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An FBI investigation into Jane Harman (D-CA), the ranking minority member of the House Intelligence Committee, is halted by Attorney General Alberto Gonzales, according to three former top national security officials. The investigation was to determine whether she agreed to use her influence on behalf of accused Israeli spies in return for Israeli support in being named chairman of the committee (see Summer 2005, October 2005 and December 2, 2006). In contrast to the former officials’ claims, the media will report that the investigation is ended due to “lack of evidence” of impropriety or illegal behavior on Harman’s part. However, according to the former officials, Gonzales wants Harman to help defend the administration’s warrantless wiretapping program, which is about to be revealed by a long-simmering New York Times story (see December 15, 2005). The evidence against Harman includes NSA wiretaps of a conversation between her and an Israeli agent. Reporter Jeff Stein will write, “As for there being ‘no evidence’ to support the FBI probe, a source with first-hand knowledge of the wiretaps called that ‘bull****.’” Another former national security officer will confirm Harman’s presence on the wiretaps. “It’s true,” the official will say. “She was on there.” Justice Department attorneys in the intelligence and public corruption units have concluded that Harman had committed what they called a “completed crime,” meaning there was evidence to show that she had attempted to complete it; they were prepared to open a case on her that would include wiretaps approved by the Foreign Intelligence Surveillance Court (FISC). CIA Director Porter Goss certified the FISA wiretapping request, and decided to inform House Speaker Dennis Hastert (R-IL) and ranking House Democrat Nancy Pelosi (D-CA) of the impending FBI investigation. At this point, say Stein’s sources, Gonzales intervenes to stop the investigation. Two officials with knowledge of the events will say that, in Gonzales’s words, he “needed Jane” to help support the warrantless wiretapping program once it became public knowledge. Gonzales tells Goss that Harman had helped persuade the Times to refrain from publishing the story in late 2004 (see Early November 2004, December 6, 2005, and Mid-2005), and although the Times would no longer wait on the story, Harman could be counted on to help defend the program. She will do just that (see December 21, 2005 and February 8-12, 2006). Hastert and Pelosi are never told of the FBI investigation. Stein will also learn that Goss’s successor, Michael Hayden, will later be informed of the potential investigation, but choose to take no action. Likewise, Director of National Intelligence John Negroponte will oppose any such investigation. Former officials who will pursue the Israeli espionage case for years will say, in Stein’s words, that “Harman dodged a bullet… [s]he was protected by an administration desperate for help.” A recently retired national security official closely involved in the investigation will add: “It’s the deepest kind of corruption. It’s a story about the corruption of government—not legal corruption necessarily, but ethical corruption.” [Congressional Quarterly, 4/19/2009]
Entity Tags: Jeff Stein, Federal Bureau of Investigation, Dennis Hastert, Alberto R. Gonzales, Foreign Intelligence Surveillance Court, Jane Harman, Michael Hayden, Porter J. Goss, John Negroponte, House Intelligence Committee, New York Times, Nancy Pelosi
Timeline Tags: Civil Liberties
In his weekly radio address, President Bush claims that the US always obtains court warrants before launching electronic surveillance efforts. “The Patriot Act is helping America defeat our enemies while safeguarding civil liberties for all our people,” he says. “The judicial branch has a strong oversight role in the application of the Patriot Act. Under the act, law enforcement officers need a federal judge’s permission to wiretap a foreign terrorist’s phone or search his property. Congress also oversees our use of the Patriot Act. Attorney General Gonzales delivers regular reports on the Patriot Act to the House and the Senate.” [White House, 12/10/2005] Bush has made similar claims in the recent past (see April 19-20, 2004, June 9, 2005, and April 19-20, 2004). Former AT&T senior technician Mark Klein (see July 7, 2009 and May 2004), who helped install the equipment used by the National Security Agency (NSA) and his firm to intercept foreign and domestic Internet communications (see January 16, 2004), will later say that Bush’s insistence that the administration gets court orders before wiretapping communications is false. AT&T, on behalf of the NSA, was monitoring “billions of messages a second,” Klein will write, all without court orders. [Klein, 2009, pp. 47-48]
The Washington Post learns that the Justice Department has barred staff attorneys from offering recommendations in major Voting Rights Act (VRA—see August 6, 1965) cases, a drastic change from the earlier policy, which was designed to insulate such decision from political considerations. The decision comes amid what the Post calls “growing public criticism of Justice Department decisions to approve Republican-engineered plans in Texas (see December 12, 2003, December 2, 2005, and December 5, 2005) and Georgia (see 2005, November 25, 2005, and September 19, 2006) that were found to hurt minority voters by career staff attorneys who analyzed the plans. Political appointees overruled staff findings in both cases.” In the Georgia redistricting case, a staff memo advised rejecting the Georgia plan because it required voters to show photo ID at the polls, a policy that the memo said would disenfranchise some African-American voters. Under the new policy, that recommendation was removed from the memo and was not forwarded to higher officials in the civil rights division (CRD). The DOJ has claimed the August 25 memo was “an early draft,” even though the DOJ gave “preclearance” for the Georgia plan to be adopted on August 26. A federal judge blocked the law’s implementation, calling it a return to Jim Crow-era policies. The policy was adopted by John Tanner, the head of the CRD’s voting rights section (VRS). DOJ spokesperson Eric Holland says, “The opinions and expertise of the career lawyers are valued and respected and continue to be an integral part of the internal deliberation process upon which the department heavily relies when making litigation decisions.” Tanner has recently lambasted the quality of work by the VRS staff, some of whom have been in the section for decades. Some of the staff members boycotted the staff Christmas party because they were too angry to attend, sources within the section say. Experts like Jon Greenbaum, a VRS veteran who now directs the Voting Rights Project at the Lawyers’ Committee for Civil Rights Under Law, says that stopping staff members from making such recommendations is a significant departure and runs the risk of making the process appear more political. “It’s an attempt by the political hierarchy to insulate themselves from any accountability by essentially leaving it up to a chief, who’s there at their whim,” he says. “To me, it shows a fear of dealing with the legal issues in these cases.” Congressional Democrats are critical of the new policy and are joined by Senate Judiciary Committee Chairman Arlen Specter (R-PA), who is considering holding hearings on the Texas redistricting case. Senator Edward Kennedy (D-MA) says, “America deserves better than a civil rights division that puts the political agenda of those in power over the interests of the people its serves.” Attorney General Alberto Gonzales and other DOJ officials have disagreed with the criticism, and asserted that politics play no role in civil rights decisions. Assistant Attorney General William Moschella has recently written to Specter, criticizing the Post’s coverage and claiming that the department is aggressively enforcing a range of civil rights laws. “From fair housing opportunities, equal access to the ballot box, and criminal civil rights prosecutions to desegregation in America’s schools and protection of the rights of the disabled, the division continues its noble mission with vigor,” he wrote. [Washington Post, 12/10/2005]
Time magazine reporter Viveca Novak writes an article discussing her recent testimony to the grand jury investigating the Plame Wilson identity leak. Novak was asked to testify (see December 2, 2005) after special prosecutor Patrick Fitzgerald learned of her conversation with Robert Luskin, the lawyer for White House official Karl Rove. Rove is a primary focus of the leak investigation. In 2004, Novak alerted Luskin that her colleague, Matthew Cooper, had learned of Valerie Plame Wilson’s CIA identity from Rove (see March 1, 2004). That information prompted Luskin to have Rove “alter” his testimony before Fitzgerald’s grand jury, and admit that he had leaked Plame Wilson’s identity to Cooper (see October 14, 2005). Novak defends her conversation with Luskin, admitting that she and Luskin had been casual friends since 1996, and she had used him as a source for several years. Luskin, Novak recalls, informed her in late October 2005 that he had told Fitzgerald of their 2004 conversation, and that Fitzgerald might want to subpoena her to testify. Novak writes that she never considered refusing to testify, since there was no need to try to protect Luskin as a source, and Luskin wanted her to testify anyway. Novak hired a lawyer but did not inform her editors at Time of the upcoming testimony. She spoke with Fitzgerald on November 10 (see November 10, 2005) and testified a month later (see December 8, 2005). Novak notes that Luskin is displeased about her decision to write about their conversation, but, she writes, “I feel that he violated any understanding to keep our talk confidential by unilaterally going to Fitzgerald and telling him what was said. And, of course, anyone who testifies under oath for a grand jury (my sworn statement will be presented to the grand jury by Fitzgerald) is free to discuss that testimony afterward.” After this article is published in Time, the magazine announces, “By mutual agreement, Viveca Novak is currently on a leave of absence.” [Time, 12/11/2005]
The Army adopts a new, classified set of interrogation methods that some feel may change the nature of the debate over cruel and inhuman treatment of detainees in US custody. The Detainee Treatment Act (DTA—see December 30, 2005), which bases its definition of torture in part on Army standards, is currently wending its way through Congress. The new set of instructions are being added to the revised Army Field Manual, after they are approved by undersecretary of defense Stephen Cambone. The addendum provides exact details on what kinds of interrogation procedures can and cannot be used, and under what circumstances, pushing the legal limit of what interrogations can be used in ways that the Army has never done before. Some military observers believe that the new guidelines are an attempt by the Army to undercut the DTA, and many believe the bill’s sponsor, Senator John McCain (R-AZ) will be unhappy with the addendum. “This is a stick in McCain’s eye,” one official says. “It goes right up to the edge. He’s not going to be comfortable with this.” McCain has not yet been briefed on the contents of the new guidelines. McCain spokesman Mark Salter says, “This is politically obtuse and damaging. The Pentagon hasn’t done one molecule of political due diligence on this.” One Army officer says that the core of the definition of torture—what is and is not “cruel, inhumane, and degrading” treatment—“is at the crux of the problem, but we’ve never defined that.” The new Army Field Manual specifically prohibits such tactics as stress positioning, stripping prisoners, imposing dietary restrictions, using police dogs to intimidate prisoners, and sleep deprivation. The new manual is expected to be issued before the end of the year. [New York Times, 12/14/2005] The day after this is reported, President Bush agrees not to veto the DTA (see December 15, 2005).
Conservative columnist Robert Novak, who first outed Valerie Plame Wilson as a CIA agent (see July 14, 2003), writes that he believes President Bush knows which administration official or officials leaked Plame Wilson’s identity to the press. If Novak is correct, this would implicate Bush in a potential crime. [Washington Post, 7/3/2007]
The law firm of Jones Day submits the first classified document request to special counsel Patrick Fitzgerald on behalf of its client, Lewis Libby. The letter reads in part, “The documents requested include not only documents in the possession, custody, or control of your office, but also (a) documents in the possession, custody, or control of any agency allied with the prosecution, including without limitation the FBI, CIA, and the Office of the Vice President (‘OVP’), and (b) all other documents of which your office has knowledge and to which it has access.” The request is for, among other documents, Libby’s White House notes from May 2003 through March 2004; all documents pertaining to Libby’s morning intelligence briefings from May 2003 through March 2004, and including all Presidential Daily Briefings (PDBs); any CIA damage assessment performed in light of the Plame Wilson identity leak; and any documents pertaining to Valerie Plame Wilson’s status as a clandestine CIA official. [Letter to Patrick Fitzgerald from Jones Day re United States v. I. Lewis Libby, 12/14/2005, pp. 2-5 ] None of the lawyers for either the prosecution or the defense are aware of an in-house CIA assessment of the “severe” damage caused by the leak (see Before September 16, 2003).
