” Olbermann terms Bush’s call for telecom immunity a “shameless, breathless, literal, textbook example of fascism—the merged efforts of government and corporations who answer to no government.” With heavy sarcasm Olbermann says: “[The telecom immunity] isn’t evil, it’s ‘to protect America.’ It isn’t indiscriminate, it’s ‘the ability to monitor terrorist communications.’ It isn’t unlawful, it’s just the kind of perfectly legal thing, for which you happen to need immunity.… This is not a choice of protecting the telecoms from prosecution, or protecting the people from terrorists, sir. It is a choice of protecting the telecoms from prosecution, or pretending to protect the people from terrorists.… The eavesdropping provisions of FISA have obviously had no impact on counter-terrorism, and there is no current or perceived terrorist threat, the thwarting of which could hinge on an e-mail or a phone call going through room 641-A at AT&T in San Francisco next week or next month. Because if there were, Mr. Bush, and you were to, by your own hand, veto an extension of this eavesdropping, and some terrorist attack were to follow, you would not merely be guilty of siding with the terrorists, you would not merely be guilty of prioritizing the telecoms over the people, you would not merely be guilty of stupidity, you would not merely be guilty of treason, but you would be personally, and eternally, responsible.” [MSNBC, 1/31/2008]
The Center for Constitutional Rights (CCR), an organization dedicated to the protection of civil liberties, releases a statement saying it is “outraged” by revelations about the extent to which the 9/11 Commission report was based on statements from detainees who are said to have been tortured. After MSNBC finds that over a quarter of the report’s endnotes cite detainee interrogations (see January 30, 2008), CCR President Michael Ratner says: “If the Commission suspected there was torture, they should have realized that as a matter of law, evidence derived from torture is not reliable, in part because of the possibility of false confession…at the very least, they should have added caveats to all those references (note: the Commission’s report does contain one caveat related to two chapters—see After January 2004). The Commission’s heavy reliance on tainted sources reinforces the notion that we as a nation have not yet come to terms with the reality that the US engaged in torture. Until we do so, we undermine our credibility in the eyes of the world as a nation of hypocrites.” [Center for Constitutional Rights, 1/31/2008]
President Bush makes racially charged statements while addressing an audience at a Republican fundraiser in Hillsborough, California, outside San Francisco. The fundraiser, hosted by the chairman of an investment firm, raises $1.5 million for the Republican National Committee. [San Francisco Chronicle, 1/31/2008] The media will not learn about Bush’s remarks until late 2009, when former Bush administration speechwriter Matt Latimer publishes his book, Speechless: Tales of a White House Survivor. Latimer will write: “He talked about his own failings with alcoholism as the reason he supported his faith-based initiative. ‘My philosophy is, find somebody who hurts and do something about it,’ he said. ‘Don’t wait for government to tell you what to do.’ He bluntly talked about his own situation. ‘I was beginning to love alcohol over my wife and kids. It got to a point when Billy Graham came into my life. But I was hardheaded and didn’t want to listen for a while. And then I stopped drinking overnight. I am a one-man faith-based initiative. Alcohol was competing for my affections. And it would have ruined me.’ He said things that could ruffle feathers, such as how he’d recently gone to a faith-based program run by ‘former drunks.’ He said he went to see a prison ministry program, noting that ‘everyone was black, of course.’ All eyes turned in search of the sole African American in the audience of donors. They wanted to see if he was offended.” Latimer will write that the sole African-American donor did not “appear to be” offended, and will defend Bush, writing that he “didn’t mean it in a derogatory way. He just liked making blunt observations to shock his audience.” [Think Progress, 9/23/2009]
Senator John D. Rockefeller (D-WV) lets slip the news that changes proposed to US surveillance laws drastically increase the government’s ability to conduct electronic surveillance inside the US. While speaking against an amendment that would require the government to destroy non-emergency evidence procured through domestic surveillance if a court later finds the surveillance was illegal, Rockefeller reveals that the new laws will not just “make it easier for the NSA to wiretap terrorists,” as the argument goes, but will allow the NSA to, in reporter Ryan Singel’s words, “secretly and unilaterally install filters inside America’s phone and Internet infrastructure.” Rockefeller tells his fellow senators: “Unlike traditional [Foreign Intelligence Surveillance Act] application orders which involve collection on one individual target, the new FISA provisions create a system of collection. The courts role in this system of collection is not to consider probable cause on individual targets but to ensure that procedures used to collect intelligence are adequate. The courts’ determination of the adequacy of procedures therefore impacts all electronic communications gathered under the new mechanisms, even if it involves thousands of targets.” Singel puts it more plainly: “In short, the changes legalize Room 641A, the secret spying room inside AT&T’s San Francisco Internet switching center” (see November 7-8, 2007). FISA judges will, if the law is passed, no longer evaluate whether the government has sufficient cause to eavesdrop on someone inside the US. Instead, the judges will only be able to evaluate descriptions of what the NSA is doing with its “filters.” There is no provision in the new bill to penalize the NSA for conducting illegal surveillances. [Wired News, 2/5/2008]
Two civil liberties organizations, the Electronic Frontier Foundation (EFF) and the Asian Law Caucus (ALC), file a joint lawsuit against the US Department of Homeland Security. The two organizations file under the Freedom of Information Act (FOIA), and demand that DHS make available its records on the questioning and searches of lawful travelers through US borders. The suit follows a large number of complaints by US citizens, immigrants, and visitors who have spoken out about what they term excessive and repeated screenings by US Customs and Border Protection agents (see 2007). ALC’s Shirin Sinnar says, “When the government searches your books, peers into your computer, and demands to know your political views, it sends the message that free expression and privacy disappear at our nation’s doorstep. The fact that so many people face these searches and questioning every time they return to the United States, not knowing why and unable to clear their names, violates basic notions of fairness and due process.” EFF’s Marcia Hofmann agrees, saying, “The public has the right to know what the government’s standards are for border searches. Laptops, phones, and other gadgets include vast amounts of personal information. When will agents read your email? When do they copy data, where is it stored, and for how long? How will this information follow you throughout your life? The secrecy surrounding border search policies means that DHS has no accountability to America’s travelers.” [Electronic Frontier Foundation, 2/7/2008; Electronic Frontier Foundation, 2/7/2008] The lawsuit demands the public release of DHS’s policies on border searches and interrogations. It also demands an explanation as to how far government agents can go in questioning and searching citizens who are not suspected of any crime. The question of whether federal agents have the right to search electronic devices at all without suspicion of a crime is already under review in the federal courts.
Racial or Religious Profiling? - Almost all of the complaints come from travelers of Muslim, Middle Eastern, or South Asian descent. Many of the complainants believe they were targeted because of racial or religious profiling. US Customs and Border Protection spokeswoman Lynn Hollinger denies the charge. It is not her agency’s “intent to subject travelers to unwarranted scrutiny,” she says, and adds that a laptop may be seized if it contains information possibly tied to terrorism, narcotics smuggling, child pornography or other criminal activity. However, a Customs officers training guide says that “it is permissible and indeed advisable to consider an individual’s connections to countries that are associated with significant terrorist activity.” Law professor David Cole asks, “What’s the difference between that and targeting people because they are Arab or Muslim?” [Washington Post, 2/7/2008]
Attorney General Michael Mukasey says he will not investigate the government’s use of waterboarding. “No, I am not, for this reason: Whatever was done as part of a CIA program at the time that it was done was the subject of a [Justice Department] opinion through the Office of Legal Counsel and was found to be permissible under the law as it existed then.” [Mother Jones, 2/7/2008]
The Defense Department announces that it is bringing death penalty charges against six high-value enemy detainees currently being held at the Guantanamo Bay detention camp. The six, all charged with involvement in the 9/11 attacks, will be tried under the much-criticized military tribunal system (see October 17, 2006) implemented by the Bush administration. They are:
Khalid Shaikh Mohammed, a Pakistani who claims responsibility for 31 terrorist attacks and plots, is believed to have masterminded the 9/11 attacks, and claims he beheaded Wall Street Journal reporter Daniel Pearl (see January 31, 2002). Mohammed was subjected to harsh interrogation tactics by the CIA, including waterboarding.
Ali Adbul Aziz Ali, Mohammed’s nephew and cousin of jailed Islamist terrorist Ramzi Yousef. He is accused of facilitating the attacks by sending $120,000 to US-based terrorists, and helping nine of the hijackers enter the US.
Ramzi Bin al-Shibh, accused of being a link between al-Qaeda and the 9/11 hijackers. Bin al-Shibh is accused of helping some of the hijackers obtain flight training.
Khallad bin Attash, who has admitted planning the attack on the USS Cole (see October 12, 2000) and is accused of running an al-Qaeda training camp in Afghanistan. He claims to have helped in the bombing of the US embassy in Kenya (see 10:35-10:39 a.m., August 7, 1998).
Mustafa Ahmad al-Hawsawi, accused of being a financier of the 9/11 attacks, providing the hijackers with cash, clothing, credit cards, and traveller’s checks.
Mohamed al-Khatani, another man accused of being a “20th hijacker;” al-Khatani was stopped by immigration officials at Orlando Airport while trying to enter the US. He was captured in Afghanistan.
Many experts see the trials as part of an election-year effort by the Bush administration to demonstrate its commitment to fighting terrorism, and many predict a surge of anti-American sentiment in the Middle East and throughout the Islamic world. Some believe that the Bush administration is using the trials to enhance the political fortunes of Republican presidential candidate John McCain, who has made the US battle against al-Qaeda a centerpiece of his campaign. “What we are looking at is a series of show trials by the Bush administration that are really devoid of any due process considerations,” says Vincent Warren, the executive director head of the Center for Constitutional Rights, which represents many Guantanamo detainees. “Rather than playing politics the Bush administration should be seeking speedy and fair trials. These are trials that are going to be based on torture as confessions as well as secret evidence. There is no way that this can be said to be fair especially as the death penalty could be an outcome.”
Treatment of Detainees an Issue - While the involvement of the six detainees in the 9/11 attacks is hardly disputed, many questions surround their treatment at Guantanamo and various secret “black sites” used to house and interrogate terror suspects out of the public eye. Questions are being raised about the decision to try the six men concurrently instead of separately, about the decision to seek the death penalty, and, most controversially, the admissibility of information and evidence against the six that may have been gathered by the use of torture.
Details of Forthcoming Tribunals - While the charges are being announced now, Brigadier General Thomas Hartmann, the Pentagon official supervising the case, acknowledges that it could be months before the cases actually begin, and years before any possible executions would be carried out. Hartmann promises the trials will be “as completely open as possible,” with lawyers and journalists present in the courtroom unless classified information is being presented. Additionally, the six defendants will be considered innocent until proven guilty, and the defendants’ lawyers will be given “every stitch of evidence” against their clients.
'Kangaroo Court' - British lawyer Clive Stafford Smith, who has worked with “enemy combatants” at Guantanamo, believes nothing of what Hartmann says. The procedures are little more than a “kangaroo court,” Stafford Smith says, and adds, “Anyone can see the hypocrisy of espousing human rights, then trampling on them.” Despite Hartmann’s assurances, it is anything but clear just what rights the six defendants will actually have. [Independent, 2/12/2008] The charges against al-Khahtani are dropped several months later (see May 13, 2008).
Entity Tags: Vincent Warren, US Department of Defense, Khallad bin Attash, Daniel Pearl, Clive Stafford Smith, John McCain, Mohamed al-Khatani, Khalid Shaikh Mohammed, Thomas Hartmann, Center for Constitutional Rights, Ramzi Yousef, Ramzi bin al-Shibh, Bush administration (43), Mustafa Ahmed al-Hawsawi, Ali Abdul Aziz Ali, Al-Qaeda
Timeline Tags: Complete 911 Timeline, 9/11 Timeline
Michael Futi. [Source: Honolulu Advertiser]A 14-day old child dies after he and his mother are locked in a Department of Homeland Security (DHS) secure room at Honolulu International Airport. Luaipou Futi flew her son, Michael Tony Futi, from their home in American Samoa for heart surgery. Michael becomes increasingly distressed in the hot room; his mother and a nurse who accompanied them to Hawaii, Arizona Veavea, bang on the door and shout for help. While the baby struggles to breathe and the two women beg for someone to call 911, people on the other side order them to stay calm and refuse to let them out. After 30 minutes of pleading, the door is opened. Fifteen minutes later, city paramedics take Michael to the Moana-lua Medical Center. Michael dies later in the morning. A translator, Simamao Nofoa, says of Mrs. Futi: “She was so happy—the minute she got on that plane—because she knew her baby was coming here…. They were the first ones out of the plane. If they would let them come immediately, her baby would have still been here. Her son would have still been alive. She’s heartbroken. She can’t eat. She can’t sleep…. She’s traumatized.” The Futis were scheduled to go directly from the hospital to Kapi’olani Medical Center for Women and Children, where Michael was scheduled to be hospitalized. But immigration officials detained the Futis for some apparent problem with Mrs. Futi’s visa waiver form. A lawyer retained by Mrs. Futi, Rick Fried, says all of their travel documents were in order, and shows the documents as proof. Veavea says that she tried to explain to the DHS officials that the baby was ill and needed immediate medical treatment, and asked if she and the baby can be released while officials dealt with Mrs. Futi’s documents. The officials refused, and detained everyone. Fried says: “Even if they had a valid cause for holding the mother of the baby… there is absolutely no basis for holding the baby or the baby’s nurse, who traveled with no luggage.… [T]he baby and the nurse are naturalized American citizens and have a US passport.” Fried also notes that airport personnel should have taken notice that Michael flew from Samoa to Hawaii while hooked up to an oxygen tank. [Honolulu Advertiser, 2/13/2008]
Senator John McCain (R-AZ), the presumptive Republican nominee for president, urges President Bush to veto an upcoming bill prohibiting waterboarding and other extreme methods of interrogation after himself voting against the bill. The bill passes the Senate on a largely partisan 51-45 vote. It has already passed the House on a similar party-line vote, and Bush has already announced his intention to veto the bill. McCain has won a reputation as an advocate of prisoner rights and a staunch opponent of torture; his five-year stint as a POW in North Vietnam is well-known. But McCain voted against the legislation when it came up for a vote in the Senate, and he opposes the bill now. McCain says he is opposed to waterboarding, but does not want the CIA restricted to following the practices outlined in the US Army Field Manual, as the legislation would require. McCain says: “I knew I would be criticized for it. I think I can show my record is clear. I said there should be additional techniques allowed to other agencies of government as long as they were not” torture. “I was on the record as saying that they could use additional techniques as long as they were not cruel, inhumane and degrading treatment. So the vote was in keeping with my clear record of saying that they could have additional techniques, but those techniques could not violate” international rules against torture. McCain has said he believes waterboarding is already prohibited by the Detainee Treatment Act of 2005 (see December 30, 2005). And CIA director Michael Hayden has said that current law may well prohibit waterboarding; he claims to have stopped CIA agents from waterboarding detainees in 2006, and also claims that the technique was not used later than 2003. McCain’s Senate colleague, Charles Schumer (D-NY) says that if Bush vetoes the bill, then he in essence “will be voting in favor of waterboarding.” [New York Times, 2/13/2008; Associated Press, 2/21/2008] Bush will indeed veto the bill (see March 8, 2008).
Steven Bradbury, the head of the Justice Department’s Office of Legal Counsel (OLC), tells the House Judiciary Committee that the Bush administration routinely allowed the CIA to use interrogation tactics that were “quite distressing, uncomfortable, even frightening,” as long as they did not cause enough severe and lasting pain to constitute illegal torture. One of those techniques, waterboarding, is legal and not torture, Bradbury says, because it is a “procedure subject to strict limitations and safeguards.” Those standards and limitations make waterboarding as used by the CIA substantially different from historical uses of the technique as it was employed during the Spanish Inquisition and by the Japanese during World War II. Bradbury, asked if waterboarding violates US and international laws against torture, says it does not. Waterboarding as practiced by the CIA bears “no resemblance” to what torturers in time past have done. “There’s been a lot of discussion in the public about historical uses of waterboarding,” Bradbury says. The “only thing in common is the use of water.” Spanish and Japanese water torture techniques “involved the forced consumption of a mass amount of water.” When asked if he is aware of any “modern use” of waterboarding that involves the “lungs filling with water,” Bradbury says he is not. Bradbury says that the Japanese forced the ingestion of so much water that it was “beyond the capacity of the victim’s stomach.” Weight or pressure was then applied by standing or jumping on the stomach of the victim, sometimes leading to “blood coming of the victim’s mouth.” The Spanish Inquisition would use the technique to the point of “agony or death.” The CIA does not do that, Bradbury says. “Strict time limits” are involved—presumably governing the length of time that interrogators can induce the sensation of drowning. Additionally, “safeguards” and “restrictions” make waterboarding a much more controlled procedure. Together, waterboarding as practiced by the CIA is not torture. However, Bradbury admits that recent Supreme Court decisions have changed the OLC’s analysis, and says that in 2006 the CIA stopped using waterboarding. [TPM Muckraker, 2/14/2008; Washington Post, 2/18/2008]
Bradbury's Comparison 'Obscene' - Bradbury claimed that no water entered the lungs of three al-Qaeda captives subjected to the practice; many believe that those captives had cellophane or cloth over their noses and mouths while waterboarded. Torture experts say that practice poses a serious risk of asphyxiation. Former OLC official Martin Lederman says he finds Bradbury’s testimony “chilling.” Lederman notes that “to say that this is not severe physical suffering—is not torture—is absurd. And to invoke the defense that what the Spanish Inquisition did was worse and that we use a more benign, non-torture form of waterboarding… is obscene.” Human rights experts have said that the CIA’s particular form of waterboarding is similar to those practiced by such regimes as the Khmer Rouge in Cambodia, the French colonial government in Algeria, and the government of Myanmar (Burma). All three of those regimes have been criticized for brutality and flagrant human rights violations. [Washington Post, 2/18/2008]
Admiral Mike McConnell, the director of national intelligence, admits during a radio interview that the main issue over the renewal of the Protect America Act (PAA) (see August 5, 2007) is not the security and safety of the nation, but the need to extend liability immunity to the nation’s telecommunications firms. In recent days, President Bush has said that unnamed terrorists are planning attacks on the US that will make 9/11 “pale by comparison,” and the only way to stop those attacks is to renew the PAA with new provisions that will grant telecommunications firms such as BellSouth, Verizon, and AT&T retroactive immunity from prosecution. Those firms are accused of illegally aiding the government in electronically monitoring the telephone and e-mail conversations of US citizens (see February 5, 2006). The PAA expires on February 16, but the government can operate under its provisions for another year. McConnell tells a National Public Radio reporter that the biggest issue surrounding the legislation is liability protection for the telecom firms. “We can’t do this mission without their help,” he says. “Currently there is no retroactive liability protection for them. They’re being sued for billions of dollars.” They did not break the law, McConnell asserts, but the lawsuits are curtailing their willingness to cooperate with the government. “The Senate committee that passed the bill examined the activities of the telecom companies and concluded they were not violating the law,” he says. By not extending retroactive immunity, McConnell says, “we’d lose the capability to protect the country.” [National Public Radio, 2/15/2008] Two days later, McConnell echoes his unusually frank admission. Interviewed on Fox News, he says: “Let me make one other point just—very important. The entire issue here is liability protection for the carriers. And so the old law and extended law are an expired law if we don’t have retroactive liability protection for the carriers. They are less inclined to help us, and so their support.… And therefore, we do not have the agility and the speed that we had before to be able to move and try to capture [terrorists’] communications to thwart their planning.” He also implies that the argument against granting immunity—if the telecoms’ actions were legal in the first place then they wouldn’t need immunity—is valid. Interviewer Chris Wallace says: “Isn’t the central issue here that you’ve lost your power to compel telecommunications companies to cooperate with you and also your ability to offer them legal immunity? Again, the Democrats would say, ‘Look, if the cooperation is legal, they don’t need legal immunity.’” McConnell replies: “Exactly right. The issue now is there’s uncertainty because the law has expired and the law of August, the Protect America Act, allowed us to compel—compel—support from a private carrier. That’s now expired.… [T]he private sector, although willingly helped us [sic] in the past, are now saying, ‘You can’t protect me. Why should I help you?’” Interestingly, after all of the talk of imminent terror attacks, when Wallace asks, “Do you believe al-Qaeda is more of a threat now than any time since 9/11?” McConnell says flatly: “No. Following 9/11, al-Qaeda’s leadership and operatives were degraded probably two-thirds or three-quarters.” House Majority Leader Steny Hoyer (D-MD) responds that the administration’s attempt to tie the renewal of the PAA into the threat of future terrorist attacks is “wrong, divisive and nothing but fear-mongering.” Senator Edward Kennedy (D-MA) adds that McConnell’s “latest comments show yet again the shamelessness of the administration’s tactics.” [Fox News, 2/17/2008]
The Protect America Act (PAA—see August 5, 2007) expires today. Congress has refused to pass a reauthorization of the legislation that contains a provision to grant retroactive immunity to US telecommunications firms to protect them from lawsuits arising from their previous cooperation with government eavesdroppers (see February 5, 2006). President Bush has warned for days that by refusing to reauthorize the bill, Congress is leaving the US “more in danger of attack.” The surveillance elements of the PAA will continue in force for another year after its passage even as the PAA itself expires, so the government’s capability to use electronic surveillance against suspected terrorists and citizens alike continues unabated through August 2008.
Republican Reaction - House Minority Leader John Boehner (R-OH) warns, “This is a grave problem, and the Democrat leaders ought to be held accountable for their inaction.” Senate Minority Leader Mitch McConnell (R-KY) says, “The companies have been waiting for six months for retroactive liability” protection. “They are under pressure from their directors, pressure from their shareholders, and you’re jeopardizing the entire existence of the company by continuing to do this.”
Democratic Reaction - But House Democrats seem to be in no mood to give in to Bush’s rhetoric. Speaker of the House Nancy Pelosi (D-CA) says Bush is “misrepresenting the facts on our nation’s electronic-surveillance capabilities.” “There is no risk the program will go dark,” says Silvestre Reyes (D-TX), chairman of the House Intelligence Committee. Many Democrats accuse the administration of putting the interests of telecom firms over national security—accusations that intensify after Bush’s Director of National Intelligence, Mike McConnell, admitted that the real issue behind the reauthorization is the immunity for telecoms (see February 15-17, 2008). Senator Edward Kennedy (D-MA) says that the entire argument is “nothing more than a scare tactic designed to avoid legal and political accountability and keep Americans in the dark about the administration’s massive lawbreaking.” House member Tim Walz (D-MN) says, “Coming from a military background, I sure don’t downplay that there are threats out there, but the president’s demagoguery on this is the equivalent of the boy crying wolf.” And Rahm Emanuel (D-IL), the head of the House Democratic Caucus, says bluntly: “This is not about protecting Americans. The president just wants to protect American telephone companies.”
Previous Depiction - When the law was signed into effect August 5, 2007, it was portrayed by the White House as “a temporary, narrowly focused statute to deal with the most immediate needs of the intelligence community to protect the country.” Now it is being portrayed by Bush officials as the cornerstone of the nation’s terrorist-surveillance program. The issue is sure to resurface when Congress returns from a week-long break in late February. [Associated Press, 2/14/2008; Washington Post, 2/16/2008]
With the Protect America Act expiring amid warnings of imminent terror attacks from Bush administration officials and Congressional Republicans (see February 16, 2008 and February 15-17, 2008), most experts outside the administration say its expiration will have little effect on national security. Under the PAA, the government could wiretap domestic phones and computer systems without a warrant, but the legislation was considered a temporary stopgap measure to give Congress and the White House a chance to work together to create new, permanent regulations covering domestic surveillance. The government’s domestic wiretapping program now reverts to the procedures followed for 30 years under the Foreign Intelligence Surveillance Act (FISA), which requires warrants from the FISA Court to engage in surveillance inside the US. Despite administration claims that the paperwork for those warrants is too cumbersome, many experts say that FISA gives the government the tools it needs to spy on terrorists. Timothy Lee from the conservative Cato Institute recalls that the last time FISA was revamped, after the 9/11 attacks, President Bush praised the overhaul, saying it “recognizes the realities and dangers posed by the modern terrorist.” Lee observes: “Those are the rules we’ll be living under after the Protect America Act expires this weekend. There’s no reason to think our nation will be in any more danger in 2008 than it was in 2002, 2003, 2004, 2005, or 2006.” Ben Wittes of the centrist Brookings Institution says that because existing warrantless surveillance begun under the temporary laws could continue for up to a year, the “sky is not falling at all.” Wittes says he is “somewhat bewildered by the apocalyptic rhetoric” of the Bush administration. Many experts note that emergency FISA warrants can, and have, been granted in a matter of minutes, and government eavesdroppers have up to three days to wiretap a phone or computer and then retroactively acquire a warrant. But administration officials have a different view. White House press secretary Dana Perino says the PAA’s expiration “will harm our ability to conduct surveillance to detect new threats to our security, including the locations, intentions and capabilities of terrorists and other foreign intelligence targets abroad.” Perino says that the PAA “temporarily closed” a “dangerous intelligence gap.” House Majority Leader Steny Hoyer (D-MD) calls that warning “categorically false.” Hoyer continues: “In fact, a wide range of national security experts has made clear that the president and our intelligence community have all the tools they need to protect our nation, if the Protect America Act—temporary legislation passed last August—expires.… We believe the president’s rhetoric is inaccurate and divisive, and an attempt to stampede the House of Representatives to rubber-stamp legislation by stoking the fears of the American people. We will not be stampeded.” [Washington Times, 2/16/2008]
The Justice Department’s Inspector General, Glenn Fine, writes to Senators Richard Durbin (D-IL) and Sheldon Whitehouse (D-RI). Fine is responding to their request for an investigation of Justice Department officials’ role in authorizing and overseeing the use of waterboarding by CIA interrogators at the Guantanamo Bay detention facility. Fine notes: “[U]nder current law, the OIG [Office of the Inspector General] does not have jurisdiction to review the actions of [Justice Department] attorneys acting in their capacity to provide legal advice. Legislation that would remove this limitation has passed the House and is pending in the Senate (see April 23, 2008), but at this point the OIG does not have the jurisdiction to undertake the review you request.” [US Department of Justice, 2/19/2008 ]
The Bush administration says all major US telecommunications firms have agreed to cooperate “for the time being” with US intelligence agencies’ wiretapping, regardless of the recent expiration of the Protect America Act (PAA) (see February 16, 2008). According to a joint statement from the Justice Department and the Office of the Director of National Intelligence, wiretaps will resume under the current law “at least for now.” The statement says in part, “Although our private partners are cooperating for the time being, they have expressed understandable misgivings about doing so in light of the ongoing uncertainty and have indicated they may well discontinue cooperation if the uncertainty persists.” Attorney General Michael Mukasey and Director of National Intelligence Mike McConnell said earlier that intelligence agencies have missed critical intelligence because of the expiration of the PAA, a claim they retracted hours later (see February 23, 2008). [Reuters, 2/23/2008]
Joseph Margulies. [Source: PBS]Joseph Margulies, a law professor at Northwestern University, and lawyer George Brent Mickum write of their plans to meet with Guantanamo detainee Abu Zubaida (see March 28, 2002) as part of his legal defense team. The lawyers write: “Zubaydah’s world became freezing rooms alternating with sweltering cells. Screaming noise replaced by endless silence. Blinding light followed by dark, underground chambers. Hours confined in contorted positions. And, as we recently learned, Zubaydah was subjected to waterboarding. We do not know what remains of his mind, and we will probably never know what he experienced.” What exactly the CIA did to Zubaida may never be determined, as the agency destroyed the videotapes of his interrogations (see Spring-Late 2002). Zubaida’s subsequent confessions to FBI agents are essentially meaningless, the lawyers assert, because his will and mind were already irrevocably broken by the time of the FBI interviews. The lawyers hope to piece together what Zubaida knew and what was done to him, although they are not confident they will be given the documentation necessary to find out what they want to know. They fear that, if they are not able to learn the truth of Zubaida’s participation with al-Qaeda and the interrogation methods he was subjected to, then in his and others’ cases, the truth will be “only what the administration reports it to be. We hope it has not come to that.” [Washington Post, 2/23/2008]
Representative Peter Hoekstra (R-MI) pens a blistering op-ed for the conservative National Review that accuses House Democrats of allowing the Protect America Act to expire (PAA—see February 16, 2008) and thereby endangering the country by leaving it unprotected against terrorist attacks. This is the same argument President Bush and Republicans have advanced in recent days in favor of continued warrantless wiretapping (see February 23, 2008). Hoekstra calls the Democrats’ action “unprecedented irresponsibility.” The “burdensome paperwork, government lawyers, and court orders” that implementing wiretaps will now engender, Hoekstra writes, “could mean the difference in stopping a terrorist plot or saving the life of an American soldier.” Hoekstra quickly turns to another key agenda for reauthorizing the PAA—providing retroactive immunity from lawsuits for American telecommunications firms. He echoes the arguments of Bush and other officials such as Attorney General Michael Mukasey and Director of National Intelligence Mike McConnell (see February 22, 2008) by writing that without such immunity, “these companies obviously will be reluctant to cooperate with the government in the future.” But Hoekstra takes the argument even farther, equating the Democrats’ refusal to reauthorize the PAA with their support from trial lawyers, who “have contributed more $1.5 million to Democrat coffers.” He then says that US intelligence agents will suffer because, he asserts, “many of [them] have been forced to take out professional liability insurance to protect them from the actions of the Democratic Congress.” Hoekstra claims that Democrats consistently favor working to investigate global warming over protecting the nation. [National Review, 2/25/2008] Hoekstra continues the attack the next day with a piece in the Wall Street Journal co-authored with his House colleague Lamar Smith (R-TX) and his Senate colleague Christopher “Kit” Bond (R-MO). The three open this column with the rhetorical question, “Are Americans as safe today as they were before Congress allowed the Protect America Act to expire on Feb. 16?” and answer it with much the same arguments that Hoekstra advanced the day before. “We are less safe today and will remain so until Congress clears up the legal uncertainty for companies that assist in collecting intelligence for the government—and until it gives explicit permission to our intelligence agencies to intercept, without a warrant, foreign communications that pass through the US,” they claim. They also echo the claim asserted by McConnell and Mukasey that the nation’s intelligence community has lost valuable intelligence because of the lapse in legislation—without acknowledging that McConnell and Mukasey withdrew that claim within hours (see February 23, 2008). [Wall Street Journal, 2/26/2008]
National security lawyer Suzanne Spaulding says that the constitutional question of whether the US government can examine a large array of information about citizens contained in its databases (see 1980s or Before) without violating an individual’s reasonable expectation of privacy “has never really been resolved.” She adds that it is “extremely questionable” to assume Americans do not have a reasonable expectation of privacy for data such as the subject-header of an e-mail or a Web address from an Internet search, because those are more like the content of a communication than a phone number. “These are questions that require discussion and debate,” she says. “This is one of the problems with doing it all [collecting data on citizens] in secret.” [Wall Street Journal, 3/10/2008]
A new investigation modeled on the Church Committee, which investigated government spying (see April, 1976) and led to the passage of the Foreign Intelligence Surveillance Act (FISA - see 1978) in the 1970s, is proposed. The proposal follows an amendment to wiretapping laws that immunizes telecommunications companies from prosecution for illegally co-operating with the NSA. A detailed seven-page memo is drafted outlining the proposed inquiry by a former senior member of the original Church Committee.
Congressional Investigative Body Proposed - The idea is to have Congress appoint an investigative body to discover the full extent of what the Bush White House did in the war on terror that may have been illegal and then to implement reforms aimed at preventing future abuses—and perhaps to bring accountability for wrongdoing by Bush officials. Key issues to investigate include:
The NSA’s domestic surveillance activities;
The CIA’s use of rendition and torture against terrorist suspects;
The U.S. government’s use of military assets—including satellites, Pentagon intelligence agencies, and U2 surveillance planes—for a spying apparatus that could be used against people in the US; and
The NSA’s use of databases and how its databases, such as the Main Core list of enemies, mesh with other government lists, such as the no-fly list. A deeper investigation should focus on how these lists feed on each other, as well as the government’s “inexorable trend towards treating everyone as a suspect,” says Barry Steinhardt, the director of the Program on Technology and Liberty for the American Civil Liberties Union (ACLU).
Proposers - The proposal is a product of talks between civil liberties advocates and aides to Democratic leaders in Congress. People consulted about the committee include aides to House Speaker Nancy Pelosi (D-CA) and Judiciary Committee chairman John Conyers (D-MI). The civil liberties organizations include the ACLU, the Center for Democracy and Technology, and Common Cause. However, some Democrats, such as Pelosi, Senate Intelligence Committee chairman John D. Rockefeller (D-WV), and former House Intelligence chairwoman Jane Harman (D-CA), approved the Bush administration’s operations and would be made to look bad by such investigation.
Investigating Bush, Clinton Administrations - In order that the inquiry not be called partisan, it is to have a scope going back beyond the start of the Bush administration to include the administrations of Bill Clinton, George H. W. Bush, and Ronald Reagan. The memo states that “[t]he rise of the ‘surveillance state’ driven by new technologies and the demands of counter-terrorism did not begin with this administration.” However, the author later says in interviews that the scope of abuse under George W. Bush would likely be an order of magnitude greater than under preceding presidents.
'Imagine What We Don't Know' - Some of the people involved in the discussions comment on the rationale. “If we know this much about torture, rendition, secret prisons, and warrantless wiretapping despite the administration’s attempts to stonewall, then imagine what we don’t know,” says a senior Democratic congressional aide who is familiar with the proposal. Steinhardt says: “You have to go back to the McCarthy era to find this level of abuse. Because the Bush administration has been so opaque, we don’t know [the extent of] what laws have been violated.” “It’s not just the ‘Terrorist Surveillance Program,’” says Gregory Nojeim from the Center for Democracy and Technology. “We need a broad investigation on the way all the moving parts fit together. It seems like we’re always looking at little chunks and missing the big picture.”