The Bush administration relents in its opposition to the Detainee Treatment Act (DTA), which would ban torture of prisoners by US personnel (see July 24, 2005 and After and December 30, 2005). President Bush meets with the bill’s primary sponsor, Senator John McCain (R-AZ), and John Warner (R-VA), chairman of the Senate Armed Service Committee, in a press conference to praise the bill. McCain says after the conference that the bill “is a done deal.” The bill still faces some opposition from Congressional Republicans such as House Armed Services Committee chairman Duncan Hunter (R-CA), who says he won’t vote for the bill unless it can be amended to ensure that the nation’s ability to gather intelligence is not diminished. Both the House and Senate have voted by veto-proof margins to accept the bill, which is actually an amendment to a defense appropriations bill. McCain says after the conference with Bush and Warner, “We’ve sent a message to the world that the United States is not like the terrorists. We have no grief for them, but what we are is a nation that upholds values and standards of behavior and treatment of all people, no matter how evil or bad they are.” Bush says the ban “is to make it clear to the world that this government does not torture and that we adhere to the international convention of torture, whether it be here at home or abroad.” McCain has been the target of months of vilification and opposition from the White House over the bill, which argued that the bill would limit Bush’s authority to protect the US from terrorist attacks, and that the bill is unnecessary because US officials do not torture. [CNN, 12/15/2005]
Loopholes - But the bill contains key loopholes that some experts believe significantly waters down the bill’s impact. Author Alfred McCoy, an expert on the CIA, notes that the bill as revised by White House officials does not give any real specifics. Attorney General Alberto Gonzales will assert that the only restrictions on prisoner interrogations are the ban on “severe” psychological or physical pain, “the same linguistic legerdemain that had allowed the administration to start torturing back in 2002” (see August 1, 2002). Gonzales also implies that practices such as waterboarding are not prohibited. [TomDispatch (.com), 2/8/2006]
Legal Cover - A provision of the bill inserted after negotiation with White House officials says that CIA and military officials accused of torture can claim legal protection by arguing that they were simply following the orders of their superiors, or they have a reasonable belief that they are carrying out their superiors’ wishes. McCain dropped the original provision that all military personnel must follow the stringent guidelines for interrogation laid out in the Army Field Manual; the bill now follows the Uniform Code of Military Justice, which says that anyone accused of violating interrogation rules can defend themselves if a “reasonable” person could conclude they were following a lawful order. McCain resisted pressure from the White House to include language that would afford interrogators accused of torture protection from civil or criminal lawsuits. [CNN, 12/15/2005; Associated Press, 12/15/2005]
Controversial Amendment - Perhaps even more troubling is an amendment to the bill that would essentially strip the judiciary’s ability to enforce the ban. The amendment, originally crafted by senators Lindsey Graham (R-SC) and Jon Kyl (R-AZ) and added to by Carl Levin (D-MI), denies Guantanamo detainees the right to bring legal action against US personnel who torture or abuse them—effectively denying them the fundamental legal right of habeas corpus. It also gives the Defense Department the implicit ability to consider evidence obtained through torture or inhumane treatment in assessing detainees’ status. Human Rights Watch (HRW) says that the DTA marks the first time in history that Congress would allow the use of evidence obtained through torture. HRW’s Tom Malinowski says, “With the McCain amendment, Congress has clearly said that anyone who authorizes or engages in cruel techniques like water boarding is violating the law. But the Graham-Levin amendment leaves Guantanamo detainees no legal recourse if they are, in fact, tortured or mistreated. The treatment of Guantanamo Bay detainees will be shrouded in secrecy, placing detainees at risk for future abuse.… If the McCain law demonstrates to the world that the United States really opposes torture, the Graham-Levin amendment risks telling the world the opposite.” [Human Rights Watch, 12/16/2005] Geoffrey Corn, a retired Army lieutenant colonel and Judge Advocate General lawyer, agrees. In January 2006, he will write that the “recent compromise inclusion of an ‘obedience to orders’ defense… has effectively undermined the goal Senator John McCain fought so long to achieve. Instead of sending a clear message to US forces that cruel, inhumane, or degrading treatment of detainees is never permissible, the compromise has validated President Bush’s belief that the necessities of war provide the ultimate ‘trump card’ to justify ‘whatever it takes’ in the war on terror.” [Jurist, 1/6/2006]
Entity Tags: Tom Malinowski, Lindsey Graham, US Department of Defense, Jon Kyl, Uniform Code of Military Justice, John McCain, John W. Warner, Geoffrey Corn, Alberto R. Gonzales, Bush administration (43), Alfred McCoy, Carl Levin, Detainee Treatment Act, Central Intelligence Agency, Human Rights Watch, Duncan Hunter
Timeline Tags: Torture of US Captives, Civil Liberties
The House of Representatives overwhelmingly approves the Senate’s amendment to a defense appropriations bill that outlaws torture (see October 1, 2005 and November 1-4, 2005), 308-122, after the Republican House leadership stops blocking a vote on the amendment (see October 1, 2005). The next day, President Bush meets privately with the author of the amendment, Senator John McCain (R-AZ). In a surprising reversal of the White House’s opposition to the bill, Bush now says he supports the amendment—or will if McCain makes some changes. Bush asks McCain to alter the language of the amendment so that US intelligence officers, if charged with war crimes due to their abuse of a prisoner, can offer a defense that a “reasonable” person could conclude they were following a lawful order. McCain agrees. Bush and McCain hold a joint press conference to announce the White House’s support for the amendment (see December 15, 2005). The press bills the agreement between Bush and McCain as a serious setback for Vice President Cheney, the leader of the White House’s opposition to the bill, with the New York Times calling the vote a “stinging defeat” for Bush and a “particularly significant setback for Vice President Dick Cheney, who since July has led the administration’s fight to defeat the amendment or at least exempt the Central Intelligence Agency from its provisions” (see October 20, 2005). [Dubose and Bernstein, 2006, pp. 196; Savage, 2007, pp. 223]
Retired AT&T technician Mark Klein (see July 7, 2009 and May 2004) is gladdened to see the New York Times’s reports on the Bush administration’s warrantless wiretapping program (see December 15, 2005 and December 24, 2005). Klein has known since 2002 that the National Security Agency (NSA) has been using AT&T facilities to illegally eavesdrop on American citizens’ telephone and Internet communications (see Late 2002, January 2003, October 2003, Fall 2003, Late 2003, Late 2003, and January 16, 2004). He has considered going public with his knowledge, but has so far refrained because, he will later explain, “[t]he atmosphere was still kind of scary.” He will later say of the Times report, “They seemed to be talking mainly about phone calls, but anyway, it was revealed that there was an illegal spying program going on, and I thought, ‘Ah, this would probably blow the whole thing,’ and I thought it would all come out, and I don’t need to do anything.” However, Klein is horrified to see the government’s response. He will say: “[W]hat came out was the government turned around and went on the offensive against anybody who would dare to criticize them.… They’re issuing threats: Anyone who has a security clearance and spills any beans here is in for prosecution. That was deliberately said by them several times on TV to intimidate anybody in, say, the NSA who knew the truth, intimidate them so they would not come forward. So that silenced anybody in the intelligence community” (see December 17, 2005, December 19, 2005, December 21, 2005, December 30, 2005, and January 25-26, 2006). In his 2009 book Wiring Up the Big Brother Machine… and Fighting It, Klein will write that the Justice Department’s December 2005 investigation into the leak of classified information that led to the Times reports (see December 30, 2005) “was obviously intended to silence Congress, the media, and any potential whistleblowers inside the NSA who might have been tempted to come forward. The administration was manipulating the secrecy oath which people had taken to get security clearances, turning it into a weapon to silence anyone who had knowledge of wrongdoing.” Klein decides that he must come forward. He never received a security clearance, so he cannot be threatened with legal action over violating such clearance. He will explain: “All I had and still have are some company documents and some knowledge of some illicit NSA installation at AT&T’s network. And if anybody—say, Congress—was willing to follow the trail, I can give them all the names they want, and they can go up the hierarchy of AT&T all the way up to Dave Dorman, who was the president back then, and they can go even higher, and they can find out who is responsible for this, and they can ask them under oath and subpoena what the heck is going on here, if they had the will to do it.” Klein later admits to some hesitation and trepidation at undertaking such an effort, and will cite the “McCarthyite” atmosphere he says the government has created in which “dissidents become the target of a lynch mob searching for ‘terrorists.’” But, he will write, he believes the Times stories are “a political indication of a shift at the top of government, a split of some kind which could provide an opening.… Maybe they would publish my material, I thought, and that would provide some protection.” By December 31, Klein writes a preface to his memo from almost two years before (see January 16, 2004 and December 31, 2005). [PBS Frontline, 5/15/2007; Klein, 2009, pp. 52-53]
During a press conference, President Bush is asked if he will order an investigation into the leak that revealed the NSA’s domestic surveillance program (see December 15, 2005). Bush says he has not directly ordered an investigation, presuming the Justice Department is handling the matter, but he calls the leak “a shameful act for someone to disclose this very important program in a time of war.” And he implies that the leak, and the New York Times’s decision to print the resulting article, is treason: “The fact that we’re discussing this program is helping the enemy.… But it is a shameful act by somebody who has got secrets of the United States government and feels like they need to disclose them publicly.” When asked why he “skip[ped] the basic safeguards of asking courts for permission for the intercepts,” he answers: “[R]ight after September the 11th, I knew we were fighting a different kind of war. And so I asked people in my administration to analyze how best for me and our government to do the job people expect us to do, which is to detect and prevent a possible attack. That’s what the American people want. We looked at the possible scenarios. And the people responsible for helping us protect and defend came forth with the current program, because it enables us to move faster and quicker. And that’s important. We’ve got to be fast on our feet, quick to detect and prevent. We use FISA still—you’re referring to the FISA court in your question—of course, we use FISAs. But FISA is for long-term monitoring. What is needed in order to protect the American people is the ability to move quickly to detect. Now, having suggested this idea, I then, obviously, went to the question, is it legal to do so? I am—I swore to uphold the laws. Do I have the legal authority to do this? And the answer is, absolutely.… [T]he legal authority is derived from the Constitution, as well as the authorization of force by the United States Congress” (see September 14-18, 2001). A reporter asks why “has your administration not sought to get changes in the law instead of bypassing it, as some of your critics have said?” Bush responds by reiterating the point that the program is “limited in nature to those that are known al-Qaeda ties and/or affiliates.” He then reiterates another point: he believes he has the authority to bypass the law. He “share[s] the same concerns” about civil liberties that members of Congress have expressed (see December 16, 2005).” However, his reassurances that domestic calls are not being monitored are not absolute. “[I]f you’re calling from Houston to [Los Angeles], that call is not monitored. And if there was ever any need to monitor, there would be a process to do that.” He is asked: “You say you have an obligation to protect us. Then why not monitor those calls between Houston and LA? If the threat is so great, and you use the same logic, why not monitor those calls? Americans thought they weren’t being spied on in calls overseas—why not within the country, if the threat is so great?” Bush replies: “We will, under current law, if we have to. We will monitor those calls. And that’s why there is a FISA law. We will apply for the right to do so. And there’s a difference—let me finish—there is a difference between detecting so we can prevent, and monitoring. And it’s important to know the distinction between the two.” He concludes, “I just want to assure the American people that, one, I’ve got the authority to do this; two, it is a necessary part of my job to protect you; and, three, we’re guarding your civil liberties.” [White House, 12/19/2005]
In an interview on ABC’s “Nightline,” Vice President Cheney takes exception to recent press reports that he was defeated in his opposition to a Congressional anti-torture bill (see December 15-16, 2005). The line on torture is, he says, whether or not a particular act “shocks the conscience.” Cheney says: “Now you can get into a debate about what shocks the conscience and what is cruel and inhumane. And to some extent, I suppose, that’s in the eye of the beholder.” Authors Lou Dubose and Jake Bernstein will later write that Cheney is using the most primitive form of solipsism to say that torture is not really torture. And Cheney is once again evoking fears of terrorist attacks: “There he was, Dick Cheney, nakedly amoral and driven by fear,” Dubose and Bernstein will write. Cheney continues, “We think it’s important to remember that we are in a war against a group of individuals, a terrorist organization that in fact did slaughter three thousand innocent Americans on 9/11; that it’s important for us to be able to have effective interrogations of those people when we capture them.” The implication, Dubose and Bernstein will write, is that further attacks are inevitable—a matter of when and not if—and an evocation of what author Ron Suskind calls “the one percent doctrine… [i]f there was even a one percent chance of terrorists getting a weapons of mass destruction… the United States must now act as if it was a certainty.” Dubose and Bernstein illustrate how keeping torture as a viable interrogation option plays into this mindset: “The end justified any means necessary. It didn’t matter how effective torture was as long as it provided even a remote chance that it might save American lives.” [Dubose and Bernstein, 2006, pp. 197]
In the midst of a firestorm of criticism about the Bush administration’s warrantless wiretapping program (see December 15, 2005, December 18, 2005, and December 21, 2005), Representative Jane Harman (D-CA), the ranking member of the House Intelligence Committee, issues a statement defending the operation and slamming the New York Times for revealing the program’s existence. Harman says, “I believe the program is essential to US national security, and that its disclosure has damaged critical intelligence capabilities.” [Time, 1/3/2006] Evidence will later show that Harman may be defending the program in return for a quid pro quo from Attorney General Alberto Gonzales, who will quash an FBI investigation into Harman’s alleged improprieties involving Israeli lobbyists charged with felonies (see Late 2005 and April 19, 2009).
Federal appeals court judge J. Michael Luttig, widely considered to be such a reliably conservative supporter of the Bush administration that he is a potential Supreme Court nominee and the author of a highly favorable ruling in the Jose Padilla detention case (see October 9, 2005), is infuriated by the administration’s decision not to charge Padilla with the lurid array of terrorism-related charges it had alleged in Luttig’s courtroom (see November 22, 2005). Luttig believes that he and the rest of the appeals court judges were misled into making a ruling favorable to the administration. Luttig issues a supplementary opinion accusing the White House of manipulating the judicial process to ensure the Supreme Court could not review the precedent his opinion set. The Padilla indictment raises serious questions about the credibility of the government’s accusations against Padilla, and, Luttig writes, leaves “the impression that Padilla may have been held for these years, even justifiably, by mistake.” Luttig and his colleagues take the unusual step of blocking Padilla’s transfer from military custody into the hands of the Justice Department. The move is aimed at attempting to keep the possibility open of a Supreme Court hearing on the Padilla matter, and giving the Court the chance to reverse Luttig’s precedent. The Court will quickly overrule Luttig’s attempt to keep Padilla in military custody and will dismiss Padilla’s appeal because he is no longer classified as an enemy combatant. Author and reporter Charlie Savage will later write: “Just as Luttig had feared, the maneuver ensured that his precedent—written on the assumption that the administration was telling the truth when it said it had good evidence that Padilla was plotting attacks on US soil—was left intact.” Luttig’s move sours his relations with the White House and dooms whatever chance he may have had to be nominated for the high court. He will soon resign from his life-tenured position on the appeals court and take the position of general counsel for Boeing. [Savage, 2007, pp. 200-201]
Without the knowledge of many in Congress, Vice President Cheney and his allies in Congress manage to insert language into the Detainee Treatment Act (DTA—see December 30, 2005) that renders much of the bill nearly worthless. Some of the widest exceptions are inserted without the knowledge of all but a very few Congressmen. One is the exemption for the CIA, which instead of being bound by the interrogation techniques described in the US Army Field Manual, is only forbidden in general to employ “cruel” or “inhuman” methods. Those terms will be defined in light of US constitutional law. Because of the Supreme Court’s decision that cruelty is an act that “shocks the conscience,” Cheney’s chief lawyer, David Addington, has argued that harsh interrogations would be much less shocking if performed on detainees suspected of planning or taking part in mass casualty terrorist attacks. What “shocks the conscience” is to an extent “in the eye of the beholder,” Cheney has already said. [Washington Post, 6/25/2007]
After months of opposition and a recent, clandestine rewriting of the bill (see Before December 30, 2005), President Bush signs the Detainee Treatment Act (DTA) into law, effectively outlawing torture by government and military officials (see December 15, 2005). However, Bush also inserts a signing statement into the record reserving for himself the right to ignore the law under his powers as commander in chief if he judges that torturing a prisoner is in the interest of national security (see December 30, 2005). Signing statements have no legal status, but serve to inform the nation as to how the president interprets a particular law. In this case, Bush writes that he will waive the restrictions on torture if he feels it is necessary to protect national security. “We consider ourselves bound by the prohibition on cruel, unusual, and degrading treatment,” says a senior administration official, but under unusual circumstances—a “ticking time bomb” scenario, for example, where a detainee is believed to have information that could prevent an imminent terrorist attack, Bush’s responsibility to protect the nation will supersede the law. Law professor David Golove is critical of the White House’s position, saying: “The signing statement is saying ‘I will only comply with this law when I want to, and if something arises in the war on terrorism where I think it’s important to torture or engage in cruel, inhuman, and degrading conduct, I have the authority to do so and nothing in this law is going to stop me.’ They don’t want to come out and say it directly because it doesn’t sound very nice, but it’s unmistakable to anyone who has been following what’s going on.” Bush has issued numerous signing statements signaling his intent to flaunt the law in the areas of domestic surveillance, detaining terrorist suspects without due legal process, and previous legislation forbidding the torture of prisoners. Many legal and civil rights organizations believe that Bush’s signing statement is part of his push for a “unitary executive,” where the president has virtually unlimited powers in the areas of foreign policy and national security, and neither Congress nor the courts have the right to limit his powers (see April 30, 1986). Former Justice Department official and law professor Marty Lederman says: “The whole point of the McCain Amendment was to close every loophole. The president has re-opened the loophole by asserting the constitutional authority to act in violation of the statute where it would assist in the war on terrorism.” Human Rights Watch director Elisa Massamino calls the signing statement an “in-your-face affront” to both McCain and to Congress. “The basic civics lesson that there are three co-equal branches of government that provide checks and balances on each other is being fundamentally rejected by this executive branch. Congress is trying to flex its muscle to provide those checks [on detainee abuse], and it’s being told through the signing statement that it’s impotent. It’s quite a radical view.” [Boston Globe, 1/4/2006; Boston Globe, 4/30/2006]
After President Bush signs the Detainee Treatment Act (DTA—see December 30, 2005), his office issues a “signing statement” concerning how he believes the government should enforce the new law. His advisers have spent days composing a statement that declares the administration’s support for the bill. But that statement is never issued. Just before Bush signs the bill, Vice President Cheney’s chief lawyer, David Addington, intercepts the statement “and just literally takes his red pen all the way through it,” a White House official will later recall. Instead, Addington substitutes a single sentence. Bush, writes Addington, would interpret the law “in a manner consistent with the constitutional authority of the president to supervise the unitary executive branch and as commander in chief.” Neither Addington nor Cheney have any qualms about ignoring or superseding what Addington calls “interagency treaties” or language “agreed between cabinet secretaries.” Top officials from the CIA, the Justice Department, State Department, and Defense Department oppose the substitution. The White House’s senior national security lawyer, John Bellinger, says that Congress will view the statement as a “stick in the eye.” Nevertheless, with Cheney’s backing, White House counsel Harriet Miers sends the revised statement to Bush for his signature. Bush signs the statement. [Washington Post, 6/25/2007]
Congress passes a law that says when Congress makes a request, scientific information “prepared by government researchers and scientists shall be transmitted [to Congress] uncensored and without delay.” President Bush contradicts this legal assertion in a signing statement that says he can order researchers to withhold any information from Congress if he decides its disclosure could impair foreign relations, national security, or the workings of the executive branch. [Boston Globe, 4/30/2006]
Retired AT&T technician Mark Klein (see July 7, 2009 and May 2004), angered by the Bush administration’s counterattack against government and media members who have helped to expose its warrantless wiretapping operation (see December 15-31, 2005), decides to go public with a memo he wrote about his own knowledge of the collusion between AT&T and the National Security Agency (NSA) in eavesdropping on American citizens’ communications (see January 16, 2004). He updates the memo with a brief preface, selects eight pages of the 121 pages of AT&T documentation he possesses which he believes gives a good overview of the NSA’s surveillance equipment installation, and includes the two photographs he has taken of the NSA’s “secret room” at the AT&T facility in San Francisco and the Internet research he has done on the Narus STA 6400 equipment the NSA is using to sort the communications being captured and recorded (see Late 2003). Instead of entrusting his newly refurbished memo to the Internet, he uses the PGP (Pretty Good Privacy) security protocol for anticipated dissemination, burns the data onto a CD, and begins searching online for civil liberties groups that might be interested in his work. [Wired News, 5/17/2006; Klein, 2009, pp. 53-55]
KBR subcontractor Stephen Seamans and his business crony, Shabbir Khan of the Saudi Arabian conglomerate Tamimi Global Co, are arrested as part of the ongoing investigation into war profiteering by KBR and its subcontractors (see October 2006 and Beyond). Khan is convicted of lying to federal agents about the kickbacks he provided Seamans (see February 20, 2008, October 2005, October 2002, April 2003, and June 2003), and will serve 51 months in prison. Seamans pleads guilty to charges stemming from the same business deals, and serves a year and a day in prison. Seamans, an Air Force veteran, once taught ethics to junior KBR employees. In December, during his sentencing hearing, he says he is sorry for taking the bribes, “It is not the way that Americans do business.” [Chicago Tribune, 2/20/2008; Chicago Tribune, 2/21/2008]
A Christian group sues a public library for preventing religious organizations from using its facilities to hold worship services. The library says it is following the constitutional separation of church and state. The Justice Department’s civil rights division (CRD) files a “friend of the court” brief on behalf of the Christian group, claiming that the library violated its civil rights. The brief is written by a 2004 political hire to the CRD, a former clerk for conservative Supreme Court Justice Samuel Alito (see October 31, 2005 - February 1, 2006) while he was an appeals court judge and a member of two groups that advocate integrating Catholic religious practices into law and society (see Fall 2002 and After). [Savage, 2007, pp. 298]
Sometime in 2006, the deputy commander of the Defense Department’s Criminal Investigation Task Force (CITF) at Guantanamo tells the Senate Armed Services Committee (see April 21, 2009) that CITF “was troubled with the rationale that techniques used to harden resistance to interrogations [SERE training—see December 2001, January 2002 and After, and July 2002 ] would be the basis for the utilization of techniques to obtain information.” [Huffington Post, 4/21/2009]
Douglas Feith. [Source: Whodidit.org]Law professor Phillippe Sands interviews Douglas Feith, the former undersecretary of defense for policy and one of the key architects of the Iraq invasion. [Vanity Fair, 5/2008] Feith is joining the School of Foreign Service at Georgetown University as a lecturer. [Washington Post, 5/25/2006] Feith discusses his great pride in his part in the administration’s decision to ignore the Geneva Conventions’ restrictions on interrogating prisoners (see February 7, 2002). Feith says that Geneva merely got in the way of the US doing what it needed to do with regards to the detainees. Since al-Qaeda and Taliban operatives did not function under Geneva, he argues, the US did not need to, either. Feith says that between his arguments and the contempt the civilians in the White House and the Pentagon held for the military officers who stood by the Geneva restrictions, the decision was made to set Geneva aside when circumstances warranted. It was never a matter of questioning Geneva’s status as international law, but deciding to whom and in what circumstances the conventions apply.