Effect on Presidential Race Unknown - It is unknown how the 2008 presidential race may affect whether the investigation ever begins, although some think that Democratic candidate Barack Obama (D-IL), said to favor open government, might be more cooperative with Congress than his Republican opponent John McCain (R-AZ). However, a participant in the discussions casts doubt on this: “It may be the last thing a new president would want to do.” [Salon, 7/23/2008]
A federal judge dismisses a lawsuit seeking to halt sales of the so-called “morning-after” birth control pill, the only such drug available in the US without a prescription. In 2006, the FDA reversed its 2004 decision not to allow the drug to be sold over the counter (see May 6, 2004 and After) to anyone 18 years of age or older. The suit was brought by the Association of American Physicians and Surgeons and a number of anti-abortion and social conservative groups. The US District Court in the District of Columbia finds that the plaintiffs failed “to identify a single individual who has been harmed by Plan B’s OTC [over-the-counter] availability.” The ruling is widely considered to be a victory for advocates of reproductive rights. “They still don’t have any evidence in terms of why they think it is harmful,” says Janet Crepps of the Center for Reproductive Rights (CRR). “This is the right decision for women.” A lawsuit filed by the CRR to force OTC sales of the drug to girls under 18 is still pending (see April 22, 2009). [Reuters, 3/4/2008]
Justice Department attorney Brian Benczkowski replies to a follow-up letter from Senator Ron Wyden (D-OR), who is challenging the department’s claims that the CIA detainee interrogation program is fully compliant with US and international law (see December 20, 2007). Much of Benczkowski’s letter is a reiteration of points made in an earlier letter (see September 27, 2007), even citing the same legal cases that Wyden challenged as not directly relevant to the Justice Department’s arguments. Benczkowski reiterates that the definitions of “humane treatment” and “cruel, inhuman, and degrading treatment” are flexible, in the department’s view, and can change drastically depending on the identity of the detainee and the circumstances surrounding his interrogation. The standards of compliance are also mitigated by the “nature and importance of the government interest,” he claims, giving as an example the possibility of abrogating a detainee’s fundamental rights under the Geneva Conventions and other statutes in order to force information about an impending terrorist attack from him. Benczkowski reiterates that the Eighth Amendment only applies to prisoners after they have been convicted of a crime; hence, detainees never tried or charged for crimes have no rights under that amendment. It is apparent that Benczkowski considers the discussion closed; he concludes his letter with the statement, “Please do not hesitate to contact the Department if we can be of assistance in other matters.” [US Department of Justice, 3/6/2008 ]
The online news site Wired News reveals that a “whistleblower” is alleging that the US government has had direct, high-speed access to a major wireless carrier’s systems, exposing US citizens’ telephone calls, data transmissions, and even physical movements to potentially illegal government surveillance. Babak Pasdar, the CEO of Bat Blue and a former computer security consultant, says he worked for the unnamed carrier in late 2003. “What I thought was alarming is how this carrier ended up essentially allowing a third party outside their organization to have unfettered access to their environment,” Pasdar says. “I wanted to put some access controls around it; they vehemently denied it. And when I wanted to put some logging around it, they denied that.” According to Wired News, while Pasdar refuses to name the carrier, his claims are virtually identical to allegations made in a 2006 federal lawsuit against four telecommunications firms and the US government (see January 31, 2006); the suit named Verizon Wireless as taking actions similar to those claimed by Pasdar. Pasdar has provided an affidavit to the nonprofit Government Accountability Project (GAP), which has begun circulating the affidavit along with talking points to Congressional staffers. Congress is working on legislation that would grant retroactive immunity to telecommunications firms that worked with the government to illegally wiretap American citizens’ communications (see July 10, 2008). Pasdar says he learned of the surveillance in September 2003, when he led a team hired to revamp security on the carrier’s internal network. When he asked about a so-called “Quantico Circuit” linking its network to an unnamed third party, the carrier’s officials became uncommunicative (see September 2003). Quantico is the center of the FBI’s electronic surveillance operations. “The circuit was tied to the organization’s core network,” Pasdar writes in his affidavit. “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.” The “Quantico Circuit” was unshielded, which would have given the recipient unfettered access to customer records, data, and information. Pasdar tells a Wired News reporter, “I don’t know if I have a smoking gun, but I’m certainly fairly confident in what I saw and I’m convinced it was being leveraged in a less than forthright and upfront manner.” Verizon Wireless refuses to comment on Pasdar’s allegations, citing national security concerns. Representative John Dingell (D-MI), the chairman of the House Committee on Energy and Commerce, writes in response: “Mr. Pasdar’s allegations are not new to the Committee on Energy and Commerce, but our attempts to verify and investigate them further have been blocked at every turn by the administration. Moreover, the whistleblower’s allegations echo those in an affidavit filed by Mark Klein (see December 15-31, 2005 and July 7, 2009), a retired AT&T technician, in the Electronic Frontier Foundation’s lawsuit against AT&T.… Because legislators should not vote before they have sufficient facts, we continue to insist that all House members be given access to the necessary information, including the relevant documents underlying this matter, to make an informed decision on their vote. After reviewing the documentation and these latest allegations, members should be given adequate time to properly evaluate the separate question of retroactive immunity.” [Wired News, 3/6/2008] Klein will assist Pasdar in writing a letter opposing immunity for the telecom firms based on Pasdar’s evidence, a letter which GAP provides to newspapers across the country. However, Klein will write, only a few smaller newspapers will publish the letter. [Klein, 2009, pp. 103]
President Bush vetoes legislation passed by Congress that would have banned the CIA from using waterboarding and other “extreme” interrogation techniques. The legislation is part of a larger bill authorizing US intelligence activities. The US Army prohibits the use of waterboarding and seven other interrogation techniques in the Army Field Manual; the legislation would have brought the CIA in line with US military practices. Waterboarding is banned by many countries and its use by the US and other regimes has been roundly condemned by US lawmakers and human rights organizations. The field manual also prohibits stripping prisoners naked; forcing them to perform or simulate sexual acts; beating, burning, or otherwise inflicting harm; subjecting prisoners to hypothermia; subjecting prisoners to mock executions; withholding food, water, or medical treatment; using dogs to frighten or attack prisoners; and hooding prisoners or strapping duct tape across their eyes.
Reasoning for Veto - “Because the danger remains, we need to ensure our intelligence officials have all the tools they need to stop the terrorists,” Bush explains. The vetoed legislation “would diminish these vital tools.” Bush goes on to say that the CIA’s interrogation program has helped stop terrorist attacks on a US Marine base in Djibouti and the US consulate in Pakistan, as well as stopped plans for terrorists to fly hijacked planes into a Los Angeles tower or perhaps London’s Heathrow Airport. He gives no specifics, but adds, “Were it not for this program, our intelligence community believes that al-Qaeda and its allies would have succeeded in launching another attack against the American homeland.” John D. Rockefeller (D-WV), the head of the Senate Intelligence Committee, disagrees, saying he knows of no instances where the CIA has used such methods of interrogation to obtain information that led to the prevention of a terrorist attack. “On the other hand, I do know that coercive interrogations can lead detainees to provide false information in order to make the interrogation stop,” he says. CIA Director Michael Hayden says that the CIA will continue to work within both national and international law, but its needs are different from those of the Army, and it will follow the procedures it thinks best. Bush complains that the legislation would eliminate not just waterboarding, but “all the alternative procedures we’ve developed to question the world’s most dangerous and violent terrorists.” [Reuters, 3/8/2008; Associated Press, 3/8/2008]
Criticism of Veto - Democrats, human rights leaders, and others denounce Bush’s veto. Senator Dianne Feinstein (D-CA) says, “This president had the chance to end the torture debate for good, yet he chose instead to leave the door open to use torture in the future.” Feinstein notes that Bush ignored the advice of 43 retired generals and admirals, and 18 national security experts, who all supported the bill. “Torture is a black mark against the United States,” she says. House Speaker Nancy Pelosi (D-CA) says she and fellow Democrats will try to override the veto and thus “reassert [the United States’s] moral authority.” Elisa Massimino of Human Rights First says, “The president’s refusal to sign this crucial legislation into law will undermine counterterrorism efforts globally and delay efforts to rebuild US credibility on human rights.” [Associated Press, 3/8/2008] New York Times journalist Steven Lee Myers writes that Bush vetoes the bill not just to assert his support for extreme interrogation techniques or to provide the government everything it needs to combat terrorism, but as part of his ongoing battle to expand the power of the presidency. Myers writes, “At the core of the administration’s position is a conviction that the executive branch must have unfettered freedom when it comes to prosecuting war.” [New York Times, 3/9/2008]
Entity Tags: Nancy Pelosi, Human Rights First, George W. Bush, Elisa Massimino, Dianne Feinstein, Central Intelligence Agency, John D. Rockefeller, Michael Hayden, US Department of the Army, Senate Intelligence Committee, Steven Lee Myers
Timeline Tags: Torture of US Captives, Civil Liberties
Mohammed Jawad, a young Guantanamo detainee held in US captivity for almost six years (see December 17, 2002) and charged with attempted murder (see October 7, 2007), is arraiged before a military commission. Jawad refuses to accept the assistance of his military counsel, Air Force Major David Frakt, says he knows of no civilian lawyer who would represent him, and says he does not wish to represent himself. Jawad tells the court he has no desire to continue the proceedings. The judge rules that Frakt will continue to represent Jawad. [Human Rights First, 9/2008]
Lawyers for alleged enemy combatant Ali Saleh Kahlah al-Marri (see December 12, 2001) file papers with the court asserting that al-Marri was systematically abused by FBI and Defense Intelligence Agency (DIA) interrogators while in military custody. Al-Marri continues to be held in the Naval brig in Charleston, South Carolina (see June 23, 2003). Additionally, al-Marri was told that cabinets full of videotapes of his interrogations exist, according to the legal filings. Al-Marri has been in federal detention, without charge, since 2003. The New York Times has reported that about 50 videotapes of interrogation sessions with al-Marri and fellow detainee Jose Padilla (see May 8, 2002) were recently found by Pentagon officials (see March 13, 2008). DIA spokesman Donald Black admits that one tape shows al-Marri being gagged with duct tape, but says that al-Marri brought that treatment upon himself by chanting loudly and disruptively. One of al-Marri’s lawyers, Jonathan Hafetz, says that the treatment al-Marri has been forced to endure is far worse than anything Black describes—al-Marri, Hafetz says, has been subjected to stress positions, sensory deprivation, and threats of violence or death. “On several occasions, interrogators stuffed Mr. al-Marri’s mouth with cloth and covered his mouth with heavy duct tape,” says the legal filings. “The [duct] tape caused Mr. al-Marri serious pain. One time, when Mr. al-Marri managed to loosen the tape with his mouth, interrogators re-taped his mouth even more tightly. Mr. al-Marri started to choke until a panicked agent from the FBI or Defense Intelligence Agency removed the tape.” [United Press International, 3/13/2008; Washington Post, 3/31/2008]
The Pentagon reviews a compendium of videotaped interrogations conducted at numerous US military detention facilities, including Guantanamo Bay and in Iraq. It identifies at least 50 tapes, including one showing the forcible gagging of a suspect. Defense Department officials say that only a few of the tens of thousands of interrogations conducted since 2001 were recorded. Most were “routinely destroyed” if they were found to have no continuing value, according to Pentagon spokesman Don Black. Among the 50 or so tapes already identified are interrogations of two high-level “enemy combatants,” Ali Saleh Kahlah al-Marri and Jose Padilla. Both were interrogated at the Naval brig in Charleston, South Carolina. A tape of an interrogation of al-Marri shows the terrorist suspect being gagged and manhandled by FBI agents (see March 13, 2008), but not waterboarded or otherwise tortured. Black says that the director of the Defense Intelligence Agency, Lieutenant General Michael Maples, has reviewed the tape and is satisfied that al-Marri was treated in an acceptable fashion. As for other possible tapes, Admiral Mark H. Buzby, the military commander at Guantanamo, says, “We suspect that the recording devices contain recorded data but we are unable technologically to confirm whether data remains.” [New York Times, 3/13/2008]
The American Civil Liberties Union (ACLU) secures an 81-page memo from March 14, 2003 that gave Pentagon officials legal justification to ignore laws banning torture (see March 14, 2003). The Justice Department memo was written by John Yoo, then a top official at the Office of Legal Counsel, on behalf of then-Pentagon General Counsel William J. Haynes. It guides Pentagon lawyers on how to handle the legal issues surrounding “military interrogations of alien unlawful combatants held outside the United States.” According to Yoo’s rationale, if a US interrogator injured “an enemy combatant” in a way that might be illegal, “he would be doing so in order to prevent further attacks on the United States by the al-Qaeda terrorist network.” That motive, Yoo opines, justifies extreme actions as national self-defense. While the existence of the memo has been known for some time, this is the first time the public has actually seen the document. This memo is similar to other Justice Department memos that define torture as treatment that “shock[s] the conscience” and risks organ failure or death for the victim. Legal scholars call the memo evidence of “the imperial presidency,” but Yoo, now a law professor at the University of California at Berkeley, says the memo is unremarkable, and is “far from inventing some novel interpretation of the Constitution.” The ACLU receives the document as the result of a Freedom of Information Act (FOIA) request from itself, the New York Civil Liberties Union, and other organizations filed in June 2004 to obtain documents concerning the treatment of prisoners kept abroad. The Yoo memo is one of the documents requested. [John C. Yoo, 3/14/2003 ; United Press International, 4/2/2008; American Civil Liberties Union, 4/2/2008] According to the ACLU, the memo not only allows military officials to ignore torture prohibitions, but allows the president, as commander in chief, to bypass both the Fourth and Fifth Amendments (see April 2, 2008). [American Civil Liberties Union, 4/2/2008] The Fourth Amendment grants the right for citizens “to be secure in their persons” and to have “probable cause” shown before they are subjected to “searches and seizures.” The Fifth Amendment mandates that citizens cannot be “deprived of life, liberty, or property, without due process of law.” [Cornell University Law School, 8/19/2007] Amrit Singh, an ACLU attorney, says: “This memo makes a mockery of the Constitution and the rule of law. That it was issued by the Justice Department, whose job it is to uphold the law, makes it even more unconscionable.” [American Civil Liberties Union, 4/2/2008]
The American Civil Liberties Union (ACLU), fresh from obtaining the release of a 2003 Justice Department memo that justified torture for US military officials (see April 1, 2008), calls on the Bush administration to release a still-secret Justice Department memo from October 2001 that the 2003 memo used as legal justification to ignore the Fourth Amendment (see October 23, 2001). The Fourth Amendment protects against unlawful search and seizure. The 2001 memo claims that the “Fourth Amendment had no application to domestic military operations.” The ACLU believes that the Fourth Amendment justification “was almost certainly meant to provide a legal basis for the National Security Agency’s warrantless wiretapping program, which President Bush launched the same month the memo was issued” (see Shortly After September 11, 2001-October 2005), a claim the Justice Department denies. The NSA is part of the Defense Department. Jameel Jaffer, director of the ACLU’s National Security Project, says: “The recent disclosures underscore the Bush administration’s extraordinarily sweeping conception of executive power. The administration’s lawyers believe the president should be permitted to violate statutory law, to violate international treaties, and even to violate the Fourth Amendment inside the US. They believe that the president should be above the law.” No one has ever tried to assert, before this memo was written, that the Fourth Amendment was legally impotent for any reason or justification inside US borders. Jaffer notes that no court has ever ruled that the Fourth Amendment does not apply to the military: “In general, the government can’t send an FBI agent to search your home or listen to your phone calls without a warrant, and it can’t send a soldier to do it, either. The applicability of the Fourth Amendment doesn’t turn on what kind of uniform the government agent is wearing.” The ACLU has known about the October 2001 memo for several months, but until now has not known anything of its contents. In response to a 2007 Freedom of Information lawsuit, the Justice Department acknowledged the existence of “a 37-page memorandum, dated October 23, 2001, from a deputy assistant attorney general in OLC [Office of Legal Counsel], and a special counsel, OLC, to the counsel to the president, prepared in response to a request from the White House for OLC’s views concerning the legality of potential responses to terrorist activity.” The only information publicly known about the memo was that it was related to a request for information about the NSA’s warrantless wiretapping program. The ACLU has challenged the withholding of the October 2001 memo in court. [American Civil Liberties Union, 4/2/2008]
John Yoo, the author of the just-released 2003 torture memo that advocated virtually unlimited presidential powers and asserted that US military can torture terrorist suspects (see March 14, 2003 and April 1, 2008), says that the memo is anything but extraordinary, and accuses his Justice Department successors of giving in to political pressures. Yoo is a former Justice Department official who now teaches law at the University of California at Berkeley. Yoo says the Justice Department altered its opinions “for appearances’ sake,” and his successors “ignored the Department’s long tradition in defending the president’s authority in wartime.” The memo did not “invent… some novel interpretation of the Constitution… our legal advice to the president, in fact, was near boilerplate.” [Washington Post, 4/2/2008] Yoo says that memos such as his sacrificed sensibility for exactitude, and asserts that he felt it necessary to be as detailed and specific as possible. “You have to draw the line. What the government is doing is unpleasant. It’s the use of violence. I don’t disagree with that. But I also think part of the job unfortunately of being a lawyer sometimes is you have to draw those lines. I think I could have written it in a much more—we could have written it in a much more palatable way, but it would have been vague.” [Washington Post, 4/6/2008] Others do not agree with Yoo’s defense (see April 2-4, 2008).
The Electronic Frontier Foundation joins the American Civil Liberties Union in its skeptical response to the news of a secret October 2001 Justice Department memo that says the Fourth Amendment does not apply in government actions taken against terrorists (see April 2, 2008). “Does this mean that the administration’s lawyers believed that it could spy on Americans with impunity and face no Fourth Amendment claim?” it asks in a statement. “It may, and based on the thinnest of legal claims—that Congress unintentionally allowed mass surveillance of Americans when it passed the Authorization of Use of Military Force in… 2001 (see September 14-18, 2001) .… In short, it appears that the administration may view NSA domestic surveillance, including the surveillance of millions of ordinary Americans… as a ‘domestic military operation.’ If so, this Yoo memo would blow a loophole in the Fourth Amendment big enough to fit all of our everyday telephone calls, web searches, instant messages and emails through.… Of course, the [Justice Department’s] public defense of the NSA program also asserted that warrantless surveillance did not violate the Fourth Amendment.… But the memo referenced above raises serious questions. The public deserves to know whether the 2001 Yoo memo on domestic military operations—issued the same month that the NSA program began—asserted that the Fourth Amendment did not apply to domestic surveillance operations conducted by the NSA. And of course it reinforces why granting immunity aimed at keeping the courts from ruling on the administration’s flimsy legal arguments is wrongheaded and dangerous.” [Electronic Frontier Foundation, 4/2/2008]
Darrell Issa. [Source: Washington Post]Congressman Darrell Issa (R-CA) says during a House subcommittee meeting that he does not understand why the federal government should pay any more money to assist 9/11 emergency responders who have become ill after working at Ground Zero. Hundreds of firefighters, police officers, and paramedics have become ill, some terminally so, from exposure to smoke and toxins released in the collapse of the World Trade Center; the subcommittee is considering whether to reinstate federal funding for the 9/11 victims’ fund. Minutes after a retired New York City police officer, Michael Valentin, speaks of the serious health problems he has suffered since responding to the attacks, Issa says: “I have to ask why… the firefighters who went there and everyone in the City of New York needs to come to the federal government… How much money has the federal government put out post-9/11, including the buckets of $10 and $20 billion we just threw at the State and the City of New York versus how much has been paid out by the City and the State of New York?… It’s very simple: I can’t vote for additional money for New York if I can’t see why it would be appropriate to do this every single time a similar situation happens, which quite frankly includes any urban terrorist. It doesn’t have to be somebody from al-Qaeda. It can be someone who decides that they don’t like animal testing at one of our pharmaceutical facilities.” The attacks on the World Trade Center did not involve a dirty bomb or chemical weapons, Issa notes. “It simply was an aircraft, residue of the aircraft and residue of the materials used to build this building,” he adds. Issa’s colleague, Anthony Weiner (D-NY), is visibly enraged at Issa’s comments, replying, “The notion that this is the City of New York asking for more money because we were the point of attack on this country is absurd and insulting…. There are people every single day, bit by bit by bit, who are dying from that attack.” [Newsday, 4/1/2008; New York Post, 4/2/2008] A day later, Issa will retreat from the harshest of his comments after enduring a withering barrage of criticism (see April 3, 2008).