Catch 22 - Sands writes that according to Feith’s (and eventually the administration’s) rationale: “Geneva did apply to the Taliban, but by Geneva’s own terms Taliban fighters weren’t entitled to POW status, because they hadn’t worn uniforms or insignia. That would still leave the safety net provided by the rules reflected in Common Article 3—but detainees could not rely on this either, on the theory that its provisions applied only to ‘armed conflict not of an international character,’ which the administration interpreted to mean civil war. This was new. In reaching this conclusion, the Bush administration simply abandoned all legal and customary precedent that regards Common Article 3 as a minimal bill of rights for everyone.… I asked Feith, just to be clear: Didn’t the administration’s approach mean that Geneva’s constraints on interrogation couldn’t be invoked by anyone at Guantanamo? ‘Oh yes, sure,’ he shot back. Was that the intended result?, I asked. ‘Absolutely.… That’s the point.‘… As he saw it, either you were a detainee to whom Geneva didn’t apply or you were a detainee to whom Geneva applied but whose rights you couldn’t invoke.”
Impact on Interrogations - When asked about the difference for the purpose of interrogation, Sands will write: “Feith answered with a certain satisfaction, ‘It turns out, none. But that’s the point.’ That indeed was the point. The principled legal arguments were a fig leaf. The real reason for the Geneva decision, as Feith now made explicit, was the desire to interrogate these detainees with as few constraints as possible.” Reflecting on that time, Feith says with obvious relish, “This year I was really a player.” Sands asks Feith if he ever worried that the Geneva decision might have eroded the US’s moral authority. Feith’s response is blunt: “The problem with moral authority [is] people who should know better, like yourself, siding with the _ssholes, to put it crudely.” [Vanity Fair, 5/2008]
Brent Ward, a former US Attorney who now heads the Justice Department’s Obscenity Prosecution Task Force, meets with two senior members of US Attorney Daniel Bogden’s staff (see November 2, 2001) to discuss obscenity prosecutions. Ward’s task force focuses on what are sometimes called “adult obscenity cases,” which do not involve children nor allegations that anyone was coerced into taking part in the activities alleged to be obscene. The activities Ward pursues are strictly consensual acts performed by adults. Because of its small size, it requires the assistance of US Attorneys to pursue and prosecute offenders. Ward’s task force has had significant difficulties getting assistance from many US Attorneys, who have informed Ward that their offices have higher-priority cases than those he is pursuing. Ward often claims that Attorney General John Ashcroft, and later Attorney General Alberto Gonzales, have made “adult obscenity” cases a priority for the department, but at the same time he has registered strong complaints that such prosecutions are not a department priority. Ward receives a similar reception from Bogden’s staffers, who tell him that their office has no interest in pursuing such cases in Nevada. [US Department of Justice, Office of the Inspector General, 9/29/2008]
Retired AT&T technician Mark Klein (see July 7, 2009 and May 2004), angered by the Bush administration’s counterattack against government and media members who have helped to expose its warrantless wiretapping operation (see December 15-31, 2005) and having prepared evidence to prove his knowledge of AT&T’s complicity with the NSA in setting in motion that operation (see December 31, 2005), begins searching for a civil liberties group that might be interested in his work. He quickly determines that two organizations, the Electronic Privacy Information Center (EPIC) and the Electronic Frontier Foundation (EFF), might be his best choices. Reluctant to use the telephone for fear of surveillance, he visits the EPIC offices, where he gives a lawyer a copy of the CD containing his evidence, printouts, and a disk copy of his PGP privacy key for public dissemination. He will later say that the lawyer on site is “polite” but shows little interest. When two weeks go by without any contact from EPIC, he journeys to San Francisco to the EFF offices with his documentation in hand. The reception at EFF is far different from the polite disinterest evidenced at EPIC. Executive director Shari Steele escorts him to speak with senior attorneys Kevin Bankston and Lee Tien. The EFF staffers tell Klein that their organization is already preparing a lawsuit against AT&T for illegally providing its customers’ telephone records to the government (see January 31, 2006), and his evidence will be very useful in the suit. Klein later writes, “I felt a sense of relief, that I had found the right place: a group that wanted to take on this fight.” EFF’s initial lawsuit does not include Klein’s material, but the organization will use it in the court proceedings. [Klein, 2009, pp. 55-56]
Eve Burton, the general counsel for the Hearst Corporation, says the success of the subpoenas and compelled testimony levied against reporters in the Plame Wilson identity leak investigation (see August 7, 2004, August 9, 2004, August 9, 2004, August 12, 2004 and After, August 24, 2004, September 13, 2004, September 15, 2004, October 7, 2004, October 13, 2004, December 2004, February 15, 2005, June 27, 2005, July 1, 2005, July 6, 2005, July 6, 2005, July 11, 2005, July 13, 2005, September 15, 2005, September 29, 2005, September 30, 2005, October 7, 2005, October 12, 2005, November 14, 2005, November 16-17, 2005, and January 20, 2006) has been chilling for reporters. She calls recent developments “troubling,” and continues, “From July to December  we had 42 subpoenas, eight times the number we got in the same six-month period last year.” The language in all the court cases and filings “either invoke[s] the Plame case or they say that now all the rules have changed.” Burton blames the Bush Justice Department in part for the trend, saying: “It is clearly a political decision coming out of the Bush Justice Department to go after the press in this country. In our 42 subpoenas, they will come after anything and everything—B roll at the TV stations, for example. Basic general assignment reporting. A call will come in from the government: ‘I understand you took footage of Joe Blow!’ And the reporter at a station, usually inexperienced, will say, ‘No, we did not take any footage.’ Then we will end up having fights in court with the prosecutor about what constitutes a waiver.” The subpoenas at Hearst, Burton says, involve broadcast stations and newspapers all over the country. “Typically, it is non-published and confidential material” being subpoenaed, she says. “This is the danger of making the press the investigative arm for the government.” Burton and Hearst are fighting every subpoena, no matter how seemingly minor. Burton does not blame special prosecutor Patrick Fitzgerald as much as she blames the increasing lackadaisical attitude of the press itself. “The media has taken its responsibility to fight these subpoenas too loosely,” she says. “When we were fighting every single battle, we were doing better. Then we went through a time when we started to make deals. When you start making deals, you empower people to come after you. It is as simple as that.” [Vanity Fair, 4/2006]
Georgetown law professor Marty Lederman, a former Justice Department official under both the Bush and Clinton administrations, notes the recent signing statement from the White House that essentially states President Bush will ignore the newly authorized Detainee Treatment Act (see December 30, 2005). “So much for the president’s assent to the McCain Amendment” (see December 15, 2005), Lederman writes. Of Bush’s signing statement itself, he writes: “Translation: I reserve the constitutional right to waterboard when it will ‘assist’ in protecting the American people from terrorist attacks.… You didn’t think [Vice President] Cheney and [Cheney’s chief of staff David] Addington (see December 30, 2005) were going to go down quietly, did you?” [Marty Lederman, 1/2/2006; Savage, 2007, pp. 225]
The three Republican senators who co-sponsored the recently passed Detainee Treatment Act prohibiting torture (see December 15, 2005) criticize President Bush for his signing statement indicating that he would not follow the law if he sees fit (see December 30, 2005). Senators John McCain (R-AZ), the primary sponsor of the bill, and John Warner (R-VA) issue a statement rejecting Bush’s signing statement. “We believe the president understands Congress’s intent in passing, by very large majorities, legislation governing the treatment of detainees,” the senators write. “The Congress declined when asked by administration officials to include a presidential waiver of the restrictions included in our legislation. Our committee intends through strict oversight to monitor the administration’s implementation of the new law.” The third co-sponsor, Senator Lindsey Graham (R-SC), says he agrees with the letter, “and would go a little bit further.” Graham says: “I do not believe that any political figure in the country has the ability to set aside any… law of armed conflict that we have adopted or treaties that we have ratified. If we go down that road, it will cause great problems for our troops in future conflicts because [nothing] is to prevent other nations’ leaders from doing the same.” The White House refuses to respond to the senators’ comments. Law professor David Golove, a specialist in executive power issues, says the senators’ statements “mean that the battle lines are drawn” for an escalating fight over the balance of power between the two branches of government. “The president is pointing to his commander in chief power, claiming that it somehow gives him the power to dispense with the law when he’s conducting war,” Golove says. “The senators are saying: ‘Wait a minute, we’ve gone over this. This is a law Congress has passed by very large margins, and you are compelled and bound to comply with it.’” Elisa Massimino of Human Rights First says the senators’ statements should warn military and CIA interrogators that they could be subject to prosecution if they torture or abuse a detainee, regardless of Bush’s signing statement. “That power [to override the law] was explicitly sought by the White House, and it was considered and rejected by the Congress,” she says. “And any US official who relies on legal advice from a government lawyer saying there is a presidential override of a law passed by Congress does so at their peril. Cruel, inhuman, and degrading treatment is illegal.” Golove notes that it is highly unlikely that Attorney General Alberto Gonzales would prosecute anyone for performing actions Bush had authorized. [Boston Globe, 1/5/2006; Savage, 2007, pp. 225-226]
Special counsel Patrick Fitzgerald responds to a classified document request submitted by the Lewis Libby defense team (see December 14, 2005). Fitzgerald disputes lawyer John Cline’s characterization of the Office of Special Counsel as “allied with… the FBI, CIA, and the Office of the Vice President,” and notes that “we are not aligned with the various delineated government agencies other than the” FBI. Fitzgerald writes that his office will provide whatever requested documents it can, but many of the classified documents requested are not in its possession, and he doubts his office will ever be provided with many of them, particularly the extremely sensitive Presidential Daily Briefs. Others of the documents, such as some of Libby’s notes from his time in the Office of the Vice President, have not yet been provided; Fitzgerald says that once his office receives the documents, he will provide them to Libby’s lawyers. [Office of Special Counsel, 1/9/2006 ]
Fourteen law professors and former federal officials send a letter criticizing the Justice Department’s recent legal arguments supporting the legality of the secret NSA surveillance program (see December 19, 2005 and December 21-22, 2005). The letter is signed by law professors Curtis A. Bradley, a former State Department legal advisor; David Cole; Walter Dellinger, a former acting solicitor general and assistant attorney general; Ronald Dworkin; Richard Epstein; Harold Koh, a former assistant secretary of state and a former Justice Department official; Philip B. Heymann, a former deputy attorney general; Martin Lederman, a former Justice Department official; Beth Nolan, a former presidential counsel and a former Justice Department official; William S. Sessions, the former director of the FBI; Geoffrey R. Stone; Kathleen M. Sullivan; Laurence H. Tribe; and William Van Alstyne, a former Justice Department attorney. The letter is couched in legal language, but clearly states that the signees consider the NSA surveillance program entirely illegal: “[T]he program appears on its face to violate existing law.” The signees consider and reject the Justice Department’s argument that Congress “implicitly authorized the NSA program when it enacted the Authorization for Use of Military Force (AUMF) against al-Qaeda” in 2001 (see September 14-18, 2001), writing: “[T]he AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime, where Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first 15 days of war.” The signees also reject the Justice Department’s argument that the president’s “inherent constitutional authority as commander in chief to collect ‘signals intelligence’” is not prohibited by FISA. The signees conclude that the Justice Department has failed “to offer a plausible legal defense of the NSA domestic spying program. If the administration felt that FISA was insufficient, the proper course was to seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA. One of the crucial features of a constitutional democracy is that it is always open to the president—or anyone else—to seek to change the law. But it is also beyond dispute that, in such a democracy, the president cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable.” [Marty Lederman, 1/9/2006; Center for Democracy and Technology, 1/9/2006 ]
Entity Tags: Harold Koh, William S. Sessions, William Van Alstyne, Curtis Bradley, Beth Nolan, Geoffrey Stone, US Department of Justice, Walter Dellinger, Richard Epstein, Martin (“Marty”) Lederman, Laurence Tribe, Kathleen M. Sullivan, Ronald Dworkin, National Security Agency, Philip Heymann, David D. Cole
Timeline Tags: Civil Liberties
John Yoo’s ‘The Powers of War and Peace.’ [Source: University of Maryland]Libertarian law professor Cass Sunstein reviews a recent book by former Bush legal adviser John Yoo, who authored several of the Bush administration’s most controversial legal opinions concerning terrorism and executive power (see September 21, 2001, September 25, 2001, September 25, 2001, October 4, 2001, October 23, 2001, October 23, 2001, November 2, 2001, November 6-10, 2001, November 15, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24, 2002, January 24-26, 2002, March 13, 2002, April 8, 2002, June 27, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and October 11, 2002). Yoo’s book, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11, is a compendium of his pre-9/11 academic writings that landed him his job at the Justice Department’s Office of Legal Counsel. Sunstein notes that Yoo, perhaps more than any other single legal scholar, has reshaped the government’s legal stance on any number of issues. He argued for the president’s unilateral ability to declare war without the approval of Congress, the use of “enhanced interrogation techniques” on suspected terrorists, the withdrawal of essential civil liberties and legal rights from suspected terrorists and enemy collaborators, the right of the administration to electronically eavesdrop on the American citizenry without judicial consent or oversight, the ability to ignore or withdraw from international treaties without congressional approval, and more besides. Sunstein writes: “[T]aken as a whole, the claims of the Bush administration may be properly regarded as an effort to create a distinctive set of constitutional understandings for the post-September 11 era. The White House is attempting to create a kind of 9/11 Constitution. A defining feature of these understandings is a strong commitment to inherent presidential authority over national security, including a belief that in crucial domains the president can act without congressional permission, and indeed cannot be checked by congressional prohibitions.” Yoo is a key figure in that effort. Sunstein calls his work interesting but completely one-sided, simply ignoring “the mountainous counter-evidence” against most of his constitutional claims. “Yoo’s reading would require us to ignore far too many statements by prominent figures in the founding generation,” Sunstein writes. “There are not many issues on which James Madison, Thomas Jefferson, John Marshall, Alexander Hamilton, George Washington, James Wilson, John Adams, and Pierce Butler can be said to agree. Were all of them wrong?” Sunstein concludes: “[W]ith respect to war, there is no reason for a 9/11 Constitution. The old one, read in the light of our traditions, will do just fine.” [New Republic, 1/9/2006; Savage, 2007, pp. 81-82]
During the Senate hearings to confirm conservative jurist Samuel Alito to the Supreme Court, the questioning turns to Alito’s views on the “unitary executive” theory (January 1, 1992). The theory seems to have originated in the Reagan administration’s Justice Department (see April 30, 1986), where Alito worked in the Office of Legal Counsel.
Lawyer Testifies to Unitary Executive - Former Clinton White House counsel Beth Nolan testifies about the theory and its potential for dramatically revamping the power of the presidency: “‘Unitary executive’ is a small phrase with almost limitless import. At the very least, it embodies the concept of presidential control over all executive functions, including those that have traditionally been executed by ‘independent’ agencies and other actors not subject to the president’s direct control.… The phrase is also used to embrace expansive interpretations of the president’s substantive powers, and strong limits on the legislative and judicial branches.” Nolan cites a November 2000 speech by Alito to the Federalist Society, where Alito said in part, “the president is largely impervious to statutory law in the areas of foreign affairs, national security, and Congress is effectively powerless to act as a constraint against presidential aggrandizement in these areas.” [Dean, 2007, pp. 100-106] During the questioning session, Alito denies ever discussing the idea of inherent presidential powers during that speech.
Evasive Answers in Hearings - Senator Richard Durbin (D-IL) says in his opening statement that he intends to press Alito on his support for what Durbin calls “a marginal theory at best… yet one you’ve said you believe.” Durbin notes that the Bush administration has repeatedly cited the theory to justify its most controversial policies and decisions, particularly in conducting its war on terror. Senator Charles Schumer (D-NY) adds: “The president is not a king, free to take any action he chooses without limitation, by law.… In the area of executive power, Judge Alito, you have embraced and endorsed the theory of the unitary executive. Your deferential and absolutist view of separation of powers raises questions. Under this view, in times of war the president would, for instance, seem to have inherent authority to wiretap American citizens without a warrant, to ignore Congressional acts at will, or to take any other action he saw fit under his inherent powers. We need to know, when a president goes too far, will you be a check on his power or will you issue him a blank check to exercise whatever power alone he thinks appropriate?” [Savage, 2007, pp. 271-272] However, Alito refuses to address the issue in the hearings, giving what one journalist calls “either confused or less than candid” answers to questions concerning the subject.
Failure to Recall - During questioning, Alito turns aside inquiries about his avowed support for the unitary executive theory, saying he was merely talking about the idea that a president should have control over lesser executive branch officials, and was not referring to the usurpation of Congressional power by the executive. Further questions elicit nothing but a dry definition of the term. Asked about Supreme Court Justice Clarence Thomas’s stinging dissent in the 2004 Hamdi v. Rumsfeld case (see June 28, 2004), where Thomas wrote that the authors of the Constitution believed a unitary executive was essential to the implementation of US foreign policies, Alito says he does not recall Thomas’s mention of the phrase. Asked about Bush’s signing statement that attempted to invalidate the Detainee Treatment Act (see December 30, 2005), Alito merely recites the definition of a signing statement, and refuses to actually state his position on the issue (see February 6, 1986 and After). Senator Ted Kennedy (D-MA), disturbed by Alito’s refusal to address the subject, says he will vote against him in part because of Alito’s embrace of “the gospel of the unitary executive.” Kennedy cites one of the authors of the theory, law professor Steven Calabresi, one of the founders of the Federalist Society, who, Kennedy says, “acknowledged that, if the concept is implemented, it would produce a radical change in how the government operates.” [Dean, 2007, pp. 100-106; Savage, 2007, pp. 271-274]
ACLU Opposes Alito - The ACLU, for only the third time in its history, formally opposes Alito’s nomination, in part because of Alito’s embrace of the unitary executive theory of the presidency, citing Alito’s “expansive view of executive authority and a limited view of the judicial role in curbing abuses of that authority.” In its 86-year history, the ACLU has only opposed two other Court nominees: William Rehnquist and former Solicitor General Robert Bork. [American Civil Liberties Union, 1/9/2006]
Opposition Fails - However, none of this is effective. Alito is sworn in less than a month later, after Democrats in the Senate fail to successfully mount a filibuster against his confirmation. [CNN, 2/1/2006]
Radical London imam Abu Hamza al-Masri is put on trial in Britain. Before the jury was sworn in, the defense had tried to have the case dismissed on the grounds that Abu Hamza’s notoriety was such that no jury could possibly approach the evidently impartially. However, these arguments were dismissed by the judge, Sir Anthony Hughes.
Charges of Murder, Racial Incitement - The charges include nine counts of soliciting to murder; three for encouraging followers to murder Jews, and six for encouraging them to murder “a person or persons that did not believe in the Islamic faith.” Four other counts are for using “threatening, abusive, or insulting words or behavior with intent to stir up racial hatred.” These charges are based on videos confiscated from Abu Hamza in which, according to authors Sean O’Neill and Daniel McGrory, he rages “against the decadent West, the treacherousness of Jews, the waywardness of women, the accursedness of homosexuals, the corruption of Muslim rulers, and the idleness of ordinary Muslims who had not yet gone to wage war for Allah.” The other two charges deal with his possession of the tapes themselves, and of an 11-volume encyclopedia of jihad.
Encyclopaedia of Jihad - The charge sheet describes the encyclopedia as “a document which contained information of a kind likely to be useful to a person committing or preparing an act of terrorism,” and the prosecutor describes it as “a manual, a blueprint for terrorism.… It contains anything anyone would ever need to know if they wanted to make home-made bombs or explosives.”
Disapproval of Court - Abu Hamza demonstrates his disapproval of the court in two ways: when he takes the witness stand he swears a secular oath, refusing to use the Koran in an infidel court; and he also refuses to stand at the end of each day as the judge departs. Even if he were to be acquitted, he would probably not be released, as deportation proceedings to the US have only been suspended because of the trial. An acquittal would also lead to renewed attempts by the British government to strip him of his British citizenship.
Koran Defense - Abu Hamza’s defense is that he was merely interpreting certain verses from the Koran, which, according to his lawyer, contains “the language of blood and retribution.” He alleges that simply reminding his listeners of these verses cannot be incitement to murder, and that his statements should be viewed against the context of events in the 1990s, when Muslim were under pressure in Kosovo, Kashmir, and Palestine.
Hamza's Testimony - Abu Hamza himself is put on the witness stand for five days from January 19, but, according to authors Sean O’Neill and Daniel McGrory, he treats it “as if it were a pulpit,” reciting Koranic verses and trying to dictate the direction of the discussion. Some of the things he says are damaging to him, for example he thinks the Jews control the media and banks, as well as having a hold over Western political leaders. He admits running a newsletter for Algerian radicals and being in constant telephone contact with their leaders (see Before October 1997), but claims he never actually read the encyclopedia of jihad because he is not a military man. He also says he had no idea that tapes of his sermons were being sold around Britain, nor can he recall the places he has preached up and down the country. He was an informer for MI5 and Special Branch (see Early 1997) and told them about his preaching. They said it was okay, so he simply carried on with it.
Hamza Convicted - He is convicted on 11 counts and acquitted on four, three of soliciting to murder, and one of inciting racial hatred. He gets seven years’ imprisonment for each of the six counts of soliciting murder, 21 months each for the three charges of inciting racial hatred, three years for possessing the tapes, and three and a half years for possessing the encyclopaedia. However, these sentences will run concurrently, meaning he will only be in jail for seven years. US authorities say that after he is released they may request his extradition to the US for crimes he is wanted for there (see May 27, 2004). [O'Neill and McGrory, 2006, pp. 168-169, 296-313]
After Human Rights Watch, an organization which works to end torture of government detainees around the globe, claims that the Bush administration has made a “deliberate policy choice” to abuse detainees at Guantanamo Bay, Defense Secretary Donald Rumsfeld says, “What took place at Guantanamo is a matter of public record today, and the investigations turned up nothing that suggested that there was any policy in the department other than humane treatment.” In 2002, President Bush declared that detainees in US custody should be treated “humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles” of the Geneva Conventions (see January 19, 2002). Shortly after Rumsfeld’s statement, White House press secretary Scott McClellan says that Human Rights Watch has damaged its own credibility by making such claims. [New Yorker, 2/27/2006]
The American Civil Liberties Union releases documents detailing prisoner abuse at US facilities in Iraq, Afghanistan, and Guantanamo. The documents prove the existence of a “Special Access Program,” involving a special operations unit, Task Force 6-26, that has been implicated in numerous abuse incidents in Iraq, and whose operatives used fake names to thwart an Army investigation. ACLU lawyer Amrit Singh says: “These documents confirm that the torture of detainees and its subsequent cover-up was part of a larger clandestine operation, in all likelihood, authorized by senior government officials. Despite mounting evidence of systemic abuse authorized or endorsed from above, however, not a single high-level official has thus far been brought to justice.”
Fake Names, Computer Malfunctions Avoid Accountability - An Army memorandum shows that a prisoner was captured by Task Force 6-26 in Tikrit, Iraq, and subsequently beaten into unconsciousness. The task force members used “fake names,” according to the Army memo, and the claim of a computer malfunction to avoid accountability.
SERE Techniques Used - A heavily redacted memo refers to the use of “Survival, Evasion, Resistance, and Escape” procedures at Guantanamo (see December 10, 2002). Sworn statements from military interrogators and a written “Chronology of Guard/Detainee Issues” show that the Army began receiving reports of prisoner abuse from Afghanistan as early as January 2002. The abuse continued, the documents show, through 2004 and perhaps beyond (see February 12-16, 2004, March 28, 2004, and May 6, 2004). Documents detail incidents where US soldiers poured peroxide and water over an Iraqi prisoner’s open wounds, and fired slingshot missiles at Iraqi children attempting to steal food from the base. [American Civil Liberties Union, 1/12/2006]
In his column for the legal website FindLaw, former Nixon White House counsel John Dean writes: “Rather than veto laws passed by Congress, [George W.] Bush is using his signing statements to effectively nullify them as they relate to the executive branch. These statements, for him, function as directives to executive branch departments and agencies as to how they are to implement the relevant law.… Bush has quietly been using these statements to bolster presidential powers. It is a calculated, systematic scheme that has gone largely unnoticed.… It is as if no law had been passed on the matter at all.… Bush is using signing statements like line item vetoes.” Dean writes that Bush’s signing statement for the Detainee Treatment Act (see December 30, 2005) marks the first time that serious media attention has been focused on the statements. He writes, “Despite the McCain Amendment’s clear anti-torture stance, the military may feel free to use torture anyway, based on the President’s attempt to use a signing statement to wholly undercut the bill.” [FindLaw, 1/13/2006]
A federal appeals court refuses to block the forced redeployment of a California National Guardsman under the Army’s so-called “stop-loss” program (see August 2004). The appeals court finds that the right of the plaintiff, known for purposes of the lawsuit as “John Doe,” were not violated. “[T]he ‘stop-loss’ order extending Doe’s enlistment is a valid exercise of presidential power” authorized by a federal law, and that law neither violates the Fifth Amendment’s requirement of due process of law nor is an improper delegation of congressional power,” writes Circuit Judge Stephen Trott in a unanimous three-judge opinion. Trott also finds that the “stop-loss” order does not conflict with other sections of federal law, and even if it did, it would override such laws. The appeals court upholds a similar finding of a lower court from March 2005. Doe’s attorney, Michael Sorgen, had argued that without a Congressional declaration of war, the president’s power to force soldiers to serve indefinitely violates the Constitutional separation of powers. [Oakland Tribune, 1/14/2006]
Al Gore speaks to the Liberty Coalition and the American Constitution Society. [Source: American Constitution Society]Former Vice President Al Gore delivers a long, impassioned speech on civil liberties and constitutional issues to the Liberty Coalition and the American Constitution Society. Gore joins former Representative Bob Barr (R-GA) in speaking out against the Bush administration’s infringement on American civil liberties. Gore and Barr have what Gore calls a “shared concern that America’s Constitution is in grave danger.”
Patently Illegal Domestic Surveillance - Gore’s speech is sparked by recent revelations that the NSA has been spying on American citizens for years (see December 15, 2005), and in response, the administration “has brazenly declared that it has the unilateral right to continue without regard to the established law enacted by Congress precisely to prevent such abuses.” As the Foreign Intelligence and Surveillance Act (FISA) is perfectly sufficient, there was no need for the Bush administration to circumvent that law. “At present, we still have much to learn about the NSA’s domestic surveillance,” Gore says. “What we do know about this pervasive wiretapping virtually compels the conclusion that the president of the United States has been breaking the law, repeatedly and insistently. A president who breaks the law is a threat to the very structure of our government.” Gore says he agrees with Bush on the threat of terrorism, but disagrees that the US has to “break the law or sacrifice our system of government” to protect itself, as this will make it “weaker and more vulnerable.” In addition, he says, “once violated, the rule of law is itself in danger,” and, “Unless stopped, lawlessness grows, the greater the power of the executive grows, the more difficult it becomes for the other branches to perform their constitutional roles.” It is patently obvious that the Bush administration has broken the law in conducting and approving its warrantless wiretaps, Gore says, regardless of what arguments and defenses administration officials may put forth (see September 12-18, 2001 and Early 2002). So, Gore says, “When President Bush failed to convince Congress to give him the power he wanted when this measure was passed, he secretly assumed that power anyway, as if Congressional authorization was a useless bother. But as [Supreme Court] Justice [Felix] Frankfurter once wrote, ‘To find authority so explicitly withheld is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between the president and the Congress.‘… And the disrespect embodied in these apparent mass violations of the law is part of a larger pattern of seeming indifference to the Constitution that is deeply troubling to millions of Americans in both political parties.”