The American Civil Liberties Union learns of another Justice Department memo in a Freedom of Information Act (FOIA) response that produces a 2003 memo supporting the use of torture against terror suspects (see April 1, 2008). This 2001 memo (see October 23, 2001), says that the Constitution’s protections against unreasonable searches and seizures—fundamental Fourth Amendment rights—do not apply in the administration’s efforts to combat terrorism. The Bush administration now says it disavows that view.
Background - The memo was written by John Yoo, then the deputy assistant attorney general, and the same lawyer who wrote the 2003 torture memo. It was written at the request of the White House and addressed to then-Attorney General Alberto Gonzales. The administration wanted a legal opinion on its potential responses to terrorist activity. The 37-page memo itself has not yet been released, but was mentioned in a footnote of the March 2003 terror memo. “Our office recently concluded that the Fourth Amendment had no application to domestic military operations,” the footnote states, referring to a document titled “Authority for Use of Military Force to Combat Terrorist Activities Within the United States.”
Relationship to NSA Wiretapping Unclear - It is not clear exactly what domestic military operations the October memo covers, but federal documents indicate that the memo relates to the National Security Agency’s Terrorist Surveillance Program (TSP). The TSP began after the 9/11 attacks, allowing for warrantless wiretaps of phone calls and e-mails, until it stopped on January 17, 2007, when the administration once again began seeking surveillance warrants from the Foreign Intelligence Surveillance Court (see May 1, 2007). White House spokesman Tony Fratto says that the October 2001 memo is not the legal underpinning for the TSP. Fratto says, “TSP relied on a separate set of legal memoranda” outlined by the Justice Department in January 2006, a month after the program was revealed by the New York Times (see February 2001, After September 11, 2001, and December 15, 2005). Justice Department spokesman Brian Roehrkasse says department officials do not believe the October 2001 memo was about the TSP, but refuses to explain why it was included on FOIA requests for documents linked to the TSP.
No Longer Applicable - Roehrkasse says the administration no longer holds the views expressed in the October 2001 memo. “We disagree with the proposition that the Fourth Amendment has no application to domestic military operations,” he says. “Whether a particular search or seizure is reasonable under the Fourth Amendment requires consideration of the particular context and circumstances of the search.” The ACLU’s Jameel Jaffer is not mollified. “The recent disclosures underscore the Bush administration’s extraordinarily sweeping conception of executive power,” he says. “The administration’s lawyers believe the president should be permitted to violate statutory law, to violate international treaties and even to violate the Fourth Amendment inside the US. They believe that the president should be above the law.” He continues, “Each time one of these memos comes out you have to come up with a more extreme way to characterize it.” The ACLU has filed a court suit to challenge the government’s withholding of the memo. [Associated Press, 4/3/2008] Another civil rights group, the Electronic Frontier Foundation, joins the ACLU in challenging the memo (see April 2, 2008).
Entity Tags: Jameel Jaffer, Brian Roehrkasse, American Civil Liberties Union, Alberto R. Gonzales, Bush administration (43), Foreign Intelligence Surveillance Court, Terrorist Surveillance Program, US Department of Justice, John C. Yoo, Electronic Frontier Foundation, Tony Fratto
Timeline Tags: Civil Liberties
Legal experts and media observers react with shock and anger at former Justice Department lawyer John Yoo’s defense of his March 2003 torture defense (see April 2, 2008). Eugene Fidell, who teaches military justice at Yale and American University, says: “This is a monument to executive supremacy and the imperial presidency. It’s also a road map for the Pentagon for fending off any prosecutions.” [New York Times, 4/2/2008] Thomas J. Romig, the Army’s judge advocate general at the time the memo was issued, says that Yoo’s memo seems to argue that there are no rules in a time of war, an argument Romig finds “downright offensive.” [Washington Post, 4/2/2008] Retired Air Force General Richard B. Myers, chairman of the Joint Chiefs of Staff when the memo was written, says that he never saw the document authorizing harsh military interrogations and that its narrow definition of torture is “absolutely ludicrous.” Myers adds: “I frankly don’t know anyone in the military who bought into that as a good definition of when you cross the line. In the end, you want to do the right thing. I worry most about reciprocity, how other countries will treat us.” [Washington Post, 4/4/2008] Legal experts (see April 2-6, 2008) and media observers (see April 4, 2008) join in criticizing Yoo’s rationale for the torture memo.
Several legal experts join the retired military officials (see April 2-4, 2008) and media pundits (see April 4, 2008) who have spoken out against former Justice Department lawyer John Yoo’s 2003 torture memo (see April 2, 2008). Dawn Johnsen, the head of the Justice Department’s Office of Legal Counsel during the Clinton administration, says of Yoo’s memo: “Having 81 pages of legal analysis with its footnotes and respectable-sounding language makes the reader lose sight of what this is all about. He is saying that poking people’s eyes out and pouring acid on them is beyond Congress’s ability to limit a president. It is an unconscionable document.” [Washington Post, 4/6/2008] Former Office of Legal Counsel lawyer Martin Lederman, now a law professor at Georgetown University, says the Yoo memo helped create a legal environment that allowed prisoner abuses at Abu Ghraib. “What else could have been the source of belief in Iraq that the gloves were off and all laws could be disregarded with impunity?” Lederman asks. “It created a world in which everyone on the ground believed the laws did not apply. It was a law-free zone.” [Washington Post, 4/2/2008] Doug Cassell, the director of Notre Dame Law School’s Center for Civil and Human Rights, says: “This newly disclosed memo confirms that John Yoo inflicted his legal theory, that the commander in chief can do anything in wartime, not only on the CIA, but on the Pentagon as well. Yet when the Justice Department revoked the Yoo memos, it expressly declined to address that theory. It is high time for the Justice Department to repudiate Yoo’s pernicious doctrine, once and for all.” [Institute for Public Accuracy, 4/2/2008]
Representative Darrell Issa (R-CA) tries to back away from his comments from the day before, where he disparaged New York City first responders who are now suffering long-term disabilities and illnesses stemming from the 9/11 attacks (see April 2, 2008).
Firestorm of Criticism - Frank Fraone, a California fire chief who led a 67-man crew at Ground Zero after the collapse of the World Trade Center, says: “That is a pretty distorted view of things. Whether they’re a couple of planes or a couple of missiles, they still did the same damage.” Republican colleague Peter King (R-NY) notes: “New York was attacked by al-Qaeda. It doesn’t have to be attacked by Congress.… I’m really surprised by Darrell Issa. It showed such a cavalier dismissal of what happened to New York. It’s wrong and inexcusable.” 9/11 victim’s relative Lorie Van Auken calls Issa’s comments “cruel and heartless.” She adds: “It’s really discouraging. People stepped up and did the right thing. They sacrificed themselves and now a lot of people are getting really horrible illnesses.”
Partial Withdrawal - Issa withdraws some of his earlier statements, now saying, “I want to make clear that I strongly support help for victims who suffered physical injury as a result of an attack on America, including support from Congress and the federal government.” Yet he refuses to withdraw his comments that the 9/11 attacks were little more than unremarkable plane crashes unworthy of any federal financial response. He now says that he only “asked tough questions about the expenditures.” Health officials estimate that it could cost up to $1 billion to properly care for survivors of 9/11 suffering from physical and emotional disabilities. A new bill to fund that care is being prepared for House debate. [New York Daily News, 4/3/2008; New York Post, 4/3/2008] A New York Daily News op-ed accuses Issa of “demeaning 9/11” and calls his remarks “callous in the extreme.” [New York Daily News, 4/3/2008]
Attorneys for US soldiers charged with abuse at Iraq’s Abu Ghraib prison say they will use the recently released Justice Department torture memo (see March 14, 2003 and April 1, 2008) to show that the highest levels of government condoned the harsh interrogations and brutality used against prisoners in US detention facilities. The government argues that the brutal treatment meted out to detainees in Abu Ghraib was performed by low-ranking soldiers without military or government authorization. The Justice Department has already dropped 22 of 24 cases of detainee abuse against civilian employees and contractors referred by the CIA and Defense Department, and a US official says the torture memo’s legal arguments—interrogators are exempt from criminal liability—may have been part of the reason why those cases were dropped. A law enforcement official involved in the decisions says: “Could it conceivably have played a role in deciding whether to prosecute or not? Certainly, in theory. If there was a memo blessing behavior at a certain point in time, and someone relied on legal guidance, could they have formed the necessary intent” to break the law? Lawyer Charles Gittins, representing Army Private Charles Graner Jr. in Graner’s appeal of his convictions stemming from his abuse of prisoners at Abu Ghraib, says the memo seems to show that President Bush suspended maltreatment laws for the military during a time of war. Gittins will submit the document to Graner’s parole board when it meets in May. [Washington Post, 4/4/2008]
The Congressional Quarterly reports on a growing body of evidence that indicates US interrogators are using mind-altering drugs on prisoners suspected of terrorist ties. The evidence is not yet conclusive, but reporter Jeff Stein writes: “There can be little doubt now that the government has used drugs on terrorist suspects that are designed to weaken their resistance to interrogation. All that’s missing is the syringes and videotapes.”
Connection to Yoo Memo - The idea that the US might be using hallucinogenic or other drugs on detainees in Guantanamo and other US detention facilities was bolstered by the recent revelation of another “torture memo,” this one written in 2003 by then-Justice Department lawyer John Yoo (see March 14, 2003). Yoo wrote that US interrogators could use mind-altering drugs on terror suspects as long as the drugs did not produce “an extreme effect” calculated to “cause a profound disruption of the senses or personality.” Yoo first rationalized the use of drugs on prisoners in earlier “torture memos” (see January 9, 2002 and August 1, 2002).
Criticism - Stephen Miles, a bioethicist and author of a recent book detailing medical complicity in US torture of suspected terrorists, notes: “The new Yoo memo, along with other White House legal memoranda, shows clearly that the policy foundation for the use of interrogational drugs was being laid. The recent memo on mood-altering drugs does not extend previous work on this area. The use of these drugs was anticipated and discussed in the memos of January and February 2002 by [Defense Department, Justice Department], and White House counsel using the same language and rationale. The executive branch memos laid a comprehensive and reiterated policy foundation for the use of interrogational drugs.” Jeffrey Kaye, a clinical psychologist who works with torture victims through Survivors International, says plainly: “Yes, I believe [drugs] have been used. I came across some evidence that they were using mind-altering drugs, to regress the prisoners, to ascertain if they were using deception techniques, to break them down.”
Varieties of Drugs and Placebos Being Used? - It is well known that US military personnel often use sedatives on shackled and hooded prisoners on “rendition” flights from Middle Eastern countries to Guantanamo. There is no hard evidence to support claims that US interrogators are using hallucinogenic drugs such as LSD on detainees. However, Michael Caruso, who represents suspected al-Qaeda operative Jose Padilla (see May 8, 2002), filed a motion last year asserting that his client “was given drugs against his will, believed to be some form of lysergic acid diethylamide (LSD) or phencyclidine (PCP), to act as a sort of truth serum during his interrogations.” Caruso had no proof to back up his claim.
KUBARK - Stein notes that a 1963 CIA interrogation manual, code-named KUBARK, advocated the use of placebos as well as real drugs on prisoners. And Michael Gelles, a psychologist with the Naval Criminal Investigative Institute who has spoken out against the abuse of prisoners at Guantanamo, says that he never saw anything related to drugs. “I never saw that raised as an issue,” he says. Hallucinogens such as LSD do not make subjects tell the truth. According to KUBARK, “Their function is to cause capitulation, to aid in the shift from resistance to cooperation.”
Winging It - In July 2003, the CIA, the RAND Corporation, and the American Psychological Association hosted a workshop that explored the question of using drugs to “affect apparent truth-telling behavior” (see June 17-18, 2003). After 9/11, top Bush administration officials pushed military commanders for quick intelligence but, according to a recent study, the interrogators unsure how to use harsher methodologies (see December 2006) and began “mak[ing] it up on the fly.”
Guantanamo - Guantanamo staff judge advocate Lieutenant Colonel Diane Beaver says that some of the interrogators drew inspiration from the popular TV drama 24 (see Fall 2006). Beaver makes no mention of drugs being used, but Ewe Jacobs, the director of Survivors International, says she may not have seen or heard about their use. “The Guantanamo camps were isolated from one another,” he says. What happened in one part of the facility may not have been known in other areas. Miles adds, “I suspect that most of the use of interrogational drugs was by CIA and Special Ops interrogators, and thus still remains classified.”
Credibility Issues - As with victims of the CIA’s MK-ULTRA program from the 1960s and 70s, when unwitting subjects were dosed with hallucinogenic drugs and their reactions catalogued and observed, the detainees who may have been forcibly given such drugs will likely not be believed by many. Absent hard evidence, many will consider the detainees either “looney,” in Stein’s words, or liars. Few believe that Padilla was drugged. And, Stein concludes, “Even fewer will believe the other prisoners, a number of whom are deranged from prolonged interrogation—if they ever get out.” [Congressional Quarterly, 4/4/2008]
Entity Tags: Jose Padilla, Ewe Jacobs, Diane E. Beaver, Central Intelligence Agency, Bush administration (43), American Psychological Association, Jeff Stein, John C. Yoo, Richard (“Dick”) Cheney, US Department of the Army, Jeffrey Kaye, Stephen Miles, RAND Corporation, Michael Caruso, Michael Gelles, Survivors International
Timeline Tags: Torture of US Captives
The New York Times’s editorial board berates former Justice Department lawyer John Yoo for his defense of his 2003 advocacy of torture (see April 2, 2008), joining retired military officials (see April 2-4, 2008) and legal experts (see April 2-6, 2008). The board writes: “You can often tell if someone understands how wrong their actions are by the lengths to which they go to rationalize them. It took 81 pages of twisted legal reasoning to justify President Bush’s decision to ignore federal law and international treaties and authorize the abuse and torture of prisoners. Eighty-one spine-crawling pages in a memo that might have been unearthed from the dusty archives of some authoritarian regime and has no place in the annals of the United States. It is must reading for anyone who still doubts whether the abuse of prisoners were rogue acts rather than calculated policy.… The purpose of the March 14 memo was equally insidious: to make sure that the policy makers who authorized those acts, or the subordinates who carried out the orders, were not convicted of any crime.… Reading the full text, released this week, makes it startlingly clear how deeply the Bush administration corrupted the law and the role of lawyers to give cover to existing and plainly illegal policies.… When the abuses at Abu Ghraib became public, we were told these were the depraved actions of a few soldiers. The Yoo memo makes it chillingly apparent that senior officials authorized unspeakable acts and went to great lengths to shield themselves from prosecution.” [New York Times, 4/4/2008]
Author and former civil litigator Glenn Greenwald writes that he is angered, but not particularly shocked, at the US mainstream media’s failure to provide in-depth, extensive coverage of the recently released 2003 torture memo (see March 14, 2003 and April 1, 2008) and another memo asserting that the Bush administration had declared the Fourth Amendment null and void in reference to “domestic military operations” inside the US (see April 2, 2008). Greenwald also notes the lack of coverage of a recent puzzling comment by Attorney General Michael Mukasey about 9/11 (see March 27, 2008). Instead, Greenwald notes, stories about the Democratic presidential campaign (including criticism over Barack Obama’s relationship with his former pastor, Jeremiah Wright, and Obama’s recent bowling scores) have dominated press coverage. According to a recent NEXIS search, these various topics have been mentioned in the media in the last thirty days:
“Yoo and torture” (referring to John Yoo, the author of the two memos mentioned above)—102.
“Mukasey and 9/11”—73.
“Yoo and Fourth Amendment”—16.
“Obama and bowling”—1,043.
“Obama and Wright”—More than 3,000 (too many to be counted).
“Obama and patriotism”—1,607.
“Clinton and Lewinsky”—1,079. [Salon, 4/5/2008]
(For the record, on March 30, Obama went bowling in Pennsylvania during a campaign stop, in the company of Senator Bob Casey (D-PA). Newsmax is among the many media outlets that provided play-by-play coverage of Obama’s abysmal performance on the lanes—he scored a 37. The site reported that Obama lost “beautifully” and was “way out of his league.”) [NewsMax, 3/31/2008]
Media Attacks Obama's 'Elitism' - The Washington Post’s Howard Kurtz gives over much of his column to a discussion of Obama’s eating and bowling habits, making the argument, according to Greenwald, that Obama is “not a regular guy but an arrogant elitist.” Kurtz defends his argument by compiling a raft of “similar chatter about this from Karl Rove” and others. Bloomberg’s Margaret Carlson spent a week’s worth of columns calling Obama’s bowling his biggest mistake, a “real doozy.” MSNBC reported that Obama went bowling “with disastrous consequences.” Greenwald notes that the media “as always,” takes “their personality-based fixations from the right, who have been promoting the Obama is an arrogant, exotic, elitist freak narrative for some time.” In this vein, Time’s Joe Klein wrote of what he called Obama’s “patriotism problem,” saying that “this is a chronic disease among Democrats, who tend to talk more about what’s wrong with America than what’s right.” Greenwald notes, “He trotted it all out—the bowling, the lapel pin, Obama’s angry, America-hating wife, ‘his Islamic-sounding name.’” Greenwald calls the media fixation on Obama’s bowling and his apparent failure to be a “regular guy” another instance of their “self-referential narcissism—whatever they sputter about is what ‘the people’ care about, and therefore they must keep harping on it, because their chatter is proof of its importance. They don’t need Drudge to rule their world any longer because they are Matt Drudge now.” [Salon, 4/5/2008]
Entity Tags: Michael Mukasey, Matt Drudge, Richard (“Dick”) Cheney, MSNBC, Joe Klein, Barack Obama, Bob Casey, Jr, Bush administration (43), George W. Bush, Glenn Greenwald, Margaret Carlson, Jeremiah A. Wright Jr, Howard Kurtz, NewsMax
Timeline Tags: Torture of US Captives, Domestic Propaganda, 2008 Elections
The press reports that, beginning in the spring of 2002, top Bush administration officials approved specific details about how terrorism suspects would be interrogated by the CIA. The officials issued their approval as part of their duties as the National Security Council’s Principals Committee (see April 2002 and After). [ABC News, 4/9/2008] The American Civil Liberties Union’s Caroline Fredrickson says: “With each new revelation, it is beginning to look like the torture operation was managed and directed out of the White House. This is what we suspected all along.” [Associated Press, 4/10/2008]
Law professor Jonathan Turley, discussing recent revelations that top White House officials regularly met to discuss and approve torture methods for terror suspects in US custody (see April 2002 and After and April 11, 2008), says: “What you have are a bunch of people talking about what is something that’s a crime. For those of us who look at the criminal code and see torture for what it is, this is like a meeting of the Bada Bing club. These people are sitting around regularly talking about something defined as a crime. Then you have [former Attorney General] John Ashcroft standing up and saying, maybe we shouldn’t be talking about this at the White House. Well, obviously, that’s quite disturbing. It shows that this was a program, not just some incident, not just someone going too far. It was a torture program, implemented by the United States of America and approved as the very highest level. And it goes right to the president’s desk. And it’s notable that this group wanted to get lawyers to sign off on this, and they found those lawyers, people like Jay Bybee and John Yoo (see August 1, 2002). And those people were handsomely rewarded. In Bybee’s case, he became a federal judge after signing off on a rather grotesque memo that said that they could do everything short of causing organ failure or death.” Asked if what the White House officials did could lead to war crimes prosecutions, Turley answers: “It’s always been a war crimes trial ready to happen. But Congress is like a convention of Claude Rains actors. Everyone’s saying, we’re shocked, shocked; there’s torture being discussed in the White House. But no one is doing anything about it. So what we have is the need for someone to get off the theater and move to the actual in going and trying to investigate these crimes.” [MSNBC, 4/10/2008]
John Conyers. [Source: Public domain / US Congress]Democrats in Congress lambast the Bush administration over recent disclosures that senior White House officials specifically approved the use of extreme interrogation measures against suspected terrorists (see April 2002 and After). Senator Edward Kennedy (D-MA) calls the news “yet another astonishing disclosure about the Bush administration and its use of torture.… Who would have thought that in the United States of America in the 21st century, the top officials of the executive branch would routinely gather in the White House to approve torture? Long after President Bush has left office, our country will continue to pay the price for his administration’s renegade repudiation of the rule of law and fundamental human rights.” [Associated Press, 4/10/2008] John Conyers (D-MI), chairman of the House Judiciary Committee, calls the actions “a stain on our democracy.” Conyers says his committee is considering subpoenaing members of the Principals, and perhaps the author of the torture memo, John Yoo (see August 1, 2002), to testify about the discussions and approvals. [Progressive, 4/14/2008]
President Bush admits he knew about his National Security Council Principals Committee’s discussion and approval of harsh interrogation methods against certain terror suspects (see April 2002 and After). Earlier reports had noted that the Principals—a group of top White House officials led by then-National Security Adviser Condoleezza Rice—had deliberately kept Bush “out of the loop” in order for him to maintain “deniability.” Bush tells a reporter: “Well, we started to connect the dots in order to protect the American people. And yes, I’m aware our national security team met on this issue. And I approved.” Bush says that the news of those meetings to consider extreme interrogation methods was not “startling.” He admitted as far back as 2006 that such techniques were being used by the CIA (see September 6, 2006). But only now does the news of such direct involvement by Bush’s top officials become public knowledge. The Principals approved the waterboarding of several terror suspects, including Khalid Shaikh Mohammed (see Shortly After February 29 or March 1, 2003 and March 10, 2007); Bush defends the use of such extreme measures against Mohammed, saying: “We had legal opinions that enabled us to do it. And no, I didn’t have any problem at all trying to find out what Khalid Shaikh Mohammed knew.… I think it’s very important for the American people to understand who Khalid Shaikh Mohammed was. He was the person who ordered the suicide attack—I mean, the 9/11 attacks.” [ABC News, 4/11/2008] Bush’s admission is no surprise. The day before Bush makes his remarks, law professor Jonathan Turley said: “We really don’t have much of a question about the president’s role here. He’s never denied that he was fully informed of these measures. He, in fact, early on in his presidency—he seemed to brag that they were using harsh and tough methods. And I don’t think there’s any doubt that he was aware of this. The doubt is simply whether anybody cares enough to do anything about it.” [MSNBC, 4/10/2008]
The American Civil Liberties Union (ACLU) calls for an independent counsel to investigate President Bush and his current and former top officials over their involvement in approving torture against terror suspects held captive by US military and intelligence personnel (see April 2002 and After and April 11, 2008). The ACLU’s executive director, Anthony Romero, says: “We have always known that the CIA’s use of torture was approved from the very top levels of the US government, yet the latest revelations about knowledge from the president himself and authorization from his top advisers only confirms our worst fears. It is a very sad day when the president of the United States subverts the Constitution, the rule of law, and American values of justice.” The ACLU’s Caroline Frederickson adds: “No one in the executive branch of government can be trusted to fairly investigate or prosecute any crimes since the head of every relevant department, along with the president and vice president, either knew [of] or participated in the planning and approval of illegal acts. Congress cannot look the other way; it must demand an independent investigation and independent prosecutor.” Romero says the ACLU is offering legal assistance to any terrorism suspect being prosecuted by the US: “It is more important than ever that the US government, when seeking justice against those it suspects of harming us, adhere to our commitment to due process and the rule of law. That’s why the ACLU has taken the extraordinary step to offer our assistance to those being prosecuted under the unconstitutional military commissions process.” [American Civil Liberties Union, 4/12/2008]
Ruth Conniff. [Source: PBS]Columnist and veteran news commentator Ruth Conniff writes in the Progressive that she is disturbed both by the news that senior Bush officials signed off on the use of specific torture methods against al-Qaeda suspects in US custody (see April 2002 and After), and by the fact that the mainstream media, with notable exceptions, has virtually ignored the story. Between this story and the follow-up that President Bush himself knew of the discussions and approvals (see April 11, 2008), Conniff asks: “Why is this not bigger news? Remember when the nation was brought to a virtual standstill over Bill Clinton’s affair with a White House intern? We now have confirmation that the president of the United States gave the OK for his national security team to violate international law and plot the sordid details of torture. The Democrats in Congress should be raising the roof.” [Progressive, 4/14/2008]
The Justice Department launches an investigation into whether its former officials acted properly in advising President Bush that his wartime authority trumped domestic law, United Nations treaties, and international bans on torture. The investigation hinges on a March 2003 memo written by then-Office of Legal Counsel lawyer John Yoo that approved of Bush officials’ intent to use torture (see March 14, 2003). Senator Sheldon Whitehouse (D-RI) says the investigation will “help us discover what went wrong and how to put it right.” Whitehouse continues, “The abject failure of legal scholarship in the Office of Legal Counsel’s analysis of torture suggests that what mattered was not that the reasoning was sound, or that the research was comprehensive, but that it delivered what the Bush administration wanted.” Justice Department spokesman Brian Roehrkasse says that the investigation is part of an overall investigation that has been underway for years. [Associated Press, 4/17/2008]
The Washington Post reports that at least two dozen current and former detainees at Guantanamo Bay claim that they were given drugs against their will, or witnessed other inmates being drugged. These detainees believe that they were drugged in order to force confessions of terrorist ties from them (see 2002-2005). The CIA and the Defense Department deny using drugs in their interrogations, and suggest that such claims are either lies or mistaken interpretations of routine medical treatment.
Claims Bolstered by Justice Department Memo - But the claims are bolstered by the recent revelation of a 2003 Justice Department memo that explicitly condoned the use of drugs on detainees (see March 14, 2003). The memo, written by then-Justice Department lawyer John Yoo, reversed a decades-old US ban on the use of “mind-altering substances” on prisoners. Instead, Yoo wrote, drugs could indeed be used as long as they did not inflict permanent or “profound” psychological damage. US law “does not preclude any and all use of drugs,” Yoo wrote. The claims are also given weight by a 2004 statement from the commander of a detention facility in Afghanistan, who alluded to the CIA drugging detainees (see February 2004).
Drugging Detainees a Gross Violation of Anti-Torture Treaties - Legal experts and human rights groups are calling for a full accounting, including release of detailed prison medical records. They say that forcing drugs on detainees for non-medical reasons is a particularly serious violation of international treaties banning torture. Medical ethics expert Leonard Rubinstein, the president of Physicians for Human Rights, says: “The use of drugs as a form of restraint of prisoners is both unlawful and unethical. These allegations demand a full inquiry by Congress and the Department of Justice.” Scott Allen, the co-director of the Center for Prisoner Health and Human Rights, says that there are no accepted medical standards for the use of drugs to interrogate or subjugate prisoners. Any such use “would have to be considered an experimental use of medicine.… The involvement of physicians and other health professionals in such a program would be a profound betrayal of medical trust and needs to be investigated further.” The Geneva Conventions do not specifically refer to drugs, but they ban any use of force or coercion in interrogating prisoners of war. Law professor Barbara Olshansky, the author of a book on military tribunals, says: “If you’re talking about interrogations, you’re talking about very specific prohibitions that mean you cannot use any force, at all, to interrogate someone. The law is beyond clear.”
Team of Guards Present - When inmates were injected or forced to take pills, former detainees claim, the personnel administering the drugs were always accompanied by a squad of specially equipped guards known as the “Immediate Reaction Force” to handle any possible violent reactions from the drugged inmates. One former detainee who was later released without charge, Ruhel Ahmed, recalls that the guards wore padded gear and “forced us to have injections.” Ahmed recalls, “You are not allowed to refuse it and you don’t know what it is for.” He says he was given about a dozen injections, which “had the effect of making me feel very drowsy.”
No Solid Evidence of Claims - No evidence of such drugging is known to the public, outside of detainee claims of effects from the injections that range from unnatural drowsiness to full-blown hallucinations. Former US intelligence officials have acknowledged giving sedatives to terror suspects before transporting them from one facility to another (see May 1, 2002). Former Navy general counsel Alberto Mora, who attempted without success to resist the Bush administration’s decision to use harsh interrogation tactics against detainees (see December 17-18, 2002), says he knows of no instances where detainees were drugged as part of their questioning. However, he adds, the detainees “knew they were being injected with something, and it is clear from all accounts that some suffered severe psychological damage.” Emi MacLean, a lawyer for the Center for Constitutional Rights (CCR), an organization which represents dozens of current and former detainees, says that many former detainees have clear and disturbing memories of being forcibly drugged. “Many speak about forced medication at Guantanamo without knowledge about what medication they were being forced to take,” MacLean says. “For some released [military] detainees, the forced medication they experienced was the most traumatic part” of their captivity. Other detainees have claimed, in interviews and statements provided by their lawyers, to have had injections and/or pills forcibly administered to them. One former detainee, French national Mourad Benchellali, says that during his three years at Guantanamo he was given treatments that were described to him as antibiotics or vitamins, yet they left him in what he describes as a mental fog. “These medicines gave us headaches, nausea, drowsiness,” Benchellali recalls. “But the effects were different for different detainees. Some fainted or threw up. Some had reactions such as pimples.” Other injections, often administered by force, left him and other detainees nauseated and light-headed, he says. “We were always tired and always felt groggy.” Detainee Moazzam Begg says that he believes he was given legitimate medications, but in improper dosages by poorly trained prison workers. Once, while being treated with pills for a panic attack, he began to hallucinate. “I saw things moving when they were not,” he recalls. “I talked to myself. I cried, laughed and sat immobile in a corner for hours. All of this was noted by the MPs and recorded.”
Use of Hallucinogens on Recalcitrant Prisoners? - Benchellali says that a different type of injection was used on detainees who were particularly uncooperative. His recollections are echoed by statements from four other detainees. “The injection would make them crazy,” he recalls. “They would have a crisis or dementia—yelling, no longer sleeping, soiling themselves. Some of us suspected they were given LSD.” Center for Constitutional Rights attorney J. Wells Dixon says the government seems to have given drugs to detainees whose extended captivity made them distraught or rebellious. “Many of these men have become desperately suicidal,” Dixon says. “And the government’s response has been to administer more medication, often without the consent of the prisoners.” [Washington Post, 4/22/2008]
Entity Tags: John C. Yoo, Central Intelligence Agency, Center for Prisoner Health and Human Rights, Center for Constitutional Rights, Barbara Olshansky, Alberto Mora, Emi MacLean, J. Wells Dixon, Mourad Benchellali, Scott Allen, Physicians for Human Rights, Geneva Conventions, Moazzam Begg, US Department of Justice, Leonard Rubinstein, US Department of Defense, Rhuhel Ahmed
Timeline Tags: Torture of US Captives
In recent letters to Congress, the Justice Department has suggested that the Geneva Conventions’ ban on “outrages against personal dignity” does not automatically apply to terrorism suspects in the custody of US intelligence agencies (see August 8, 2007 and March 6, 2008). The letters are just now being made public, with Senator Ron Wyden (D-OR) making them available to the Washington Post. Last year, Wyden asked the Justice Department to provide an explanation for President Bush’s 2007 executive order authorizing the CIA to continue using so-called “harsh interrogation techniques” on detainees (see July 20, 2007) even as Bush claimed US interrogators would always observe Geneva restrictions. The department responded with several letters that reasserted the Bush administration’s contentions that it is not bound by domestic law or international treaties in deciding how the Geneva Conventions apply to the interrogation of terror suspects. [Washington Post, 4/27/2008; Voice of America, 4/27/2008]
'Humane Treatment' Subject to Interpretation, Circumstances - The Justice Department acknowledges that the US is bound by Common Article 3 of the Conventions, which requires that a signatory nation treat its detainees humanely; however, the letters say that the definition of “humane treatment” can be interpreted in a variety of ways, and can depend on the detainee’s identity and the importance of the information he possesses. In a letter written to a Democrat on the Senate Intelligence Committee, the principal deputy assistant attorney general, Brian Benczkowski, wrote, “Some prohibitions… such as the prohibition on ‘outrages against personal dignity,’ do invite the consideration of the circumstances surrounding the action.” The government can weigh “the identity and information possessed by a detainee” in deciding whether to use harsh and potentially inhumane techniques, according to Benczkowski. A suspect with information about a future attack, for example, could and possibly would be subjected to extreme treatment, he says, and notes that a violation of the Geneva Conventions would only occur if the interrogator’s conduct “shocks the conscience” because it is out of proportion to “the government interest involved.” He continued, “The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act.” Furthermore, any action defined as an “outrage upon personal dignity” must be deliberate and involve an “intent to humiliate and degrade.”
Government Arguments 'Appalling,' Says Senator - A spokeswoman for Wyden, Jennifer Hoelzer, says that the administration’s contention that the Geneva Conventions can be selectively applied is “stunning.” Hoelzer says: “The Geneva Convention in most cases is the only shield that Americans have when they are captured overseas. And for the president to say that it is acceptable to interpret Geneva on a sliding scale means that he thinks that it is acceptable for other countries to do the same. Senator Wyden—and I believe any other reasonable individual—finds that argument appalling.” Law professor Scott Silliman, who teaches national security law at Duke University, agrees with Wyden’s assessments. He notes, “What they are saying is that if my intent is to defend the United States rather than to humiliate you, than I have not committed an offense.” An anonymous Justice Department official disagrees. “I certainly don’t want to suggest that if there’s a good purpose you can head off and humiliate and degrade someone. The fact that you are doing something for a legitimate security purpose would be relevant, but there are things that a reasonable observer would deem to be outrageous.” However, he adds, “there are certainly things that can be insulting that would not raise to the level of an outrage on personal dignity.” Wyden states that if the US is subjective in deciding what is and isn’t compliant under Geneva, then other countries will do the same to US prisoners in their custody. “The cumulative effect in my interpretation is to put American troops at risk,” he says. [Washington Post, 4/27/2008; New York Times, 4/27/2008] He adds that the letters help make the case for a law that explicitly puts the CIA interrogations under the same restrictions as the military, or another set of clear standards. [Wall Street Journal, 4/27/2008]
'Full Compliance' - The CIA refuses to comment on Benczkowski’s memo, but spokesman Mark Mansfield says the CIA’s detainee program “has been and continues to be in full compliance with the laws of our country.” He adds, “The program has disrupted terrorist plots and has saved lives.” [Washington Post, 4/27/2008; New York Times, 4/27/2008]
Entity Tags: Geneva Conventions, Mark Mansfield, Brian A. Benczkowski, Bush administration (43), Central Intelligence Agency, George W. Bush, US Department of Justice, Ron Wyden, Senate Intelligence Committee, Jennifer Hoelzer
Timeline Tags: Torture of US Captives, Civil Liberties
The American Civil Liberties Union (ACLU) says that, according to newly released documents, the US military continued to use abusive and illegal interrogation methods on detainees well after an October 2003 directive meant to end such practices was issued. A number of Defense Department documents shows how military medical workers systematically failed to report abuses, and how psychologists took part in such interrogations—violations of both the law and medical oaths, the ACLU says.