Illegal Seizure of American Citizens - Gore notes that Bush has declared that he has “a heretofore unrecognized inherent power to seize and imprison any American citizen that he alone determines to be a threat to our nation, and that notwithstanding his American citizenship that person in prison has no right to talk with a lawyer, even if he wants to argue that the president or his appointees have made a mistake and imprisoned the wrong person” (see November 13, 2001 and March 5, 2002). He says: “The president claims that he can imprison that American citizen—any American citizen he chooses—indefinitely, for the rest of his life, without even an arrest warrant, without notifying them of what charges have been filed against them, without even informing their families that they have been imprisoned.” Gore then says: “No such right exists in the America that you and I know and love. It is foreign to our Constitution. It must be rejected.”
Specious Authority to Torture - Neither does the executive branch have the right to authorize torture, Gore says. After citing horrific examples from Guantanamo and Abu Ghraib, he calls it “a shameful exercise of power that overturns a set of principles that you’re nation has observed since General George Washington first enunciated them during our Revolutionary War. They have been observed by every president since then until now. They violate the Geneva Conventions, the International Convention Against Torture, and our own laws against torture.”
Unlawful Kidnapping of Foreign Citizens - The president has no right to have foreign citizens kidnapped from their homes and brought to the US for interrogation and imprisonment, or worse, delivered to other nations for harsh interrogations and torture, says Gore. The closest allies of the US have been shocked by such claims.
No Restraint in the Constitution? - Gore asks whether the president really has such powers under the Constitution and, if so, “are there any acts that can on their face be prohibited?” He quotes the dean of Yale’s law school, Harold Koh, who said, “If the president has commander in chief power to commit torture, he has the power to commit genocide, to sanction slavery, to promote apartheid, to license summary execution.” Gore is “deeply troubl[ed]” that “our normal American safeguards have thus far failed to contain this unprecedented expansion of executive power.” He cites the numerous usage of “signing statements” by Bush that signal his intent “not to comply” with particular legislation (see December 30, 2005). When the Supreme Court struck down Bush’s indefinite detention of “enemy combatants” (see June 28, 2004), “the president then engaged in legal maneuvers designed to prevent the court from providing any meaningful content to the rights of the citizens affected.”
Historical Cycles - Since the founding of America, Gore says, the country has abrogated its citizens’ rights in one circumstance or another, and cites numerous examples. But those abrogations were always rectified to some degree in a repeated cycle of what he calls “excess and regret.” Gore is worried that the country may not be in such a cycle now. Instead, he says, the US may be on a path to permanent, state-sanctioned authoritarianism, with the constitutional safeguards American citizens have come to expect eroded and undermined to the point of irretrievability. Gore specifically cites the administration’s support for the so-called “unitary executive” theory of government, which he says “ought to be more accurately described as the unilateral executive.” That theory “threatens to expand the president’s powers until the contours of the Constitution that the framers actually gave us become obliterated beyond all recognition.”
Stark Authoritarianism - Why are Bush and his top officials doing this? Gore says that “[t]he common denominator seems to be based on an instinct to intimidate and control. The same pattern has characterized the effort to silence dissenting views within the executive branch, to censor information that may be inconsistent with its stated ideological goals, and to demand conformity from all executive branch employees.” Gore continues: “Intellectually, it is possible to carry on this process for an indefinite time. The only check on it is that, sooner or later, a false belief bumps up against solid reality, usually on a battlefield. Two thousand two hundred American soldiers have lost their lives as this false belief bumped into a solid reality.”
Gutting Congress - Though serious damage has been done to the judicial branch, Gore acknowledges, “the most serious damage in our constitutional framework has been to the legislative branch. The sharp decline of Congressional power and autonomy in recent years has been almost as shocking as the efforts by the executive to attain this massive expansion of its power.… [T]he legislative branch of government as a whole, under its current leadership, now operates as if it were entirely subservient to the executive branch.… [T]he whole process is largely controlled by the incumbent president and his political organization” (see February 1, 2004). Gore says each member of Congress, Republican and Democrat, must “uphold your oath of office and defend the Constitution. Stop going along to get along. Start acting like the independent and co-equal branch of American government that you are supposed to be under the Constitution of our country.”
We the People - The American people still, for the moment, have the power to enforce the Constitution, Gore says, quoting former President Dwight Eisenhower, who said, “Any who act as if freedom’s defenses are to be found in suppression and suspicion and fear confess a doctrine that is alien to America.” Gore continues: “Fear drives out reason. Fear suppresses the politics of discourse and opens the door to the politics of destruction.… The founders of our country faced dire threats. If they failed in their endeavors, they would have been hung as traitors. The very existence of our country was at risk. Yet in the teeth of those dangers, they insisted on establishing the full Bill of Rights. Is our Congress today in more danger than were their predecessors when the British army was marching on the Capitol? Is the world more dangerous than when we faced an ideological enemy with tens of thousands of nuclear missiles ready to be launched on a moment’s notice to completely annihilate the country?” [Congressional Quarterly, 1/16/2006; American Constitutional Society, 1/16/2006]
Entity Tags: National Security Agency, Liberty Coalition, US Supreme Court, Harold Koh, George W. Bush, Albert Arnold (“Al”) Gore, Jr., American Constitution Society, Bush administration (43), Convention Against Torture, Felix Frankfurter, George Washington, Geneva Conventions, Foreign Intelligence Surveillance Act, Robert “Bob” Barr
Timeline Tags: Civil Liberties
Controversial neoconservative Michael Ledeen, a consultant for the Bush Defense Department, confirms that he was a contributor to the Italian magazine Panorama. A Panorama reporter, Elisabetta Burba, was one of the first to come across forged documents that purported to prove Iraq had attempted to obtain weapons-grade uranium from Niger (see September 12, 2002 and Afternoon October 7, 2002). Ledeen is widely suspected of playing a role in channeling those forged documents to the CIA (see October 18, 2001, December 9, 2001, and April 3, 2005), though he has always denied doing so. Ledeen confirms that “several years ago” he was a “twice a month” contributor to Panorama, but refuses to give further details. He also denies, again, any involvement in the Niger documents: “I’ve said repeatedly, I have no involvement of any sort with the Niger story, and I have no knowledge of it aside from what has appeared in the press,” he writes. “I have not discussed it with any government person in any country.” Reporter Larisa Alexandrovna notes that Ledeen wrote for Panorama during the time that the magazine received the forgeries from an Italian intelligence peddler, and sent them from the US Embassy in Rome via backchannels to the US State Department. Around that same time, Ledeen also allegedly facilitated an unusual meeting between the head of Italy’s military intelligence agency and Stephen Hadley, the deputy national security adviser in the Bush administration
(see September 9, 2002). Hadley has denied discussing anything about uranium during that meeting. [Raw Story, 1/17/2006]
Journalist and columnist Joshua Micah Marshall says of former Vice President Al Gore’s speech on civil liberties the previous day (see January 16, 2006): “The point Gore makes in his speech that I think is most key is the connection between authoritarianism, official secrecy, and incompetence. The president’s critics are always accusing him of law-breaking or unconstitutional acts and then also berating the incompetence of his governance. And it’s often treated as, well… he’s power-hungry and incompetent to boot! Imagine that! The point though is that they are directly connected. Authoritarianism and secrecy breed incompetence; the two feed on each other. It’s a vicious cycle. Governments with authoritarian tendencies point to what is in fact their own incompetence as the rationale for giving them yet more power.… The basic structure of our Republic really is in danger from a president who militantly insists that he is above the law.” [Dean, 2006, pp. 170-171; Talking Points Memo, 1/17/2006]
The Congressional Research Service (CRS) finds that the Bush administration broke the law when it refused to provide timely and complete briefings to the appropriate members of Congress on the National Security Agency’s domestic wiretapping program. The CRS’s legal analysis concludes that the administration’s limited briefings are “inconsistent with the law.” The CRS performed the analysis at the request of Representative Jane Harman (D-CA), the ranking Democrat on the House Intelligence Committee and a member of the so-called “Gang of Eight,” the eight members of Congress that Bush allows to receive limited information on the NSA program. Harman, who calls the CRS report “a solid piece of work,” wrote to Bush on January 4, 2006, to inform him that she believes the information should be provided to all the members of the House and Senate Intelligence Committees. The briefings, which are intentionally limited in scope, are provided only to eight members of Congress: the Speaker of the House, the House Minority Leader, the Senate Majority and Minority Leaders, and the ranking members of the House and Senate Intelligence Committees. Harman says that an upcoming briefing, scheduled for February 6, should include all members of the intelligence committees. The briefings on the NSA program are held through the office of Vice President Dick Cheney. Though Harman is in agreement with the CRS that the briefings are legally inadequate, House Intelligence Committee chairman Peter Hoekstra (R-MI) has said he believes the briefings are adequate for Congressional oversight.
The CRS finding is based on the requirements of the 1947 National Security Act, that mandates that all of the members of the House and Senate Intelligence Committees be “fully and currently informed” of intelligence activities. The Act says that “covert actions” can only be revealed to the “Gang of Eight,” but, the CRS finds, since the NSA’s domestic surveillance program does not appear to be covert, limiting the briefings to just eight members of Congress “would appear to be inconsistent with the law.” The memo gives several options for the administration to bring itself into compliance with the law, noting, for example, that “[t]he executive branch may assert that the mere discussion of the NSA program generally could expose certain intelligence sources and methods to disclosure.” [New York Times, 1/18/2006; Washington Post, 1/19/2006]
A secret witness in the court-martial of a US soldier charged with murdering an Iraqi prisoner (see November 26, 2003 and October 5, 2004) says that the soldier, Chief Warrant Officer Lewis Welshofer, disregarded interrogation rules so casually that he wrote a memo warning his CIA superiors. The witness testifies in open court, but is shielded behind a curtain to protect his identity. (Defense lawyers accidentally exposed the witness’s ties to the CIA during previous questioning.) The testimony is conducted in public after much legal wrangling, with lawyers from the Colorado Springs Gazette and other media outlets insisting that the witness’s testimony be conducted in open court. The witness says Welshofer, accused of smothering the prisoner, did not seem to care. “He said he was pretty sure they were breaking those rules every day.” Earlier witnesses have testified that the techniques used by Welshofer—which included covering the prisoner’s head with a bag, wrapping electrical cord around the bag, sitting on the man’s chest, and covering his mouth—were forbidden by order of CENTCOM commander Lieutenant General Ricardo Sanchez. Another witness, Chief Warrant Officer Todd Sonnek, a Green Beret assigned to interrogations at the makeshift prison near the Syrian border, says that two days before Mowhoush’s death, he witnessed Welshofer bringing CIA and Iraqi paramilitary fighters in to witness his interrogation of the prisoner, which Welshofer called an implementation of the accepted method called “fear-up,” in which an interrogator attempts to terrify a prisoner into divulging information. Welshofer, along with the CIA officials and Iraqi fighters, questioned Mowhoush, and interrupted the questions with insults and slaps. Instead of cowering in fear, Mowhoush became enraged and broke free from his plastic handcuffs. Sonnek says he wrestled Mowhoush to the ground, and everyone in the room joined in beating and kicking Mowhoush. Sonnek testifies that Mowhoush was able to walk unaided back to his cell; other witnesses have said that it took five soldiers to carry him back to it. [Rocky Mountain News, 1/17/2006; Colorado Springs Gazette, 1/19/2006; Rocky Mountain News, 1/24/2006] Welshofer will be convicted, but will not serve jail time or even be discharged from the Army (see January 24, 2006).
Chief Warrant Officer Lewis Welshofer, testifying in his own defense on charges of murdering an Iraqi prisoner (see November 26, 2003 and October 5, 2004), says that he was unsure of what interrogation techniques were acceptable and what were not. He also says that he was under orders to treat prisoners very harshly. He testifies: “Basically [an August 30, 2003 memo] said that as far as they [senior commanders] knew there were no ROE [Rules of Engagement] for interrogations. They were still struggling with the definition for a detainee. It also said that commanders were tired of us taking casualties and they [told interrogators they] wanted the gloves to come off.… Other than a memo saying that they were to be considered ‘unprivileged combatants’ we received no guidance from them [on the status of detainees].” [Human Rights First, 2/2006] Welshofer will be convicted, but will not serve jail time or even be discharged from the Army (see January 24, 2006).
Lawyers for former vice-presidential chief of staff Lewis Libby, charged with perjury and obstruction of justice in the Valerie Plame Wilson identity leak case (see December 30, 2003 and January 16-23, 2007), say they will subpoena a number of journalists and news organizations. The lawyers say the journalists and news organizations’ notes and records will assist in defending their client. [Wall Street Journal, 1/21/2006; Washington Post, 7/3/2007] The defense also intends to ask for a large number of government documents, many of them classified. They do not say what they intend to ask for, or who they intend to subpoena, but they do alert Judge Reggie Walton that the trial could be significantly delayed during the subpoena and discovery processes. The prosecution is expected to resist some of Libby’s lawyers’ requests. [New York Times, 1/21/2006; Wall Street Journal, 1/21/2006] Criminal defense attorney Jeralyn Merritt, writing for the progressive blog TalkLeft, writes: “The government wants the case to be about whether Libby lied. The defense wants to complicate the case by asking for everything, from reporters’ notes to government agency records, not just about Libby but about Valerie Plame [Wilson] and especially, what others knew about her and from whom and when and where did they learn it. The defense will try to think of everything the government doesn’t want to turn over and it will ask for that. The media companies will battle Libby’s subpoenas, and Libby’s team is probably hoping that the trial court will rule in his favor, which in turn will result in an appeal by the media groups and a long delay of his trial.” [Jeralyn Merritt, 1/20/2006]
Speaking to a cheering crowd of military families in Kansas, President Bush declares that he has no intention of following the laws requiring warrants for wiretaps (see December 15, 2005 and December 18, 2005) because Congress authorized the use of military force against terrorists (AUMF—see September 14-18, 2001), and because he has the power to bypass laws at his own discretion in the interest of national security. The Kansas appearance is part of an election-style “blitz” of appearances around the country designed to build support for the warrantless wiretapping program, and to bolster support for Republicans in the midterm elections (see January 20, 2006). “I’m not a lawyer, but I can tell you what [the AUMF] means,” he says. “It means Congress gave me the authority to use necessary force to protect the American people but it didn’t prescribe the tactics.… If [terrorism suspects] are making phone calls into the United States, we need to know why, to protect you.” [Savage, 2007, pp. 203]
The Lewis Libby defense team files a request to use classified government material as part of Libby’s defense. Legal observers say the Libby request could “bog down” the case for months. The Associated Press reports that the request “puts the Libby case on a dual track: one public, the other secret that often can delay criminal cases from going to trial.” The contents of the filing remain secret, but Libby’s lawyers have implied that they want to reveal the nature of CIA official Valerie Plame Wilson’s work as a CIA operative (see Fall 1985, Fall 1989, Fall 1992 - 1996, and April 2001 and After). Special counsel Patrick Fitzgerald opposes the idea that some of the classified documents would be provided (see January 23, 2006). Fitzgerald has already turned over 850 pages of classified information to Libby’s defense lawyers, and is working to declassify more information. [Associated Press, 1/23/2006]
Special counsel Patrick Fitzgerald responds again to the classified document request from the Lewis Libby defense team (see December 14, 2005, January 9, 2006, and January 23, 2006). Fitzgerald reiterates that his office cannot provide some of the classified White House documents that Libby’s lawyers are requesting, and writes that many of the requested materials have no bearing on the perjury and obstruction charges Libby is facing. He also tells the lawyers that his office may not be able to provide some of the documents requested from the Office of the Vice President because that office seems not to have kept them: “We advise you that we have learned that not all e-mail of the Office of Vice President and the Executive Office of the President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system.” [Office of Special Counsel, 1/9/2006 ]
In a letter to Lewis Libby’s defense lawyers, special counsel Patrick Fitzgerald says that Libby passed classified information from the 2002 National Intelligence Estimate on Iraq (NIE—see October 1, 2002) to reporters. According to Fitzgerald, Libby did so at the behest of his then-boss, Vice President Dick Cheney. Fitzgerald says the information comes from secret grand jury testimony given by Libby (see March 5, 2004 and March 24, 2004). He says Libby testified that he caused at least one other government official to discuss an intelligence estimate with reporters in July 2003. “We also note that it is our understanding that Mr. Libby testified that he was authorized to disclose information about the NIE to the press by his superiors,” Fitzgerald writes. Libby’s lawyer William Jeffress says that regardless of what evidence Fitzgerald may or may not have, his client has no intention of blaming Cheney or other senior White House officials for his actions. Senator Edward Kennedy (D-MA) says Cheney should take responsibility if he indeed authorized Libby to share classified information with reporters. “These charges, if true, represent a new low in the already sordid case of partisan interests being placed above national security,” Kennedy says. “The vice president’s vindictiveness in defending the misguided war in Iraq is obvious. If he used classified information to defend it, he should be prepared to take full responsibility.” Fitzgerald says he intends to use Libby’s grand jury testimony to support evidence pertaining to Libby’s meeting with then-New York Times reporter Judith Miller (see 8:30 a.m. July 8, 2003). [Office of Special Counsel, 1/23/2006 ; Associated Press, 2/10/2006] The press learns of Libby’s testimony days later (see February 2, 2006).