Documents Part of Church Report - The documents, part of what is known as the Church report (see May 11, 2004), have been newly unredacted in connection with a Freedom of Information Act (FOIA) request filed in 2004. The government has yet to release any details of interrogation methods used after the 2003 directive was issued. ACLU attorney Amrit Singh says the documents also show that “the use of some of the techniques… continued even until July 2004, despite the fact that many were retracted by the October 2003 memorandum, and some were subsequently prohibited by the May 2004 memorandum.” The report says, “The relatively widespread use of these techniques supports our finding that the policy documents were not always received or thoroughly understood.” The Church report, an internal review of prisoner interrogation policies conducted after the Abu Ghraib scandal, found that no military or civilian leaders either directed or encouraged the prisoner abuses committed in Iraq, Afghanistan, and Guantanamo Bay. [Associated Press, 4/30/2008]
Medics Failed to Report Abuse - According to the documents, Army medics failed to report abuses even after witnessing them. The Church report found that “enlisted medics witnessed obvious episodes of detainee abuse apparently without reporting them to superiors.” One medic watched as guards deliberately struck a detainee in his wounded leg. Two separate incidents involved detainees handcuffed in painful positions for extended periods of time; one of the detainees suffered a dislocated shoulder and the other experienced what the ACLU terms “excruciating pain when eventually forced to stand.” Another medic witnessed pictures of naked detainees in a pyramid but did not report the episode to superiors. “The documents reveal that psychologists and medical personnel played a key role in sustaining prisoner abuse—a clear violation of their ethical and legal obligations,” says Singh. “The documents only underscore the need for an independent investigation into responsibility for the systemic abuse of detainees held in US custody abroad.” [American Civil Liberties Union, 4/30/2008]
Partial Disclosure - Some of the report was disclosed in 2005, and parts of it have been declassified. Other portions remained classified in the interest of national security, according to government officials. Singh says these documents prove again that such classifications further a pattern “of claiming national security as pretext for withholding information to cover up embarrassing information.” The ACLU has long been critical of the Church report, calling it incomplete and sanitized. Lawsuits to force further disclosure are still pending. [Associated Press, 4/30/2008; American Civil Liberties Union, 4/30/2008]
Constitutional lawyer Bruce Fein, formerly an associate deputy attorney general under President Ronald Reagan, says that the legality of the Main Core database, which contains a list of enemies primarily for use in national emergencies (see 1980s or Before), is murky: “In the event of a national emergency, the executive branch simply assumes these powers”—the powers to collect domestic intelligence and draw up detention lists, for example—“if Congress doesn’t explicitly prohibit it. It’s really up to Congress to put these things to rest, and Congress has not done so.” Fein adds that it is virtually impossible to contest the legality of these kinds of data collection and spy programs in court “when there are no criminal prosecutions and [there is] no notice to persons on the president’s ‘enemies list.’ That means if Congress remains invertebrate, the law will be whatever the president says it is—even in secret. He will be the judge on his own powers and invariably rule in his own favor.” [Radar, 5/2008]
Former CIA officer Philip Giraldi is interviewed by journalist Christopher Ketcham about the Main Core database, which apparently contains a list of potential enemies of the US state. Giraldi does not know any definite information about the database, but he speculates that it must be contained within the Department of Homeland Security (DHS): “If a master list is being compiled, it would have to be in a place where there are no legal issues”—the CIA and FBI would be restricted by oversight and accountability laws—“so I suspect it is at DHS, which as far as I know operates with no such restraints.” Giraldi notes that the DHS already maintains a central list of suspected terrorists and says it has been freely adding people who pose no reasonable threat to domestic security. “It’s clear that DHS has the mandate for controlling and owning master lists. The process is not transparent, and the criteria for getting on the list are not clear.” Giraldi continues, “I am certain that the content of such a master list [as Main Core] would not be carefully vetted, and there would be many names on it for many reasons—quite likely including the two of us.” [Radar, 5/2008]
Former national security official Norman Bailey admits publicly and on the record that the PROMIS database and search application has been given to the NSA. As Salon magazine points out: “His admission is the first public acknowledgement by a former US intelligence official that the NSA used the PROMIS software.” Bailey also says that the application was given to the Treasury Department for a financial tracking project in the early 1980s that also involved the National Security Council (see 1982-1984). Bailey worked for US governments from the Ronald Reagan era until the George W. Bush administration and, in addition to the 1980s tracking program, he headed a special unit within the Office of the Director of National Intelligence focused on financial intelligence on Cuba and Venezuela in 2006 and 2007. [Salon, 7/23/2008]
What Radar magazine describes as a “knowledgeable source” claims that 8 million Americans are now listed in the Main Core database as potentially suspect. Main Core is a database of enemies of the state established several decades before as a part of the Continuity of Government (COG) program (see 1980s or Before). In the event of a national emergency, the suspects could be subject to, for example, heightened surveillance, tracking, direct questioning, or even detention. [Radar, 5/2008]
Mohammed Jawad, who has been detained at Guantanamo since age 16 (see December 17, 2002 and January 13, 2009), is beaten so badly by guards that weeks later he still has what Salon’s Glenn Greenwald will describe as “extreme bruises on his arms, knees, shoulders, forehead, and ribs.” [Salon, 1/21/2009]
Mohammed Jawad, a young Guantanamo detainee held in US captivity for almost six years (see December 17, 2002) and charged with attempted murder (see October 7, 2007), agrees to participate in his trial (see March 12, 2008), but authorizes his defense counsel, Major David Frakt, only to represent him for the purpose of challenging the legitimacy of the military commission system. Frakt tells the court that Jawad has been punished for his behavior at his arraignment (see March 12, 2008) by the loss of certain “comfort items,” including his only blanket. Frakt asks that the blanket and other items be returned to Jawad, asks for a mental health evaluation (see December 2003), and for changes in Jawad’s conditions of confinement. [Human Rights First, 9/2008] At some point in May, presumably after the hearing, Jawad will be severely beaten by his guards (see May 2008).
The US military dismisses charges against Mohammed al-Khatani. In February 2008, al-Khatani was part of a small group of detainees held at the Guantanamo prison charged before a military tribunal with involvement in the 9/11 attacks (see February 11, 2008). Al-Khatani is said to be the would-be “20th hijacker” who was refused entry to the US in August 2001 (see August 4, 2001). However, he was later captured and subjected to months of torture at Guantanamo (see August 8, 2002-January 15, 2003). The Pentagon official who announces the dismissal of charges against him, Convening Authority Susan Crawford, gives no explanation. The charges are dismissed “without prejudice,” which means they could be reinstated at any time. However, many believe that the charges against him are dismissed because of the torture he underwent, as well as the fact that he appears to have only been a unsuccessful low-level figure in the plot. [New York Times, 5/14/2008] In 2006, MSNBC predicted that he would never face trial due to the way he was tortured (see October 26, 2006). However, he still remains imprisoned at Guantanamo. In January 2009, Crawford will confirm that she dismissed the case against al-Khatani because he was indeed tortured (see January 14, 2009). She will say that the treatment suffered by al-Khatani “did shock me,” and will continue: “I was upset by it. I was embarrassed by it. If we tolerate this and allow it, then how can we object when our servicemen and women, or others in foreign service, are captured and subjected to the same techniques? How can we complain? Where is our moral authority to complain? Well, we may have lost it.” Crawford will lay much of the blame for al-Khatani being tortured at the feet of then-Defense Secretary Donald Rumsfeld. “A lot of this happened on his watch,” she will say. [Washington Post, 1/14/2009]
UN rights envoy Philip Alston says that foreign intelligence agents leading Afghan units are operating with impunity in Afghanistan and are responsible for killing innocent civilians in numerous secret raids. Alston, a special investigator for the UN Human Rights Council, slams the operations as “absolutely unacceptable,” and says that foreign officials have dodged responsibility when confronted on the allegations. “It is absolutely unacceptable for heavily armed internationals accompanied by heavily armed Afghan forces to be wandering around conducting dangerous raids that too often result in killings without anyone taking responsibility for them,” says Alston. While not specifying the intelligence agencies involved, Alston implies American involvement, mentioning one raid in January conducted by Afghans and personnel from US special forces based in Kandahar that killed two Afghan brothers. Alston’s sources of information include senior government ministers, the chief justice, the Afghan intelligence chief, international military commanders, members of civic groups, and tribal elders. “Based on my discussions, there is no reason to doubt that at least some of these units are led by personnel belonging to international intelligence services,” he says. [Associated Press, 5/15/2008]
YouTube logo. [Source: YouTube.com]Senator Joseph Lieberman (D-CT), the chairman of the Senate Homeland Security and Governmental Affairs Committee, asks Google, the parent company of the online video-sharing site YouTube, to “immediately remove content produced by Islamist terrorist organizations” from YouTube and prevent similar content from reappearing. The company refuses Lieberman’s request. Lieberman writes a letter to Eric Schmidt, the CEO and chairman of Google, saying in part that YouTube “unwittingly, permits Islamist terrorist groups to maintain an active, pervasive and amplified voice despite military setbacks or successful operations by the law enforcement and intelligence communities.” Lieberman also asks that Google identify changes it plans to make in YouTube’s community guidelines and delineate exactly what it will do to enforce those guidelines. Lieberman says removing such content ought to be “a straightforward task since so many of the Islamist terrorist organizations brand their material with logos or icons identifying their provenance.” However, YouTube responds by saying that taking such actions is not as simple as Lieberman believes, and refuses to remove any videos from anyone without consideration as to whether the videos are legal, nonviolent, or non-hate speech videos. “While we respect and understand his views, YouTube encourages free speech and defends everyone’s right to express unpopular points of view,” the company says. YouTube has removed a few videos that Lieberman identified last week after determining that the individual videos violated the company’s community guidelines. However, “most of the videos, which did not contain violent or hate speech content, were not removed because they do not violate our Community Guidelines,” the company says. Lieberman’s committee recently released a report that indicated some Islamist terrorist groups used Internet chat rooms, message boards, and Web sites to help recruit and indoctrinate members, and to communicate with one another. Some critics have said that the committee’s report unfairly singles out Muslims as possible extremists. Additionally, civil libertarians and privacy activists speak out against what they see as Lieberman’s attempt to restrain freedom of speech. John Morris of the Center for Democracy and Technology says that Lieberman’s request is a practical impossibility; worse, to have sites such as YouTube pre-screen content would radically change how the Internet is used, he says. “The government can’t get involved in suppressing videos if the content is not illegal.” [Federal Computer Weekly, 5/19/2008; US Senate, 5/19/2008; YouTube, 5/19/2008]
The American Civil Liberties Union (ACLU) responds to a just-released Justice Department report about prisoner abuse at Guantanamo and in US-run prisons in Iraq and Afghanistan (see May 20, 2008). “Today’s OIG [Office of the Inspector General] report reveals that top government officials in the Defense Department, CIA, and even as high as the White House turned a blind eye to torture and abuse and failed to act aggressively to end it,” says ACLU executive director Anthony Romero. “Moreover, the country’s top law enforcement agency—the FBI—did not take measures to enforce the law but only belatedly reported on the law’s violations. It’s troubling that the government seems to have been more concerned with obscuring the facts than with enforcing the law and stopping the torture and abuse of detainees. Had the government taken action in 2002, perhaps the disgrace of Abu Ghraib and other abuses could have been avoided.” Senior ACLU official Caroline Fredrickson says: “Attorney General Michael Mukasey recently testified to Congress that he cannot prosecute anyone for anything approved by Justice Department opinions that authorized detainee abuse (see February 7, 2008). But no one gets immunity for acts they should have known were illegal. The filtering up of information from FBI agents to high government officials makes claims of immunity even more incredulous.” And ACLU senior legislative counsel Christopher Anders says: “This new report should become exhibit A at the next Congressional hearing on the Bush administration’s use of torture. The House Judiciary Committee is in the middle of the first thorough Congressional review of the development and implementation of the torture policies at the top levels of government. The questions are who did what and what crimes were committed. This Justice Department report helps answer both questions.” [American Civil Liberties Union, 5/20/2008]
Entity Tags: Christopher Anders, Anthony D. Romero, American Civil Liberties Union, Bush administration (43), Central Intelligence Agency, Federal Bureau of Investigation, House Judiciary Committee, US Department of Justice, Michael Mukasey, US Department of Defense, Caroline Fredrickson
Timeline Tags: Torture of US Captives
The Department of Justice (DOJ) releases a long-anticipated report on the alleged torture and abuse of terrorist suspects in US custody. The report was spurred by a Congressional request after Freedom of Information Act (FOIA) requests showed that FBI agents at Guantanamo had raised concerns about CIA- and military-conducted interrogations. The report identifies then-National Security Adviser Condoleezza Rice as a recipient of complaints of torture. [American Civil Liberties Union, 5/20/2008] The report, issued by DOJ Inspector General Glenn Fine, shows that CIA officials regularly ignored DOJ warnings that the interrogation tactics they were using amounted to “borderline torture.” The report also concludes that the Defense Department is ultimately responsible for how prisoners in military custody are being treated. As a result, the report finds no reason to bring criminal complaints against CIA officials or interrogators.
'Seven Months of Foot-Dragging' - The report documents what CBS News calls “seven months of foot-dragging” by the Pentagon, which attempted to water down the report. Failing that, the report cites numerous instances where Pentagon officials attempted to redact information in the report from public view. The report is lightly redacted.
FBI Praised for Legal, Non-Coercive Interrogation Techniques - The report generally praises the FBI’s own interrogation efforts, methods, and results. It confirms that when CIA officials became impatient with what they were calling “throwaway results” by FBI interrogators, particularly in the case of Abu Zubaida (see April - June 2002), the CIA took over interrogations of prisoners such as Zubaida and began using harsh, torturous techniques. The FBI pulled its agents from the ongoing interrogations, refusing to participate in what it considered to be illegal actions (see May 13, 2004). (In 2009, a former FBI interrogator will confirm that the FBI gathered far more useful information from its non-coercive techniques than the CIA did with its “borderline torture” methods—see Late March through Early June, 2002 and April 22, 2009.) [CBS News, 5/20/2008; Newsweek, 5/20/2008; American Civil Liberties Union, 5/20/2008]
Witnesses to Torture - However, the report makes clear that FBI agents witnessed harsh interrogations that may have constituted torture at three locations—Baghdad’s Abu Ghraib prison, Afghanistan’s Bagram Air Force Base facility, and Guantanamo Bay. FBI agents are explicitly banned from using brutality, physical violence, intimidation, or other means of causing duress when interviewing suspects. Instead, the FBI generally tries to build a rapport with suspects to get information. “Beyond any doubt, what they are doing (and I don’t know the extent of it) would be unlawful were these enemy prisoners of war,” one FBI employee, senior FBI lawyer Spike Bowman, reported. Bowman worried that the FBI would be “tarred by the same brush,” when asked whether the FBI should refer the matter to the Defense Department Inspector General, and added, “Were I still on active duty, there is no question in my mind that it would be a duty to do so.” The report cites two FBI agents at Guantanamo who “had concerns not only about the proposed techniques but also about the glee with which the would-be [military] participants discussed their respective roles in carrying out these techniques, and the utter lack of sophistication and circus-like atmosphere within this interrogation strategy session.” [CBS News, 5/20/2008; American Civil Liberties Union, 5/20/2008]
Blocking Access to Zubaida - CIA general counsel John Rizzo refused to let DOJ investigators interview Zubaida for the report. The CIA has admitted that Zubaida was waterboarded (see Mid-May, 2002, March 2002 and April - June 2002). The report says that the CIA’s denial of access to Zubaida was “unwarranted,” and “hampered” the investigation, and contrasts the CIA’s actions with those of the Defense Department, which allowed DOJ investigators to interview Guantanamo prisoners. Rizzo told the DOJ that Zubaida “could make false allegations against CIA employees.” [Newsweek, 5/20/2008; American Civil Liberties Union, 5/20/2008]
Split over Al-Khatani - The rift between the CIA and FBI came to a head over the treatment of Mohamed al-Khatani, one of several suspected terrorists accused of being the fabled “20th hijacker” for the 9/11 attacks (see December 2001). According to the report, al-Khatani was abused in a number of ways by military interrogators at Guantanamo; the report cites the use of attack dogs, shackling and stress positions, sexual humiliation, mocking al-Khatani’s religion, and extended sleep deprivation among other tactics. FBI officials complained to the White House after learning that military interrogators forced him to “perform dog tricks,” “be nude in front of a female,” and wear “women’s underwear on his head.” Al-Khatani did eventually “confess” (see July 2002), but FBI officials expressed serious doubts as to the validity of his confession, both in its accuracy and in its admissability in a criminal court. The then-chief of the Guantanamo facility, Major General Geoffrey Miller, ordered a “relentless” and “sustained attack” on al-Khatani. “The plan was to keep him up until he broke,” an FBI agent told superiors, and some of those superiors worried that those techniques would render his confession inadmissible. Al-Khatani was hospitalized for hypothermia during those interrogations. His lawyer, Gitanjali Gutierrez, says her client recently attempted suicide because of his treatment. “The tactics that were used against and the impact, the pain and suffering it caused him and the damage that it caused him does rise to a level of torture,” she says. The government recently dropped all charges against al-Khatani (see October 26, 2006 and January 14, 2009), because if he had been brought to trial, all of the evidence of his treatment would be made public. [CBS News, 5/20/2008; Newsweek, 5/20/2008; American Civil Liberties Union, 5/20/2008]
Entity Tags: US Department of Justice, Glenn Fine, John Rizzo, Marion (“Spike”) Bowman, Gitanjali Gutierrez, Geoffrey D. Miller, Federal Bureau of Investigation, Condoleezza Rice, Abu Zubaida, Mohamed al-Khatani, Central Intelligence Agency, US Department of Defense
Timeline Tags: Torture of US Captives
The British human rights organization Reprieve claims that the US has detained around 26,000 terror suspects in its network of secret prisons. It also says that several prisoners were held on a network of secret prison ships, both for detention and for interrogation sessions that were held “off the books.” The prisoners allegedly included American-born John Walker Lindh (see December 2001-January 2002) and Australian David Hicks (see July 3, 2003). Reprieve says that the US has used ships stationed off the Somali coast and off the Indian Ocean island of Diego Garcia to detain suspects (see June 2, 2008), including the USS Ashland, the USS Bataan, and the USS Peleliu; up to 17 naval vessels have been used, the group says. The Navy admits that its ships have sometimes housed prisoners for short periods of time, but denies that its vessels are used as long-term floating prisons. “We do not operate detention facilities on board Navy ships,” says Navy Commander Jeffrey Gordon, a Pentagon spokesman. Reprieve bases its claims on evidence from the US military, the Council of Europe, and testimony from a former detainee at the US prison camp at Guantanamo Bay, Cuba. [Associated Press, 6/2/2008]
Aerial photo of Diego Garcia island. [Source: Department of Defense]British Conservative MP Andrew Tyrie, who chairs the all-party Parliamentary group on extraordinary rendition, files a formal complaint with the government’s Information Commissioner over the government’s use of the island of Diego Garcia for the rendition of US prisoners to foreign countries for interrogation and possibly torture (see After February 7, 2002 and June 2, 2008). Diego Garcia is a large atoll in the Indian Ocean under British jurisdiction, and hosts a large British-American military base (see July 27, 1971-May 26, 1973). Tyrie says he decided to make the complaint to learn if Britain was in breach of its obligations under the UN Convention Against Torture (see October 21, 1994). The British government has recently admitted that at least two US rendition planes used Diego Garcia as a refueling base in 2002 (see December 2001-January 2002). “The foreign secretary has been forced to admit that two rendition planes refueled at Diego Garcia, despite explicit US assurances to the [British] government that no such flights had taken place,” Tyrie says. “Clearly people will conclude that these assurances are worthless.… But in response to requests by me the government has twice refused to release the terms of these assurances. Their disclosure will allow for a legal assessment of whether or not [Britain] has breached its obligations under the convention against torture, both with respect to Diego Garcia and to rendition generally.” Tyrie’s complaint requests that Foreign Secretary David Milbrand name the prisoners rendered through Diego Garcia by the US. Milbrand has already apologized to Parliament about falsely claiming that no US rendition flights have ever used Diego Garcia as a refueling base; other British government officials have issued similar denials (see January 8, 2003). But Manfred Novak, the UN special investigator on torture, says that he has credible evidence that detainees were held on Diego Garcia between 2002 and 2003. Human rights attorney Clive Stafford Smith says he believes two of the detainees were Mohammed Saad Iqbal Madni (see Early January-January 9, 2002 and March 2004) and Ibn al-Shaykh al-Libi (see December 19, 2001 and January 2002 and After), though he cannot be sure since neither the US nor British governments are releasing the names of potential detainees kept at Diego Garcia. In 2007, a Council of Europe investigation into extraordinary rendition will learn that US agencies use Diego Garcia in the “processing” of “high-value detainees.” [Guardian, 6/2/2008; Guardian, 6/2/2008]
Conservative radio host Michael Savage says that homeless Americans should be put in “work camps.” As documented by progressive media watchdog organization Media Matters, Savage, answering a caller’s question about how he would address the “problem with the homelessness in this country,” says: “Why not put them in work camps? Most of them are able-bodied.” When the caller asks, “How much do you plan on paying them in these work camps, sir?” Savage responds, “Well, since they’re already receiving public assistance, I’d pay them nothing.” He continues: “Why do you have to pay a man who’s right now living off the fat of the land? And he’s sucking the fat of the land for, you know, a fairly small check—it is true—but he is a leech. He is not a productive member of society. Where is the money supposed to come from? No, I’ve studied the homeless problem for many years, Ed, because I live in one of the most infested cities in the United States—San Francisco—and I’ve observed the bums for many years. And the good—the largest portion of them are able-bodied. They’re drug addicts or alcoholics. There’s no reason they could not be put into work camps and do much of the labor that our illegal aliens are doing. Now, who do you think did this labor in previous generations? It was ne’er-do-wells, who today are basically able to live on the fat of the land and then drink or use drugs because they’re getting a check for nothing. In the old days, they’d pick the crops and they would spend their money on alcohol.” [Media Matters, 6/9/2008]
An attack by a CIA-controlled drone kills an unidentified person in the town of Makeen in South Warizistan, Pakistan. Makeen is home to Pakistan Taliban leader Baitullah Mahsud. [New Yorker, 10/26/2009]
The lawyer for Mohammed Jawad, a young Guantanamo detainee held in US captivity for almost six years (see December 17, 2002) and charged with attempted murder (see October 7, 2007), attempts to have the charges against his client dismissed. Major David Frakt tells the court that Jawad has been subjected to a harsh regime of sleep deprivation nicknamed the “frequent flyer program.” Records show that Jawad was moved from one cell to another 112 times over the period of two weeks, with guards shackling, moving, and unshackling him for an average of once every two hours and 50 minutes. Frakt tells the court that Jawad had attempted suicide months before. The military commission judge refuses to dismiss the charges. [Human Rights First, 9/2008]
The Supreme Court rules 5-4 that foreign terror suspects held without charge at Guantanamo Bay have the Constitutional right to challenge their detention in US civilian courts. The Court splits along ideological lines, with the more liberal and moderate members supporting the finding, and the more conservative members opposing it. Justice Anthony Kennedy, considered a centrist, writes the ruling. He writes, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.” The ruling specifically strikes down the portion of the Military Commissions Act (see October 17, 2006) that denies detainees their habeas corpus rights to file petitions. [Associated Press, 6/12/2008; Associated Press, 6/12/2008] The case is Boumediene v. Bush, and was filed in the Supreme Court in March 2007 on behalf of Lakhdar Boumediene, a Bosnian citizen held in the Guantanamo camp since 2002 (see January 18, 2002). It was combined with a similar case, Al Odah v United States (see October 20, 2004). [Oyez (.org), 6/2007; Jurist, 6/29/2007]
'Stinging Rebuke' for Bush Administration - The ruling is considered a serious setback for the Bush administration (a “stinging rebuke,” in the words of the Associated Press), which insists that terror suspects detained at Guantanamo and elsewhere have no rights in the US judicial system. It is unclear whether the ruling will lead to prompt hearings for detainees [Associated Press, 6/12/2008; Associated Press, 6/12/2008] ; law professor James Cohen, who represents two detainees, says, “Nothing is going to happen between June 12 and January 20,” when the next president takes office. Justice Department spokesman Peter Carr says the decision will not affact war crimes trials already in the works: “Military commission trials will therefore continue to go forward.”
Scalia: Ruling Will 'Cause More Americans to Be Killed' - President Bush says he disagrees with the ruling, and says he may seek new legislation to keep detainees under lock and key. Justice Antonin Scalia, the leader of the Court’s ideological right wing, agrees; in a “blistering” dissent, he writes that the decision “will make the war harder on us. It will almost certainly cause more Americans to be killed.” In his own dissent, Chief Justice John Roberts argues that the ruling strikes down “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.” Joining Scalia and Roberts in the minority are Justices Samuel Alito and Clarence Thomas. Voting in the majority are Kennedy and Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter, and John Paul Stevens.
Military Tribunals 'Doomed,' Says Navy Lawyer - Former Navy lawyer Charles Swift, who argued a similar case before the Supreme Court in Hamdan v Rumsfeld (see June 30, 2006), says he believes the ruling removes any legal basis for keeping Guantanamo open, and says that military tribunals are “doomed.” The entire rationale for Guantanamo and the tribunals, Swift says, is the idea that “constitutional protections wouldn’t apply.” But now, “The court said the Constitution applies. They’re in big trouble.” Democrats and many human rights organizations hail the ruling as affirming the US’s commitment to the rule of law; some Republican lawmakers say the ruling puts foreign terrorists’ rights over the safety of the American people. Vincent Warren, the head of the Center for Constitutional Rights, says: “The Supreme Court has finally brought an end to one of our nation’s most egregious injustices. By granting the writ of habeas corpus, the Supreme Court recognizes a rule of law established hundreds of years ago and essential to American jurisprudence since our nation’s founding.” [Associated Press, 6/12/2008]
Entity Tags: Stephen Breyer, Vincent Warren, US Supreme Court, Samuel Alito, Military Commissions Act, Peter Carr, Bush administration (43), Antonin Scalia, Anthony Kennedy, Charles Swift, Clarence Thomas, David Souter, George W. Bush, Lakhdar Boumediene, Ruth Bader Ginsburg, John Paul Stevens, James Cohen, John G. Roberts, Jr, US Department of Justice
Timeline Tags: Civil Liberties
A poll shows that 53 percent of Americans believe torture should be unequivocally abolished, and 44 percent of Americans favor torture when dealing with terrorists. Thirteen percent say torture should be allowed in general. The poll was taken by WorldPublicOpinion.org, which is associated with the University of Maryland’s Program on International Policy Attitudes. US support for torturing terrorists has grown since 2006, when 36 percent favored the idea. Citizens in other countries were also polled about torture, and they generally show stronger opinions against torture. For instance, 82 percent in Britain, France, and Spain believe torture should be unequivocally abolished. [Deutsche Presse Agentur, 6/24/2008]
David Addington and John Yoo before the House Judiciary Committee. [Source: Washington Post]David Addington, the chief counsel for Vice President Cheney and one of the architects of the Bush administration’s torture policies (see Late September 2001), testifies before the House Judiciary Committee. He is joined by Justice Department lawyer John Yoo, who authored or contributed to many of the legal opinions that the administration used to justify the torture and “extralegal” treatment of terror suspects (see November 6-10, 2001). Addington, unwillingly responding to a subpoena, is, in Washington Post reporter Dana Milbank’s description, “nasty, brutish, and short” with his questioners. [Washington Post, 6/27/2008] He tells lawmakers that the world has not changed much since the 9/11 attacks: “Things are not so different today as people think. No American should think we are free, the war is over, al-Qaeda is not coming.” [Los Angeles Times, 6/27/2008]
Refusing to Define 'Unitary Executive' - Committee chairman John Conyers (D-MI) peppers Addington with questions about the Bush administration and its penchant for the “unitary executive” paradigm, which in essence sees the executive branch as separate and above the other two, “lesser” branches of government. Addington is one of the main proponents of this theory (see (After 10:00 a.m.) September 11, 2001). But instead of answering Conyers’s questions, he slaps away the questions with what Milbank calls “disdain.”
Addington: “I frankly don’t know what you mean by unitary theory.”
Conyers: “Have you ever heard of that theory before?”
Addington: “I see it in the newspapers all the time.”
Conyers: “Do you support it?”
Addington: “I don’t know what it is.”
Conyers (angrily): “You’re telling me you don’t know what the unitary theory means?”
Addington: “I don’t know what you mean by it.”
Conyers: “Do you know what you mean by it?”
Addington: “I know exactly what I mean by it.”
Open Contempt - He flatly refuses to answer most questions, and treats the representatives who ask him those questions with open contempt and, in Milbank’s words, “unbridled hostility.” One representative asks if the president is ever justified in breaking the law, and Addington retorts, “I’m not going to answer a legal opinion on every imaginable set of facts any human being could think of.” When asked if he consulted Congress when interpreting torture laws, Addington snaps: “That’s irrelevant.… There is no reason their opinion on that would be relevant.” Asked if it would be legal to torture a detainee’s child (see After September 11, 2002), Addington answers: “I’m not here to render legal advice to your committee. You do have attorneys of your own.” He offers to give one questioner advice on asking better questions. When asked about an interrogation session he had witnessed at Guantanamo, he replies: “You could look and see mouths moving. I infer that there was communication going on.” At times he completely ignores questions, instead writing notes to himself while the representatives wait for him to take notice of their queries. At other times, he claims an almost complete failure of memory, particularly regarding conversations he had with other Bush officials about interrogation techniques. [Washington Post, 6/27/2008] (He does admit to being briefed by Yoo about an August 2002 torture memo (see August 1, 2002), but denies assisting Yoo in writing it.) [Los Angeles Times, 6/27/2008] Addington refuses to talk more specifically about torture and interrogation practices, telling one legislator that he can’t speak to him or his colleagues “[b]ecause you kind of communicate with al-Qaeda.” He continues, “If you do—I can’t talk to you, al-Qaeda may watch C-SPAN.” When asked if he would meet privately to discuss classified matters, he demurs, saying instead: “You have my number. If you issue a subpoena, we’ll go through this again.” [Think Progress, 6/26/2008; Washington Post, 6/27/2008]
Yoo Dodges, Invokes Privilege - Milbank writes that Yoo seems “embolden[ed]” by Addington’s “insolence.” Yoo engages in linguistic gymnastics similar to Addington’s discussion with Conyers when Keith Ellison (D-MN) asks him whether a torture memo was implemented. “What do you mean by ‘implemented’?” Yoo asks. Ellison responds, “Mr. Yoo, are you denying knowledge of what the word ‘implement’ means?” Yoo says, “You’re asking me to define what you mean by the word?” Ellison, clearly exasperated, retorts, “No, I’m asking you to define what you mean by the word ‘implement.’” Yoo’s final answer: “It can mean a wide number of things.” [Washington Post, 6/27/2008] Conyers asks Yoo, “Could the president order a suspect buried alive?” Yoo responds, “Uh, Mr. Chairman, I don’t think I’ve ever given advice that the president could order someone buried alive.” Conyers retorts: “I didn’t ask you if you ever gave him advice. I asked you thought the president could order a suspect buried alive.” Yoo answers, “Well Chairman, my view right now is that I don’t think a president—no American president would ever have to order that or feel it necessary to order that.” Conyers says, “I think we understand the games that are being played.” Reporter Christopher Kuttruff writes, “Throughout his testimony, Yoo struggled with many of the questions being asked, frequently delaying, qualifying and invoking claims of privilege to avoid answering altogether.” [Human Rights First, 6/26/2008; Truthout (.org), 6/27/2008]
Retired AT&T “whistleblower” Mark Klein (see December 15-31, 2005 and July 7, 2009) has a short essay published in Wired News, sharply criticizing the recently passed legislation that amended the Foreign Intelligence Surveillance Act (FISA—see July 10, 2008) and granted telecommunications firms immunity from prosecution for helping government agencies illegally spy on American citizens. Klein initially offered the essay in letter form to the New York Times, but although the editors there showed what Klein will call “some interest,” they rejected the letter. Instead, Wired News’s Ryan Singel accepted the letter for one of his “Threat Level” columns. Singel describes Klein as “furious” at the vote, and quotes Klein: “[Wednesday]‘s vote by Congress effectively gives retroactive immunity to the telecom companies and endorses an all-powerful president. It’s a Congressional coup against the Constitution. The Democratic leadership is touting the deal as a ‘compromise,’ but in fact they have endorsed the infamous Nuremberg defense: ‘Just following orders.’ The judge can only check their paperwork. This cynical deal is a Democratic exercise in deceit and cowardice.… Congress has made the FISA law a dead letter—such a law is useless if the president can break it with impunity. Thus the Democrats have surreptitiously repudiated the main reform of the post-Watergate era and adopted Nixon’s line: ‘When the president does it that means that it is not illegal.’ This is the judicial logic of a dictatorship. The surveillance system now approved by Congress provides the physical apparatus for the government to collect and store a huge database on virtually the entire population, available for data mining whenever the government wants to target its political opponents at any given moment—all in the hands of an unrestrained executive power. It is the infrastructure for a police state.” [Wired News, 6/27/2008; Klein, 2009, pp. 108]
Milt Bearden, a retired 30-year CIA veteran who served as senior manager for clandestine operations, writes: “The [Bush] administration’s claims of having ‘saved thousands of Americans’ can be dismissed out of hand because credible evidence has never been offered—not even an authoritative leak of any major terrorist operation interdicted based on information gathered from these interrogations in the past seven years. All the public gets is repeated references to Jose Padilla (see June 10, 2002), the Lackawanna Six (see April-August 2001), the Liberty Seven (see June 23, 2006), and the Library Tower operation in Los Angeles (see October 2001-February 2002). If those slapstick episodes are the true character of the threat, then maybe we’ll be okay after all. When challenged on the lack of a game-changing example of a derailed operation, administration officials usually say that the need to protect sources and methods prevents revealing just how enhanced interrogation techniques have saved so many thousands of Americans. But it is irresponsible for any administration not to tell a credible story that would convince critics at home and abroad that this torture has served some useful purpose.” Bearden suggests that the CIA might have been permanently “broken” by its use of torture, and that some US officials will likely face the threat of being arrested overseas on torture charges for years to come. [Washington Independent, 7/1/2008]
President Bush signs the FISA Amendments Act of 2008 (FAA), a revamping and expansion of the original Foreign Intelligence Surveillance Act (see 1978). The legislation passed the House by a sweeping 293 to 129 votes, with most Democratic Congressional leaders supporting it over the opposition of the more liberal and civil liberties-minded Democrats. Republicans were almost unanimously supportive of the bill. Though Democratic Senators Russell Feingold (D-WI) and Christopher Dodd (D-CT) managed to delay the bill’s passage through the Senate, their attempt to modify the bill was thwarted by a 66-32 margin. (Dodd credits AT&T whistleblower Mark Klein (see December 15-31, 2005 and July 7, 2009) as one of the very few people to make the public aware of the illegal NSA wiretapping program, which the FISA amendment would protect. Without Klein, Dodd states, “this story might have remained secret for years and years, causing further erosion of our rights.”) Senator Barack Obama (D-IL), the party’s presumptive presidential nominee, gave his qualified support to the bill, stating: “Given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as president, I will carefully monitor the program.” Obama had opposed an earlier Senate version that would have given “blanket immunity” to the telecommunications companies for their participation in the illegal NSA wiretapping program (see December 15, 2005). House Speaker Nancy Pelosi (D-CA), who organized Democratic support for the bill in the House, said that she supported the bill primarily because it rejects Bush’s argument that a wartime chief executive has the “inherent authority” to conduct some surveillance activity he considers necessary to fight terrorism. It restores the legal notion that the FISA law is the exclusive rule on government spying, she said, and added: “This is a democracy. It is not a monarchy.” Feingold, however, said that the bill granted “retroactive immunity to the telecommunications companies that may have engaged in President Bush’s illegal wiretapping program.” The amendments restore many of the provisions of the expired Protect America Act (PAA—see August 5, 2007) that drastically modify the original FISA legislation and grant the government broad new surveillance powers. Like the PAA, the FAA grants “third parties” such as telecommunications firms immunity from prosecution for engaging in illegal surveillance of American citizens if they did so in partnership with government agencies such as the National Security Agency (NSA). [Washington Post, 6/20/2008; CNN, 6/26/2008; US Senate, 7/9/2008; White House, 7/10/2008; Klein, 2009, pp. 95-97] Senate Majority Leader Harry Reid (D-NV) actually refused to honor a “hold” placed on the bill by Dodd, a highly unusual move. Klein will later note that Reid has in the past always honored holds placed on legislation by Republicans, even if Democrats were strongly supportive of the legislation being “held.” Klein will write that Pelosi crafted a “showpiece” FISA bill without the immunity provisions, garnering much praise for her from civil liberties organizations; however, Pelosi’s colleague House Majority Leader Steny Hoyer (D-MD) had secretly worked with the White House to craft a bill that preserved immunity for telecoms, and on June 10, Pelosi “rammed” that bill through the House. The final bill actually requires the judiciary to dismiss lawsuits brought against telecom firms if those firms can produce evidence that they had worked in collusion with the NSA. Feingold later observes that the final bill is not a “compromise, it is a capitulation.” [Klein, 2009, pp. 101-103] Klein will write that Democrats and Republicans have worked together to “unw[ind] one of the main reforms of the post-Watergate era and accepted the outrageous criminal rationalizations of [President] Nixon himself.” Klein will quote Nixon as saying, “If the president does it, that means it’s not illegal” (see April 6, 1977), and will say that is “the essence of the FISA ‘compromise’” and turned Congress into the White House’s “rubber stamp.… It is the twisted judicial logic of a dictatorship.” [Klein, 2009, pp. 107]
Entity Tags: Nancy Pelosi, Foreign Intelligence Surveillance Act, FISA Amendments Act of 2008, Christopher Dodd, Barack Obama, George W. Bush, Mark Klein, Russell D. Feingold, Richard M. Nixon, Harry Reid, Steny Hoyer, National Security Agency, Protect America Act
Timeline Tags: Civil Liberties
Six FBI agents and one Naval Criminal Investigative Service (NCIS) agent testify at a military commission hearing for detainee Salim Ahmed Hamdan. Although at least one witness is anonymous, the FBI agents testifying include Robert Fuller and Craig Donnachie. Fuller admits that the bureau failed to read Hamdan his Miranda rights following his capture in 2001 (see November 24, 2001), and describes a tour of al-Qaeda facilities Hamdan took them on (see Shortly after November 24, 2001). Although Hamdan only provided what they thought was incomplete information, the agents all deny coercing or threatening him. [USA Today, 7/24/2008; Reuters, 7/24/2008]
The lawyer for Mohammed Jawad, a young Guantanamo detainee held in US captivity for almost six years (see December 17, 2002) and charged with attempted murder (see October 7, 2007), again attempts to have the charges against his client dismissed (see June 19, 2008). Major David Frakt shows evidence that General Thomas Hartmann, the military commission’s chief legal adviser, had pressured Guantanamo prosecutors to charge his client (see January 13, 2009 and January 18, 2009). Judge Stephen Henley finds that Hartmann had indeed brought undue pressure to prosecute Jawad, and bars Hartmann from any further involvement in the case as Hartmann has demonstrated his inability to stay neutral. Henley also orders a top-level review of the charges against Jawad. [Human Rights First, 9/2008] Henley will throw out the evidence against Jawad, ruling that Jawad’s confession was obtained through torture (see November 22, 2008).