Retired AT&T technician Mark Klein (see December 15-31, 2005 and July 7, 2009), already having contacted a civil liberties group about his knowledge of governmental illegality in eavesdropping on Americans’ telephone and Internet communications (see Early January 2006), contacts Los Angeles Times reporter Joseph Menn about his story. Klein has a packet of evidence showing AT&T’s collusion with the National Security Agency (NSA) in that agency’s surveillance of American citizens. Menn is enthusiastic, and Klein provides him with the full packet of documents he has secured from AT&T, the first time he has shown these documents to anyone (see December 31, 2005). Klein is sure Menn is preparing a “blockbuster” story centering on his evidence and observations. [Klein, 2009, pp. 57]
CWO Lewis Welshofer. [Source: Associated Press / Jerilee Bennett / Salon]Chief Warrant Officer Lewis Welshofer is found guilty of causing the death of an Iraqi prisoner, Major General Abed Hamed Mowhoush (see November 26, 2003). Welshofer, who was originally charged with murder (see October 5, 2004), is not found guilty of murder, but of far lesser charges of negligent homicide and negligent dereliction of duty. The court-martial board sentences Welshofer, who sat on Mowhoush’s chest and smothered him to death, to a reprimand, a fine of $6,000, and 60 days’ restriction. He is not sentenced to jail; neither is he discharged from the Army or even reduced in rank. Soldiers in the courtroom audience applaud the sentence. Welshofer’s attorney, Frank Spinner, says after the sentence, “The court understood our argument that this was a very difficult environment in which the 3rd Armored Cavalry Regiment was operating in November 2003.” Army prosecutor Captain Elana Matt had argued for at least two years’ imprisonment and a dishonorable discharge: “Chief Welshofer should have known better, with 19 years in the Army. You heard some bad things about General Mowhoush, but standards don’t apply just to good victims. They apply to everyone. The reputation of the Army has been dishonored at home and abroad.… You may be tempted to believe that this is the kind of guy the Army needs because he gets the job done. Don’t do it, because that would reduce us to the level of our enemies.” But the court was apparently swayed by Welshofer’s denials that he had done anything that could have led to Mowhoush’s death, and by the argument of Spinner and Welshofer’s military lawyer, Captain Ryan Rosauer, who said that Welshofer was confused by hazy interrogation rules (see January 19, 2006), and was merely doing his duty and trying to save lives. For his part, Welshofer begged the panel to allow him to stay out of jail and in the Army. He said that he had “tried to be a loyal soldier, putting the needs of this institution before my own.” [Rocky Mountain News, 1/24/2006; Colorado Springs Gazette, 1/24/2006] Brigadier General David Irvine, a retired intelligence officer who taught prisoner interrogation and military law for 18 years, and human rights activist David Danzig, will call Welshofer’s sentence a “slap on the wrist,” and write that the verdict “spared the defendant, indicted the prosecutor, and found the law irrelevant” (see January 27, 2006). [Salon, 1/27/2006]
Georgia Thompson. [Source: Truth in Justice (.org)]Georgia Thompson, the supervisor of Wisconsin’s state government travel spending (see 2001), is indicted by a federal grand jury. She is charged with manipulating the bid process on a state travel contract, intending to “cause political advantage for her supervisors” (see October 19, 2005 and October 2005). The indictment also says her actions “were intended to help her job security.” If convicted, Thompson could receive up to 20 years in prison. The grand jury probed a contract Thompson and the state’s purchasing division awarded to Adelman Travel, whose executives have made $20,000 in campaign contributions to Governor Jim Doyle (D-WI). Doyle was not interviewed by the jury and denies any involvement in the contract award process. The jury was convened by US Attorney Steven Biskupic. Investigators say Thompson was not fully cooperative with their probe, and some witnesses have told the jury that Thompson pushed for Adelman to receive the contract over another bidder, Omega World Travel. The travel bidding affair has become something of a political football, with Wisconsin Republicans using it to accuse Doyle of corruption. Milwaukee County Executive Scott Walker (R-WI), expected to challenge Doyle for the governor’s office in 2006, says that Doyle’s administration “condoned unethical and illegal behavior.… Today’s indictment provides further confirmation that the Doyle administration is damaged and must be removed from the Capitol. Jim Doyle’s political connections to this aide are, without question, mentioned as a defining piece of the evidence used to bring forth this indictment.” Another Republican challenger, Representative Mark Green (R-WI), says electing him would help restore the public’s confidence in elected officials: “The Doyle administration’s ethical lapses have cast a cloud over state government that grows darker and darker each day.” Department of Administration Secretary Stephen Bablitch says there is no evidence that Adelman Travel was awarded the contract improperly. [Milwaukee Journal-Sentinel, 1/21/2006; Milwaukee Journal-Sentinel, 1/24/2006; Milwaukee Journal-Sentinel, 1/27/2006]
Lewis Libby’s defense team files a motion with the US District Court to compel the discovery of documents and materials relating to a number of journalists in Libby’s upcoming trial (see January 20, 2006). The filing includes a request for the prosecution to turn over all the information it obtained from reporters about their confidential conversations with Bush administration sources in the course of its investigation. “There can be no information more material to the defense of a perjury case than information tending to show that the alleged false statements are, in fact, true or that they could be the result of mistake or confusion,” the lawyers argue. “Libby is entitled to know what the government knows.” After complaining that the prosecution has refused to provide numerous classified documents the defense has requested (see January 23, 2006), and reiterating its requests for a huge number of White House and CIA documents (see December 14, 2005), the motion asks that documents relating to NBC bureau chief Tim Russert (see July 10 or 11, 2003), Time reporter Matthew Cooper (see 11:00 a.m. July 11, 2003 and 2:24 p.m. July 12, 2003), New York Times reporter Judith Miller (see June 23, 2003, 8:30 a.m. July 8, 2003, and Late Afternoon, July 12, 2003), and Washington Post reporter Bob Woodward (see November 14, 2005) be released to the defense. The defense also indicates its interest in information about NBC’s Andrea Mitchell and the Post’s Walter Pincus. [Washington Post, 1/27/2006; New York Times, 1/27/2006; US District Court for the District of Columbia, 1/26/2009 ] Washington lawyer Charles Tobin says that the Libby defense move was expected, and is a result of the prosecution’s aggressive insistence on deposing journalists and forcing them to reveal confidential sources. “I think we could have expected that, when the prosecutor went on a fishing expedition, that the fish he caught would want to look back in the pail,” Tobin says. “The more this case develops, the further we seem to be getting from the core issues of the indictment—and more into the business of journalism and how news gets put out in this town.” [Washington Post, 1/27/2006]
Brigadier General David Irvine, a retired intelligence officer who taught prisoner interrogation and military law for 18 years, and human rights activist David Danzig write an angry response to the recent court-martial of Army interrogator Lewis Welshofer. Welshofer was found guilty of negligent homicide in causing the death of an Iraqi prisoner (see November 26, 2003 and October 5, 2004), but was given what Irvine and Danzig consider an absurdly light sentence: a reprimand, a small fine, two months’ restriction, and no jail time (see January 24, 2006). Irvine and Danzig believe that the verdict points to a larger problem: “The Welshofer case puts a fine point on a question that has plagued us since Abu Ghraib: Is the Army institutionally capable of dealing with the debacle of torture? The Army and the nation cannot afford to have soldiers draw the obvious lesson from the case’s nonsensical outcome: that in combat, the ends justify the means, and the Geneva Conventions and the McCain anti-torture amendment are subject to change depending on the circumstances or executive whim. Since the Army seems to have no inclination to enforce the principles of command discipline and accountability among the senior ranks, the corrosive effects of US torture in Iraq and elsewhere will continue to haunt any efforts to regain lost stature and credibility in the world.” [Salon, 1/27/2006]
Washington Post reporter William Arkin reveals that the National Security Agency (NSA) is “building a new warning hub and data warehouse” in Aurora, Colorado, just outside of Denver, on the grounds of Buckley Air Force Base. The agency is transferring many key personnel from its Fort Meade, Maryland, headquarters to Aurora. Arkin calls the new NSA facility, named the Aerospace Data Facility (ADF), “massive,” and says he believes it is the hub of the NSA’s data mining operation (see January 16, 2004). According to Government Executive magazine, the NSA’s new data storage facility “will be able to hold the electronic equivalent of the Library of Congress every two days.” While the NSA explains that the new facility is a cost-cutting measure and part of the agency’s post-9/11 decentralization—“This strategy better aligns support to national decision makers and combatant commanders,” an NSA spokesman tells one reporter—Arkin says that the “NSA is aligning its growing domestic eavesdropping operations—what the administration calls ‘terrorist warning’ in its current PR campaign—with military homeland defense organizations, as well as the CIA’s new domestic operations [in] Colorado.… Colorado is now the American epicenter for national domestic spying.” Arkin notes that previous news reports have said that the CIA is planning to move much of its domestic National Resources Division to Aurora as well. He also notes that Colorado is the home of the US military’s Northern Command (NORTHCOM), the military arm responsible for homeland defense. The move also allows the NSA to better coordinate its efforts with private contractors such as Lockheed Martin, Northrup Grumman Mission Systems, and Raytheon, all of which have presences in Colorado. Arkin names all three firms as partners with the NSA in building the ADF. Former senior AT&T technician Mark Klein (see July 7, 2009 and May 2004) will later write, “Over months and years, the database would be huge, ready for data mining whenever the government wants to go after someone.” [Washington Post, 1/31/2006; Klein, 2009, pp. 40-41]
In his State of the Union address, President Bush insists that his authority to wiretap Americans’ phones without warrants (see December 15, 2005 and December 18, 2005) is validated by previous administrations’ actions, saying that “previous presidents have used the same constitutional authority I have.” He fails to note that those presidents authorized warrantless wiretaps before court orders were required for such actions (see June 19, 1972 and 1973). Since the Foreign Intelligence Surveillance Act passed (see 1978), no president except Bush has ever defied the law. Law professor David Cole calls Bush’s assertion of authority “either intentionally misleading or downright false.” Fellow law professor Richard Epstein predicts that the Supreme Court will strike down any such assertions, if it ever addresses the issue. “I find every bit of this legal argument disingenuous,” he says. Even many conservatives refuse to support Bush, with columnist George Will calling his arguments “risible” and a “monarchical doctrine” that is “refuted by the plain text of the Constitution.” David Keene, the chairman of the American Conservative Union, says the legal powers claimed by Bush and his officials can be used to justify anything: “Their argument is extremely dangerous.… The American system was set up on the assumption that you can’t rely on the good will of people with power.” Conservative activist Grover Norquist says flatly, “There is no excuse for violating the rule of law.” And former Justice Department official Bruce Fein says Bush and his officials have “a view that would cause the Founding Fathers to weep. The real conservatives are the ones who treasure the original understanding of the Constitution, and clearly this is inconsistent with the separation of powers.” Even former George H. W. Bush official Brent Scowcroft says that Bush’s interpretation of the Constitution is “fundamentally in error.” [Savage, 2007, pp. 203-204]
Lewis Libby’s lawyers reveal a detailed outline of their planned defense strategy to combat government charges that their client committed perjury and obstructed justice (see October 28, 2005). Libby’s lawyers intend to offer what some call a “memory defense,” a claim that Libby did not deliberately lie to the FBI (see October 14, 2003 and November 26, 2003) or to special counsel Patrick Fitzgerald’s grand jury (see March 5, 2004 and March 24, 2004), but instead was a victim of his own confusion and faulty memory, a condition brought on by his preoccupation with national security matters. Libby’s lawyers have asked for a huge number of highly classified documents (see January 23, 2006 and January 31, 2006) to support his claim of being overworked due to his involvement in the administration’s battle against terrorism and other threats against the nation. The documents, the lawyers claim in a court filing, “are material to establishing that any misstatements he may have made were the result of confusion, mistake, and faulty memory resulting from his immersion in other, more significant matters, rather than deliberate lies.” Libby’s conversations with reporters during the summer of 2003 about CIA official Valerie Plame Wilson (see June 23, 2003, 8:30 a.m. July 8, 2003, July 10 or 11, 2003, 2:24 p.m. July 12, 2003, and Late Afternoon, July 12, 2003) “occurred in the midst of an unending torrent of meetings, briefings, and discussions of far more urgent and sensitive issues, including for example, the detection and prevention of terrorist attacks against the United States,” bringing stability to Iraq, and the spread of nuclear weapons in North Korea and Iran. Libby was “inundated from early in the morning until late at night with the most sensitive national security issues this country faces,” his lawyers say, and his faulty memory about what he did and did not tell reporters about Plame Wilson is insignificant compared to the other matters that were on his mind. [New York Times, 2/1/2006]
Lewis Libby’s defense team reiterates its demand for the disclosure of 10 months’ worth of Presidential Daily Briefings, or PDBs, some of the most highly classified of government documents (see December 14, 2005, January 9, 2006, and January 23, 2006). Defense lawyer John Cline has said he wants the information in part to compensate for what he says is Libby’s imperfect recollection of conversations he had with Vice President Dick Cheney and other government officials regarding CIA official Valerie Plame Wilson (see October 14, 2003, November 26, 2003, March 5, 2004, and March 24, 2004). In documents filed with the court, Libby’s lawyers argue, “Mr. Libby will show that, in the constant rush of more pressing matters, any errors he made in FBI interviews or grand jury testimony, months after the conversations, were the result of confusion, mistake, faulty memory, rather than a willful intent to deceive” (see January 31, 2006). Special prosecutor Patrick Fitzgerald has already informed Cline that his office has only “received a very discrete amount of material relating to PDBs” and “never requested copies of PDBs” themselves, in part because “they are extraordinarily sensitive documents which are usually highly classified.” Furthermore, Fitzgerald wrote that only a relatively small number of the PDB information he has received refers to Joseph Wilson’s trip to Niger (see February 21, 2002-March 4, 2002). Cline is considered an expert in using “graymail” techniques—demanding the broad release of classified documents from the government, and, when those requests are denied, demanding dismissal of charges against his client. He was successful at having the most serious charges dismissed against an earlier client, former Colonel Oliver North, in the Iran-Contra trials (see May-June, 1989). [US District Court for the District of Columbia, 1/31/2006 ; National Journal, 2/6/2006]
Senators Lindsey Graham (R-SC) and Jon Kyl (R-AZ) file an amicus curiae brief with the Supreme Court in the case of Hamdan v. Rumsfeld (see June 30, 2006) saying that because of the passage of the Detainee Treatment Act (DTA—see December 15, 2005), the Court no longer has jurisdiction over the case. Graham and Kyl argue their point by citing the “legislative history” of the DTA, in particular the official statements Graham and Kyl made during debate over the bill, and specifically an “extensive colloquy” between the two that appears in the Congressional Record for December 21, 2005. Graham and Kyl argue that this “colloquy,” which argues that Guantanamo prisoners have no rights under the standard of habeas corpus, stands as evidence that “Congress was aware” that the DTA would strip the Court of jurisdiction over cases that involve Guantanamo detainees. (The Senate included an amendment written by Graham, Kyl, and Carl Levin (D-MI) to the DTA that would reject habeas claims in future court cases, but does not apply retroactively to cases already filed, such as Hamdan.) However, Graham and Kyl never engaged in such a discussion on the floor of the Senate. Instead, they had the text inserted in the Record just before the law passed (see December 30, 2005), meaning that no one in Congress heard their discussion. The brief indicates that the discussion happened during the debate over the bill when it did not. The Record indicates that the discussion that did take place concerning the Hamdan case comes from Democrats, and explicitly state that the DTA has no bearing on the case. C-SPAN video coverage of the debate proves that Graham and Kyl never made those statements, and Senate officials confirm that the discussion was inserted later into the Record. But in their brief, Graham and Kyl state that “the Congressional Record is presumed to reflect live debate except when the statements therein are followed by a bullet… or are underlined.” The Record shows no such formatting, therefore, says the brief, it must have been live. The debate between Graham and Kyl is even written to make it appear as if it had taken place live, with Graham and Kyl answering each other’s questions, Kyl noting that he is nearing the end of his allotted time, and another senator, Sam Brownback (R-KS) apparently attempting to interject a question. Lawyers for the prosecution will strenuously object to the brief, and Justice Department defense lawyers will use the brief as a centerpiece for their argument that the Supreme Court should throw the case out. [US Supreme Court, 2/2006 ; Slate, 3/27/2006; FindLaw, 7/5/2006] Former Nixon White House counsel John Dean will call the brief “a blatant scam,” and will accuse Graham and Kyl of “misle[ading] their Senate colleagues, but also sham[ing] their high offices by trying to deliberately mislead the US Supreme Court.… I have not seen so blatant a ploy, or abuse of power, since Nixon’s reign.… [Graham and Kyl] brazenly attempted to hoodwink the Court regarding the actions of Congress in adopting the DTA.” [FindLaw, 7/5/2006] Their efforts will not be successful, as the Supreme Court will ultimately rule against the Republican position in Hamdan vs. Rumsfeld (see June 30, 2006).