As reported by progressive media watchdog site Media Matters, Jerome Corsi, author of a widely discredited book that smears presidential candidate Barack Obama (see August 1, 2008 and After), tells a C-SPAN interviewer that if Obama becomes president and people like Corsi dare to criticize him in print, “Obama might just have to create a department of hate crimes and put them in jail.” [Media Matters, 8/16/2008]
Lieutenant Colonel Darrel Vandeveld, a former Army prosecutor at Guantanamo, resigns his position after becoming increasingly disillusioned and despondent over the treatment of detainees at the facility, many of whom he believes are likely innocent.
A Reluctant Believer in Stories of Abuse - Vandeveld began as an enthusiastic prosecutor. He joined to help avenge the 9/11 attacks, and served for seven years as a military lawyer in Bosnia, Africa, Afghanistan, and Iraq. “All of us fought because we believed that we were protecting America and its ideals,” he will later write. “But my final tour of duty made me question everything we had done.” Vandeveld was a prosecutor for the Office of Military Commissions in Guantanamo from June 2007 through September 2008. He will write, “Warning signs appeared early on, but I ignored them.” He was powerfully impressed when his superior officer, Colonel Morris Davis, resigned rather than agree to pursue politically motivated prosecutions (see October 4, 2007). Vandeveld’s own turning point came when he began working on the prosecution of Mohammed Jawad, who was 16 at the time he was captured (see December 17, 2002). When Vandeveld learned that Jawad claimed to have been horrifically abused while in US custody, as he later recalls: “I accused him of exaggerating and ridiculed his story as ‘idiotic.’ I did not believe that he was a juvenile, and I railed against Jawad’s defense attorney, whom I suspected of being a terrorist sympathizer.” He came to change his mind, eventually filing a declaration in federal court “stating that it is impossible to prepare a fair prosecution against detainees at Guantanamo Bay (see January 13, 2009).… I had concluded that the system of handling evidence is a haphazard farce. I saw this clearly with Jawad.” Vandeveld will write that he has seen evidence proving both Jawad’s age and his stories of being brutalized, including beatings, being thrown down a flight of stairs, and being subjected to an intense program of sleep deprivation (see June 19, 2008): “As a juvenile, Jawad should have been treated with care, held separately from the adult population, and provided educational and other rehabilitation services. Instead, he was placed in isolation and deprived of sleep. More than once he tried to commit suicide, according to detainee records” (see December 2003).
Torturing an Innocent Man - Vandeveld began combing through evidence suggesting that Jawad was innocent, and found that not only had Jawad been duped and drugged by the terrorists who recruited him, the evidence shows that he never carried out the attack against US soldiers of which he stands accused. Vandeveld writes of the difficulties he had in gathering the evidence; military investigators repeatedly kept it from him. “Only after long delays and many, many requests was it finally given to me,” he will later write, “because even after nearly seven years, the military commissions do not have a system in place for discovering exculpatory evidence or providing it to the defense” (see January 20, 2009).
Sinking into Despair - Vandeveld began working towards Jawad’s release to his family in Afghanistan. But Vandeveld’s superiors refused to countenance the idea. Vandeveld will write of his increasing depression and despair, and his inability to discuss his mental anguish with his family or friends due to the classified nature of the case. He finally turned to a Jesuit priest, Father John Dear, whom, he writes, “has written and spoken widely about justice.” He could not give Dear more than an overview of the situation, but Dear’s advice was blunt. “Quit Gitmo,” Dear told him. “The whole world knows it is a farce. Refuse to cooperate with evil, and start your life over.” But Vandeveld was afraid to take Dear’s advice. As he recalls, “I was afraid of losing friends, my job, whatever popularity I enjoyed, and my status as someone who was well thought of in this community.”
Resignation - It was Dear and, ironically, Jawad’s defense lawyer, whom Vandeveld descirbes as “a scorned adversary whose integrity and intelligence transformed him into a trusted friend,” who finally led Vandeveld to make a decision: he resigns. His final appearance before the Guantanamo military commissions was as a witness in Jawad’s defense (see January 13, 2009). “My testimony was a confession of sorts,” he later writes, “an acknowledgment of the error of my own ways as well as a candid admission of the shortcomings of the system that I had so enthusiastically supported.” [Washington Post, 1/18/2009] Vandeveld will write that Guantanamo has become a “stain” on the US’s international reputation (see January 18, 2009). He will also call for Jawad’s release (see January 13, 2009).
The Electronic Frontier Foundation (EFF) files a lawsuit against the National Security Agency (NSA), President Bush, Vice President Dick Cheney, former Attorney General and White House counsel Alberto Gonzales, former Cheney chief of staff David Addington, and other members of the Bush administration. The EFF claims the lawsuit is “on behalf of AT&T customers to stop the illegal unconstitutional and ongoing dragnet surveillance of their communications and communications records.” The EFF is referring to its ongoing lawsuit against AT&T and other telecommunications firms, which it accuses of colluding with the NSA to illegally monitor American citizens’ domestic communications (see December 15, 2005). The case, the EFF writes, “is aimed at ending the NSA’s dragnet surveillance of millions of ordinary Americans and holding accountable the government officials who illegally authorized it.” After January 2009, the newly elected Obama administration will challenge the lawsuit, Jewel v. NSA, on the grounds that to defend itself against the lawsuit, the government would be required to disclose “state secrets” (see Late May, 2006). The government used similar arguments to quash the EFF’s lawsuit against AT&T (see April 28, 2006), arguments which were rejected by a judge (see July 20, 2006). [Electronic Frontier Foundation, 2009] The suit will be dismissed (see January 21, 2010).
John LaBruzzo. [Source: Daniel Erath / Times-Picayune]Louisiana State Representative John LaBruzzo (R-Metarie) says he is considering a legislative proposal to offer poor women $1,000 to be sterilized. LaBruzzo says that poor people who receive government aid such as food stamps and publicly subsidized housing are reproducing at a faster rate than more affluent, better-educated people. Offering poor women money to have their fallopian tubes “tied” would lower their birth rates, LaBruzzo explains. “We’re on a train headed to the future and there’s a bridge out,” he says of what he calls potentially dangerous demographic trends. “And nobody wants to talk about it.… What I’m really studying is any and all possibilities that we can reduce the number of people that are going from generational welfare to generational welfare.” Such payments would be voluntary, he says, and might include other forms of birth control, including vasectomies for men. He would also consider tax incentives for college-educated, higher-income couples to have more children. LaBruzzo, who represents the same district that sent former Ku Klux Klan leader David Duke to the Louisiana State House in 1989, is receiving criticism that calls his proposal racist, sexist, unethical, and immoral. LaBruzzo counters that since more white people are on welfare than black people, his proposal is not targeting race. “It’s easy to say, ‘Oh, he’s a racist,’” LaBruzzo says. “The hard part is to sit down and think of some solutions.” LaBruzzo is opposed to abortion in any form, and describes his sterilization program proposal as providing poor people with better opportunities to avoid welfare, because they would have fewer children to feed and clothe. [New Orleans Times-Picayune, 9/23/2008]
The US and Britain jointly drop all charges against terror suspect Binyam Mohamed, realizing that Mohamed’s confession to his involvement in a so-called “dirty bomb” plot (see November 4, 2005) is likely the product of torture and not real (see July 21, 2002 -- January 2004). However, his captors refuse to release him from Guantanamo, driving him to try to force the matter by filing a lawsuit (see February 4, 2009) and going on a hunger strike (see February 8, 2009). In late February 2009, Mohamed will be released (see February 22-24, 2009). [Daily Mail, 3/8/2009]
Steven Bradbury, the head of the Justice Department’s Office of Legal Counsel (OLC), officially repudiates an OLC memo from seven years earlier claiming that the president has the unilateral authority to order military strikes or raids within the US (see October 23, 2001). “[C]aution should be exercised before relying in any respect” on the memo, Bradbury writes, and it “should not be treated as authoritative for any purpose.” The 2001 contention that the Fourth Amendment is, for all intents and purposes, irrelevant in the face of presidential authority “does not reflect the current views of this Office,” Bradbury writes. Another portion of that 2001 memo, the contention that the president can set aside First Amendment rights of free speech and freedom of the press (see October 23, 2001), are no longer operative, Bradbury writes. Much of Bradbury’s memo is an attempt to explain and justify the 2001 memo by recalling the period of anxiety and disarray after the 9/11 attacks. [US Department of Justice, 10/6/2008 ; American Civil Liberties Union [PDF], 1/28/2009 ] Yale law professor Jack Balkin will later note that the memo does not repudiate “any of the Bush administration’s specific policies regarding surveillance, detention, and interrogation.” [Jack Balkin, 3/3/2009]
Responding to speculation that his administration will continue the policies of torture and indefinite detention, President-elect Barack Obama says flatly that he will shut down the Guantanamo detention center as part of his administration’s new policy towards terror suspects. CBS interviewer Steve Kroft asks: “There are a number of different things that you could do early pertaining to executive orders. One of them is to shut down Guantanamo Bay. Another is to change interrogation methods that are used by US troops. Are those things that you plan to take early action on?” Obama responds: “Yes. I have said repeatedly that I intend to close Guantanamo, and I will follow through on that. I have said repeatedly that America doesn’t torture. And I’m gonna make sure that we don’t torture. Those are part and parcel of an effort to regain America’s moral stature in the world.” [Wall Street Journal, 11/11/2008; CBS News, 11/16/2008] Two days into his administration, Obama orders that the Guantanamo detention facility be closed (see January 22, 2009).
Mohamed al-Khatani in September 2009. [Source: US Defense Department]Military prosecutors at Guantanamo say they are going to file new war crimes charges against Mohamed al-Khatani, the so-called “20th hijacker” in the 9/11 plot. The senior official in charge of prosecutions at Guantanamo, Susan Crawford, dismissed similar charges against al-Khatani six months before (see May 13, 2008). Military officials now say that even though al-Khatani was originally interrogated using previously approved, then later disapproved, techniques (see August 8, 2002-January 15, 2003 and October 11, 2002), those previous interrogations will not make it impossible to try him. Speculation has been rife that Crawford dismissed the charges against al-Khatani over concerns that he was tortured at Guantanamo. (In 2009, Crawford will verify that al-Khatani was indeed tortured—see January 14, 2009). Colonel Lawrence Morris, the chief prosecutor at Guantanamo, says of al-Khatani, “His conduct is significant enough that he falls into the category of people who ought to be held accountable by being brought to trial.” According to evidence compiled by the 9/11 Commission, al-Khatani was slated to have been one of the “muscle hijackers” (see August 4, 2001). Lieutenant Colonel Bryan Broyles, al-Khatani’s defense lawyer, says new charges filed against his client would be disturbing. “It speaks about the moral bankruptcy of this whole process,” Broyles says, “that there’s nothing we can do to these people that is too much, that there are no consequences for our own misconduct.” [New York Times, 11/18/2008]
Federal Judge Richard Leon rules that the US government has unlawfully held five Algerian men at Guantanamo for nearly seven years (see January 18, 2002). Leon orders their release. Leon rules that the government’s case, based on a slender compilation of classified evidence, was too weak to justify the five men’s continued detention. The government’s case is based on a single “classified document from an unnamed source” for its central claim against the men, and the court has no way to accurately judge its credibility. “To rest on so thin a reed would be inconsistent with this court’s obligation,” Leon writes. He urges the Bush administration not to appeal the ruling, and recommends that they be released “forthwith.” Leon rules that a sixth Algerian, Bensayah Belkacem (see October 8, 2001), is being lawfully detained due to his demonstrable ties with al-Qaeda. The six are among the Guantanamo inmates who won a narrowly decided Supreme Court case recognizing their right to seek redress in the US court system (see June 22, 2008), and include Lakhdar Boumediene, for whom the Court’s ruling was named. Leon, a Republican appointee previously considered sympathetic to the Bush administration’s position on the detention of suspects, urges the government not to appeal his ruling: such an appeal could take as much as two years, and, he notes, “Seven years of waiting for our legal system to give them an answer to a question so important is, in my judgment, more than plenty.” If the government chooses not to appeal, the lawyers for the detainees expect them to be released into Bosnia, where they were arrested in early 2002. The Justice Department calls the ruling “perhaps an understandable consequence of the fact that neither the Supreme Court nor Congress has provided rules on how these habeas corpus cases should proceed in this unprecedented context.” One of the detainees’ lawyers, Robert Kirsch, says the case illustrates “the human cost of what can happen when mistakes are made at the highest levels of our government, and no one has the courage to acknowledge those mistakes.” Other detainee lawyers say the case is a broad repudiation of the Bush administration’s attempts to use the Guantanamo facility to avoid the scrutiny of US judges. Lawyer Zachary Katznelson, a member of the British human rights group Reprieve, says, “The decision by Judge Leon lays bare the scandalous basis on which Guantánamo has been based—slim evidence of dubious quality.” The case was not strengthened by the Bush administration’s pursuit of it: originally the six were charged with planning a bomb attack on the US Embassy in Sarajevo, Bosnia, but in October, Justice Department lawyers abruptly withdrew those accusations. [New York Times, 11/20/2008; National Review, 11/20/2008] The five will be released the following month (see December 2008).
The judge in the case of Guantanamo detainee Mohammed Jawad (see December 17, 2002 and October 7, 2007) throws out the evidence against Jawad, saying that it was obtained under coercion. Jawad was charged with throwing a grenade at two US soldiers in Kabul, Afghanistan. The judge, Colonel Stephen Henley, finds that the sole evidence against Jawad, a confession he signed while in the custody of Afghan police, was, as the American Civil Liberties Union says, “gathered through coercive interrogations.” [Ottawa Citizen, 11/22/2008]
The conservative Washington Times, a staunch opponent of President-elect Barack Obama, publishes an editorial predicting that the incoming Obama administration will, in some form or fashion, move to “exterminate” babies with disabilities and other “useless” Americans through its promised reform of the US health care system, similar to actions taken by the Nazis before World War II. The Times provides a brief synopsis of Adolf Hitler’s “T4 Aktion” program designed, in the words of the Times, “to exterminate ‘useless eaters,’ babies born with disabilities. When any baby was born in Germany, the attending nurse had to note any indication of disability and immediately notify T4 officials—a team of physicians, politicians, and military leaders. In October 1939 Hitler issued a directive allowing physicians to grant a ‘mercy death’ to ‘patients considered incurable according to the best available human judgment of their state of health.’ Thereafter, the program expanded to include older children and adults with disabilities, and anyone anywhere in the Third Reich was subject to execution who was blind, deaf, senile, retarded, or had any significant neurological condition, encephalitis, epilepsy, muscular spasticity, or paralysis. Six killing centers were eventually established, and an estimated quarter-million people with disabilities were executed.” The Times draws a parallel between the Nazis and the Obama administration’s support for legal abortion and for physician-assisted suicide, which it equates with “euthanasia.” The incoming administration will, the Times fears, begin “selecting” babies with disabilities for what apparently will be “selective abortions.” It quotes the Reverend Briane K. Turley as saying: “Were God’s design for us left unhindered, we could naturally expect to welcome 40,000 or more newborn infants with Down syndrome each year in the US. And yet we have reduced that number to just under 5,500. These data strongly indicate that, in North America, we have already discovered a new, ‘final solution’ for these unusual children and need only to adapt our public policies to, as it were, ‘cure’ all Down syndrome cases.” Turley, the Times notes, claims that “there is growing evidence suggesting that, among health care practitioners and systems, the central motivation behind legally enforced or high pressure screenings is economics.” The Times then adds: “[A]nd the results seem to bear him out. America’s T4 program—trivialization of abortion, acceptance of euthanasia, and the normalization of physician assisted suicide—is highly unlikely to be stopped at the judicial, administrative, or legislative levels anytime soon, given the Supreme Court’s current and probable future makeup during the Obama administration, the administrative predilections that are likely from that incoming administration, and the makeup of the new Congress.” The Times predicts a new “final solution” of “extermination” that will start with disabled infants and will progress “from prenatal to postnatal to child to adult.” [Washington Times, 11/23/2008] The editorial anticipates the “deather” claims that many conservatives will make in the summer of 2009 (see January 27, 2009, February 9, 2009, February 11, 2009, February 18, 2009, May 13, 2009, June 24, 2009, June 25, 2009, July 10, 2009, July 16, 2009, July 17, 2009, July 21, 2009, July 23, 2009, July 23, 2009, July 23, 2009, July 23-24, 2009, July 24, 2009, July 28, 2009, July 28, 2009, July 28, 2009, July 31, 2009 - August 12, 2009, August 6, 2009, August 7, 2009, August 10, 2009, August 10, 2009, Shortly Before August 10, 2009, August 11, 2009, August 11, 2009, August 12, 2009, August 12, 2009, and August 13, 2009).
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