The Navy’s former general counsel, Alberto Mora, now the general counsel for Wal-Mart’s international operations, ends a long, self-imposed silence about his opposition to the military’s advocacy of torture and abuse of terror suspects (see July 7, 2004). Mora tells New Yorker reporter Jane Mayer that the administration’s legal response to the 9/11 attacks was flawed from the outset, triggering a series of subsequent errors and misjudgments that were virtually impossible to correct. In particular, the determination to ignore the Geneva Conventions “was a legal and policy mistake,” but “very few lawyers could argue to the contrary once the decision had been made.” Mora continues, “It seemed odd to me that the actors weren’t more troubled by what they were doing.” Many administration lawyers seemed to be ignorant of history. “I wondered if they were even familiar with the Nuremberg trials—or with the laws of war, or with the Geneva Conventions. They cut many of the experts on those areas out. The State Department [whose lawyers and officials often opposed the use of abusive interrogation tactics] wasn’t just on the back of the bus—it was left off the bus.… [P]eople were afraid that more 9/11s would happen, so getting the information became the overriding objective. But there was a failure to look more broadly at the ramifications. These were enormously hardworking, patriotic individuals. When you put together the pieces, it’s all so sad. To preserve flexibility, they were willing to throw away our values.” [New Yorker, 2/27/2006]
Retired AT&T technician Mark Klein (see December 15-31, 2005 and July 7, 2009), working with a civil liberties group and a reporter to expose the collusion of AT&T and the National Security Agency in pushing the government’s illegal surveillance program (see Early January 2006 and January 23, 2006 and After), searches out appropriate legal counsel. He secures the services of two former assistant US attorneys in San Francisco, Miles Ehrlich and Ismail “Izzy” Ramsey. Ehrlich and Ramsey offer their services pro bono after hearing Klein’s story and examining his evidence (see December 31, 2005). [Klein, 2009, pp. 57]
Retired AT&T technician Mark Klein (see December 15-31, 2005 and July 7, 2009), working with a civil liberties group and a reporter to expose the collusion of AT&T and the National Security Agency in pushing the government’s illegal surveillance program (see Early January 2006 and January 23, 2006 and After), contacts the office of Senator Dianne Feinstein (D-CA) at the advice of Electronic Frontier Foundation lawyer Kevin Bankston. Klein talks to Feinstein’s chief attorney in Washington, DC, Steven Cash. Klein will later write: “I instinctively recoiled at the thought of trying to approach her as my memory of her record told me she was no friend of civil liberties, though she plays one on TV. My instinct was not wrong.” After an initial discussion with Cash, Klein emails him his packet of documentation (see December 31, 2005). On the afternoon of February 3, Cash calls Klein and says he is very interested in his story, though Feinstein’s staff rates the probability of the NSA performing illegal acts at somewhere around “50-50,” according to Klein. Cash promises to get back in touch with Klein on February 6, but fails to do so. Neither Klein nor his attorneys (see Early January 2006) are able to talk to anyone on Feinstein’s staff from here on. Klein later writes: “The silent message was unmistakable: the senator did not want to sully her political skirts by having contact with a whistleblower. And this was a foretaste of her behavior and voting for the next two and a half years. At every turn, she was there pushing for immunity for the telecom companies in the Senate Intelligence and Judiciary Committees; peddling her toothless restatement of the ‘exclusive means’ clause of FISA [the Foreign Intelligence Surveillance Act—see 1978] as a substitute for any confrontation with the president over ongoing illegal NSA spying; ushering former NSA Director Michael Hayden through his nomination for CIA director; and backing Michael Mukasey as a clone replacement for the resigning Attorney General [Alberto] Gonzales. Moreover, this ultimately turned out to be the attitude of virtually the entire Democratic Party leadership, not to mention the Republicans.” Klein will explain that FISA’s “exclusive means” clause states that FISA should be the “exclusive means” for the federal government to conduct surveillance. Congress’s duty under the law was, Klein will state, to enforce the law against President Bush, “who openly flouted the law.” Instead, Klein will claim, Feinstein uses the “exclusive means” clause to protect the Bush administration and the telecom firms. [Klein, 2009, pp. 57-60]
According to sources with firsthand knowledge, alleged perjurer Lewis Libby (see October 28, 2005), the former chief of staff for Vice President Dick Cheney, has given indications of the nature of his defense in his upcoming trial (see January 16-23, 2007). Libby will tell the court that he was authorized by Cheney and other senior Bush administration officials to leak classified information to reporters to build public support for the Iraq invasion and rebut criticism of the war. Prosecutors believe that other White House officials involved in authorizing the leak of classified information may include former Deputy National Security Adviser Stephen Hadley and White House political strategist Karl Rove. Libby has already made this claim to the grand jury investigating the Plame Wilson identity leak (see March 24, 2004). As he told the grand jury, Libby will claim that he was authorized to leak classified information to rebut claims from former ambassador Joseph Wilson, Valerie Plame Wilson’s husband, that the Bush administration had misrepresented intelligence information to make a public case for war. Libby allegedly outed Plame Wilson, a covert CIA agent, as part of the White House’s effort to discredit Wilson. Libby is not charged with the crime of revealing a covert CIA agent, but some of the perjury charges center on his denials of outing Plame Wilson to the FBI and to the grand jury. Libby has admitted revealing Plame Wilson’s identity to reporter Judith Miller (see August 6, 2005); he also revealed classified information to Miller.
Risk of Implicating Cheney - Law professor Dan Richman, a former federal prosecutor, says it is surprising that Libby would use such a defense strategy. “One certainly would not expect Libby, as part of his defense, to claim some sort of clear authorization from Cheney where none existed, because that would clearly risk the government’s calling Cheney to rebut that claim.” Reporter Murray Waas writes that Libby’s defense strategy would further implicate Cheney in the White House’s efforts to discredit and besmirch Wilson’s credibility (see October 1, 2003), and link him to the leaks of classified information and Plame Wilson’s CIA identity. It is already established that Libby learned of Plame Wilson’s CIA status from Cheney and at least three other government officials (see 12:00 p.m. June 11, 2003 and (June 12, 2003)).
Similarities to North's Iran-Contra Defense Strategy - Waas compares Libby’s defense strategy to that of former Colonel Oliver North, charged with a variety of crimes arising from the Iran-Contra scandal (see February 1989). Libby’s defense team includes John Cline, who represented North during his trial. Critics call Cline a “graymail” specialist, who demands the government disclose classified information during a trial, and uses potential refusals to ask for dismissal of charges. Cline won the dismissal of many of the most serious charges against North when Reagan administration officials refused to declassify documents he said were necessary for North’s defense. The special counsel for the Iran-Contra investigation, Lawrence Walsh, believed that Reagan officials refused to declassify the documents because they were sympathetic to North, and trying North on the dismissed charges would have exposed further crimes committed by more senior Reagan officials. It is likely that Cline is using a similar strategy with Libby, according to Waas. Cline has already demanded the disclosure of 10 months’ worth of Presidential Daily Briefings (PDBs), some of the most highly classified documents in government (see January 31, 2006). The Bush administration has routinely denied requests for PDB disclosures. A former Iran-Contra prosecutor says: “It was a backdoor way of shutting us down. It was a cover-up by means of an administrative action, and it was an effective cover-up at that.… The intelligence agencies do not declassify things on the pretext that they are protecting state secrets, but the truth is that we were investigating and prosecuting their own. The same was true for the Reagan administration. Cline was particularly adept at working the system.” Michael Bromwich, a former associate Iran-Contra independent counsel and a former Justice Department inspector general, says it might be more difficult for the Bush administration to use a similar strategy to undercut special counsel Patrick Fitzgerald, because Fitzgerald was appointed by the attorney general, not a panel of judges as were Walsh and Whitewater special prosecutor Kenneth Starr. Both Walsh and Starr alleged that they were impeded by interference from political appointees in the Justice Department. Bromwich’s fellow associate Iran-Contra counsel William Treanor, now the dean of Fordham University’s Law School, agrees: “With Walsh or Starr, the president and his supporters could more easily argue that a prosecutor was overzealous or irresponsible, because there had been a three-judge panel that appointed him,” Treanor says. “With Fitzgerald, you have a prosecutor who was appointed by the deputy attorney general [at the direction of the attorney general]. The administration almost has to stand behind him because this is someone they selected themselves. It is harder to criticize someone you yourself put into play.” [National Journal, 2/6/2006]
'This Is Major' - Progressive author and columnist Arianna Huffington writes: “This proves just how far the White House was willing to go to back up its deceptive claims about why we needed to go to war in Iraq. The great protectors of our country were so concerned about covering their lies they were willing to pass out highly classified information to reporters. And remember—and this is the key—it’s not partisan Democrats making this claim; it’s not Bush-bashing conspiracy theorists, or bloggers reading the Aspen roots (see September 15, 2005). This information is coming from special prosecutor Patrick Fitzgerald as filed in court papers. This is major.” [Huffington Post, 2/9/2006]
Entity Tags: Judith Miller, Valerie Plame Wilson, Joseph C. Wilson, Dan Richman, Bush administration (43), Arianna Huffington, Stephen J. Hadley, Richard (“Dick”) Cheney, William Treanor, Patrick J. Fitzgerald, Lawrence E. Walsh, Kenneth Starr, Karl C. Rove, Lewis (“Scooter”) Libby, Reagan administration, Murray Waas, John Cline, Michael Bromwich
Timeline Tags: Niger Uranium and Plame Outing
Judge Reggie Walton orders a preliminary date set for Lewis Libby’s trial on perjury and obstruction charges (see October 28, 2005). Walton orders the date set for January 8, 2007. The rather lengthy delay is, in part, due to one of Libby’s lawyers, Theodore Wells, having another trial already set for the fall of 2006. Special counsel Patrick Fitzgerald does not oppose the scheduling. [MSNBC, 2/3/2006; FireDogLake, 2/3/2006] “We are very happy with the trial date set by Judge Walton,” Wells says. “The January 8, 2007, date will permit us the time we need to prepare Mr. Libby’s defense. The defense will show that Mr. Libby is totally innocent, that he has not done anything wrong, and he looks forward to being totally vindicated by a jury.” [New York Times, 2/3/2006] Walton originally wanted the trial to happen in September 2006, but it was delayed because of Wells’s scheduling conflicts. [New York Times, 2/3/2006; Washington Note, 2/3/2006]
A Washington Post article repeats assertions by the National Security Agency (NSA) and the Bush administration that even if the NSA is automatically intercepting and storing millions of domestic phone calls and emails (see January 16, 2004), such computerized surveillance does not legally “count” unless it is examined—i.e. read or listened to—by human analysts. As the Post reports, NSA rules state that “‘acquisition’ of content does not take place until a conversation is interrupted and processed ‘into an intelligible form intended for human inspection.’” The Post article says that “nearly all” of the intercepted “overseas” communications from American citizens have been “dismissed” by intelligence officers who found nothing of interest in them. The Post observes: “Fewer than 10 US citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well. That step still requires a warrant from a federal judge, for which the government must supply evidence of probable cause.” And, according to the Post’s “knowledgeable sources,” no more than 5,000 Americans have had their conversations recorded or their emails examined by intelligence analysts. According to Bush administration officials, the Post reports, “[s]urveillance takes place in several stages… the earliest by machine. Computer-controlled systems collect and sift basic information about hundreds of thousands of faxes, emails, and telephone calls into and out of the United States before selecting the ones for scrutiny by human eyes and ears. Successive stages of filtering grow more intrusive as artificial intelligence systems rank voice and data traffic in order of likeliest interest to human analysts. But intelligence officers, who test the computer judgments by listening initially to brief fragments of conversation, ‘wash out’ most of the leads within days or weeks.” People who have helped develop the computer analysis technology say that “it is a triumph for artificial intelligence if a fraction of one percent of the computer-flagged conversations guide human analysts to meaningful leads.”
Controversy over Legality, Usefulness of Surveillance - National security lawyers say that the high proportion of false leads and innocent bystanders being wiretapped contravenes the “reasonable” search provisions of the Fourth Amendment. One government official says the success rate should be closer to 50 percent—one out of every two persons surveilled—and not less than one percent. “Those who devised the surveillance plan, the official says, “knew they could never meet that standard—that’s why they didn’t go through” the court that supervises the Foreign Intelligence Surveillance Act, or FISA. Bush officials refuse to say whether the NSA is discarding the more than 99 percent of communications that it intercepts and deems useless for further analysis. Jeff Jonas, an IBM scientist who invented a data-mining system now in use by both private and governmental entities, says that the kind of pattern-matching data analysis used by the NSA in its surveillance program is neither useful nor accurate. Those analysis techniques that “look at people’s behavior to predict terrorist intent,” he says, “are so far from reaching the level of accuracy that’s necessary that I see them as nothing but civil liberty infringement engines.” Psychology professor James W. Pennebaker disagrees. “Frankly, we’ll probably be wrong 99 percent of the time,” he says, “but one percent is far better than one in 100 million times if you were just guessing at random. And this is where the culture has to make some decisions.” [Washington Post, 2/5/2006]
Former AT&T Technician: AT&T, NSA Violating Fourth Amendment - Former AT&T senior technician Mark Klein (see July 7, 2009 and May 2004) will later take a different view of the issue. In 2009, he will write: “[T]he illegal act happens at the point of seizure by the government, i.e. the splitter—not later, whether or not a medium is involved (see January 16, 2004). That is the whole part of the Fourth Amendment, which demands the government get a warrant to show ‘probable cause’ for seizing things, whatever the government does with it afterwards. What they do later is unknown, and at any rate, their word on anything has proven to be an exercise in prevarication.” [Klein, 2009, pp. 48-49]
Zacarias Moussaoui meets FBI special agent James Fitzgerald in jail. Moussaoui tries to persuade Fitzgerald he is worth more to US intelligence alive than dead and offers information in return for being spared the death penalty. However, Fitzgerald demands full and complete co-operation, not only on what he knows about the plot in which he was involved, but also on everything he knows about al-Qaeda. They fail to reach an agreement. [Los Angeles Times, 3/29/2006]
The White House’s Office of Administration turns over a large number of e-mails from the Office of the President and the Office of the Vice President to the Libby defense lawyers. Special counsel Patrick Fitzgerald, prosecuting former White House official Lewis Libby, had asked for, but not received, the e-mails earlier, and had wondered if they had been deleted or destroyed (see February 15, 2006). According to Libby’s defense team, the e-mails had not been “archived in the normal way,” and took longer to find. Libby’s lawyers tell a Wall Street Journal reporter that there is nothing pertinent to the case in the e-mails. The Journal will report the lawyer’s assertions three weeks later. [Wall Street Journal, 2/28/2006]
Author and columnist David Corn, who was the first member of the media to speculate that Valerie Plame Wilson’s exposure as a CIA official may have been a crime (see July 16, 2003), now speculates that the Lewis Libby defense team may resort to “graymail” to derail Libby’s criminal prosecution (see After October 28, 2005 and January 31, 2006). Corn writes: “[Y]ears ago defense attorneys representing clients connected to the national security establishment—say, a former CIA employee gone bad—figured out a way to squeeze the government in order to win the case: Claim you need access to loads of classified information in order to mount a defense—more than might truly be necessary. Of course, the government is going to put up a fight. It may release some information—but not everything a thorough defense attorney will say is needed. The goal is to get the government to say no to the informant. Then the defense attorney can attempt to convince the judge that without access to this material he or she cannot put up an adequate defense. If the lawyer succeeds, it’s case dismissed. In such situations, the defendant is essentially saying, ‘Prosecute me and I’ll blow whatever government secrets I can.’” Corn notes the defense’s requests for 10 months of highly classified Presidential Daily Briefings (PDBs), a request that may yet be granted (see February 24, 2006) and as such, will set up a battle with the Bush White House, which is almost certain to refuse to release any PDBs. Corn also notes defense requests for information surrounding Plame Wilson’s covert CIA status (see Fall 1992 - 1996 and April 2001 and After), another request that, if granted, will likely be refused by the CIA. Both scenarios are openings for the defense to ask for the dismissal of all charges against their client. And Libby’s team may ask for further classified information, from the State Department, the National Security Council, and the Office of the President. [Nation, 2/6/2006]
Seton Hall law professor Mark Denbeaux, who represents some of the detainees at Guantanamo, releases a report on the status of 517 prisoners currently incarcerated at the detention facility. Denbeaux bases his report on documents released by the US military. Eighty-six percent of the detainees had been sold to the US by either Northern Alliance or Pakistani soldiers in Afghanistan during the height of military operations in 2001, with little hard evidence that the captives sold to the Americans were actually Taliban or al-Qaeda fighters. Military analysts concluded that only 8 percent of the Guantanamo detainees had committed attacks on US forces or its allies, and another 30 percent of the detainees were likely members of the Taliban, al-Qaeda, or other radical Islamist groups before their capture, though they themselves had not fought. Over 60 percent of the detainees—some 310 of the 517 detainees—had no ties to terrorist or radical groups whatsoever. In 2007, reporter and author Charlie Savage will write, “Such facts might have emerged had the detainees been given hearings before a ‘competent tribunal,’ a right guaranteed by the Geneva Conventions and obeyed by the United States in every war up to and including the Gulf War.” [Denbeaux and Denbeaux, 2/7/2006 ; Savage, 2007, pp. 147-148]
Slate reporter John Dickerson, who formerly worked for Time magazine during the initial Plame Wilson identity leak investigation coverage, writes of his knowledge of, and participation in, the investigation, including his knowledge that White House official Karl Rove leaked Valerie Plame Wilson’s CIA identity to Dickerson’s colleague, Matthew Cooper (see 11:00 a.m. July 11, 2003). Dickerson co-wrote a July 2003 Time article with Cooper (see July 17, 2003) that led to Cooper’s subpoena from the Patrick Fitzgerald investigation (see August 9, 2004 and September 13, 2004), his being held in contempt of court (see October 13, 2004), and his eventual testimony (see July 13, 2005). However, Dickerson was never subpoenaed to testify before the Fitzgerald grand jury. He writes that he accompanied the gaggle of reporters with President Bush on his trip to Africa in July 2003, and of the extensive time spent by two “senior administration official[s]” telling him how partisan and unreliable Plame Wilson’s husband Joseph Wilson is, and how he should investigate what “low-level” CIA official sent Wilson to Niger (see July 11, 2003). “I thought I got the point,” Dickerson writes. “He’d been sent by someone around the rank of deputy assistant undersecretary or janitor.” Dickerson goes on to observe, “What struck me was how hard both officials were working to knock down Wilson” (see October 1, 2003). After returning from the trip, Cooper told Dickerson that Rove had informed him of Plame Wilson’s CIA identity. “So, that explained the wink-wink nudge-nudge I was getting about who sent Wilson,” Dickerson writes. Cooper and Dickerson were careful, Dickerson writes, to ensure that other reporters would not learn of Plame Wilson’s CIA identity from either of them. And Dickerson did not want to encroach on Cooper’s arrangement with Rove. Dickerson writes: “At this point the information about Valerie Plame was not the radioactive material it is today. No one knew she might have been a protected agent—and for whatever reason, the possibility didn’t occur to us or anyone else at the time. But it was still newsworthy that the White House was using her to make its case. That Scooter Libby and Karl Rove mentioned Plame to Matt was an example of how they were attempting to undermine Wilson. They were trying to make his trip look like a special family side deal not officially sanctioned by the agency.” [Slate, 2/7/2006; Slate, 2/7/2006] In 2007, former White House press secretary Ari Fleischer will testify that he informed Dickerson of Plame Wilson’s identity (see 8:00 a.m. July 11, 2003), a statement that Dickerson will dispute. [Slate, 1/29/2007]
Entity Tags: Lewis (“Scooter”) Libby, George W. Bush, Bush administration (43), Ari Fleischer, John Dickerson, Karl C. Rove, Patrick J. Fitzgerald, Time magazine, Valerie Plame Wilson, Matthew Cooper, Joseph C. Wilson
Timeline Tags: Niger Uranium and Plame Outing
John Conyers (D-MI), the ranking member of the House Judiciary Committee, sends a letter to President Bush and Vice President Dick Cheney asking about recent revelations that Cheney authorized the leak of classified information to reporters (see January 23, 2006 and February 2, 2006). Conyers writes that such an authorization, if true, would constitute “an abuse of power at best, and may be outright unlawful at worst.… [I]t would appear that neither classified nuclear information nor Valerie Plame’s status as a covert agent or the name of her employer warranted declassification.” Conyers asks whether the report is true, and whether Bush, Cheney, or any of their staff members authorized former Cheney aide Lewis Libby or anyone else “to declassify and leak information to the media relating to the Iraq war and the use of pre-war intelligence on any occasions,” and if so, what the legal basis for such declassifications would be. He also asks if Bush intends to stand by his promise to “take the appropriate action” against anyone who leaked classified information” (see September 30, 2003). [Jeralyn Merritt, 2/10/2006]
Retired AT&T technician Mark Klein (see December 15-31, 2005 and July 7, 2009), working with a civil liberties group about his knowledge of governmental illegality in eavesdropping on Americans’ telephone and Internet communications (see Early January 2006), has contacted Los Angeles Times reporter Joseph Menn about publishing an article expising AT&T’s collusion with the National Security Agency (NSA) to illegally conduct surveillance against American citizens (see January 23, 2006 and After). Klein believed Menn was enthusiastic about exposing AT&T and the NSA in his newspaper. Instead, Klein is shocked to hear from Menn that the Times’s “top guy” is preparing to meet with Director of National Intelligence John Negroponte to discuss any such publication. “I nearly fell down in shock,” Klein will later write. “[T]hey were actually negotiating with the government on whether to publish!” Menn describes himself to Klein as “demoralized,” and says the chances of getting the story published are “grim.” In his seven years at the Times, Menn tells Klein, he has never seen a story “spiked” for “nefarious reasons,” implying that the reason behind the story’s non-publication are “nefarious.” Klein is also dismayed that the Times has now revealed his existence as a whistleblower to Negroponte, and by extension to the US intelligence apparatus. Two days ago, Klein began emailing a New York Times reporter, James Risen, the co-author of a 2005 expose about the NSA’s surveillance program (see December 15, 2005). After hearing from Menn, Klein emails Risen to inform him of the Los Angeles Times’s decision to “consult” with Negroponte, and also of the lack of interest he has received from Senator Dianne Feinstein’s office (see February 1-6, 2006). Risen calls in fellow reporter Eric Lichtblau, his co-author on the 2005 story, and the two begin working on their own story. Klein remains worried about his personal and professional safety, since, as he will write, “[t]he government was on to me, but I did not yet have a published article and the protection that comes with publicity. I had visions, perhaps paranoid in hindsight, of being disappeared in the night, like [nuclear industry whistleblower] Karen Silkwood.” The Los Angeles Times story will drag on until March 29, when Menn will inform Klein that it is officially dead, blocked by Times editor Dean Baquet. Klein will later learn that Baquet had not only been in contact with Negroponte, but with NSA Director Michael Hayden. In 2007, Baquet will tell ABC News reporters that “government pressure played no part in my decision not to run with the story,” and will say that he and managing editor Doug Frantz decided “we did not have a story, that we could not figure out what was going on” with Klein’s documentation (see March 26, 2007). Klein will call Baquet’s explanation an “absurd and flimsy excuse,” and will say it is obvious that the Los Angeles Times “capitulated to government pressure.” [PBS Frontline, 5/15/2007; Klein, 2009, pp. 59-62]
Entity Tags: James Risen, Dean Baquet, AT&T, Dianne Feinstein, Eric Lichtblau, Joseph Menn, Michael Hayden, John Negroponte, Douglas Frantz, National Security Agency, Los Angeles Times, Mark Klein
Timeline Tags: Civil Liberties
The online news site Raw Story publishes an article claiming that the exposure of covert CIA agent Valerie Plame Wilson (see June 13, 2003, June 23, 2003, July 7, 2003, 8:30 a.m. July 8, 2003, July 8, 2003, 11:00 a.m. July 11, 2003, 8:00 a.m. July 11, 2003, Late Afternoon, July 12, 2003, 1:26 p.m. July 12, 2003, July 12, 2003, and July 14, 2003) caused more damage to US national security than has previously been admitted, particularly in the area of containing foreign nuclear proliferation. Editor and reporter Larisa Alexandrovna sources the story from a number of anonymous current and former intelligence officials. Plame Wilson, the officials say, was an integral part of an operation tracking distribution and acquisition of weapons of mass destruction technology to and from Iran. Alexandrovna writes, “Their [the officials’] accounts suggest that Plame [Wilson]‘s outing was more serious than has previously been reported and carries grave implications for US national security and its ability to monitor Iran’s burgeoning nuclear program.” The officials say that while previous reports indicate Plame Wilson may have been involved in monitoring nuclear “black market” activities, particularly those involving Abdul Qadeer Khan (see Late February 1999), her real focus was Iran, though her team would have come into contact with Khan’s black market network during the course of its work on Iran’s nuclear program. Khan’s network is believed to have been the primary source of Iran’s nuclear weapons efforts. The officials refuse to identify the specifics of Plame Wilson’s work, but do say that her exposure resulted in “severe” damage to her team and significantly hampered the CIA’s ability to monitor nuclear proliferation. [Raw Story, 2/13/2006] The officials also say that the CIA conducted an “aggressive” in-house assessment of the damage caused by Plame Wilson’s exposure shortly after the White House leaked her identity to the press, and found the damage done by the leak “severe” (see Before September 16, 2003).
The media learns that Attorney General Alberto Gonzales has withheld White House e-mails from special prosecutor Patrick Fitzgerald. If revealed, those e-mails may shed light on which White House officials were involved in leaking the identity of covert CIA agent Valerie Plame Wilson to a number of reporters. Sources close to the Fitzgerald investigation team say that the e-mails may have the potential to incriminate Vice President Dick Cheney, his aides, and/or other White House officials involved in leaking Plame Wilson’s identity to the press. The sources also say that Cheney, in his 2004 testimony before Fitzgerald’s prosecutors, may have lied when he said that neither he nor any of his aides were involved in the Plame Wilson leak, and the e-mails could prove that Cheney was dishonest in his testimony. The e-mails Gonzales is withholding contain references to Plame Wilson’s identity and CIA status, and information regarding the inability to find WMD in Iraq. They also contain suggestions as to how White House officials could respond to increasingly negative criticisms about their conduct of the war from Plame Wilson’s husband, Joseph Wilson. Gonzales, who was the senior White House counsel at the time of the leak, coordinated the White House’s response to the FBI’s investigation of the leak (see May 8, 2004); he and other White House attorneys spent two weeks screening e-mails turned over to his office by some 2,000 staffers. Gonzales told Fitzgerald in 2005 that he had no intention of turning over the e-mails, because they contained classified intelligence information about Iraq in addition to minor references to Plame Wilson. The sources say Gonzales cited “executive privilege” and “national security concerns” as the reasons for not turning over some of the correspondence. Fitzgerald believes that other e-mails were intentionally “shredded” or deleted by either Gonzales or other White House officials. Fitzgerald has informed the judge presiding over the investigation that e-mails from the offices of Cheney and President Bush have not been saved. In a letter to the defense team of former Cheney chief of staff Lewis Libby, Fitzgerald has written, “In an abundance of caution, we advise you that we have learned that not all e-mail of the Office of the Vice President and the Executive Office of the President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system.” [Truthout (.org), 2/15/2006] The Wall Street Journal will write that the e-mails have been in the Libby team’s possession since February 6 (see February 6, 2006).
Retired AT&T technician Mark Klein (see December 15-31, 2005 and July 7, 2009), working with a civil liberties group about his knowledge of governmental illegality in eavesdropping on Americans’ telephone and Internet communications (see Early January 2006), is concerned that the New York Times will not publish a story featuring his allegations and evidence against AT&T and the National Security Agency (NSA). Klein was “outed” by Los Angeles Times editor Dean Baquet to the US intelligence apparatus after Klein approached a Los Angeles Times reporter about his story, and Klein is concerned that he lacks the protection that publicity would afford him (see February 11, 2006 and After). New York Times reporters James Risen and Eric Lichtblau fail to contact Klein for weeks during this time period, leaving Klein to wonder if the New York Times, like the Los Angeles Times before it, will fail to publish his story. Klein emails Risen and Lichtblau his full set of AT&T documents proving his allegations in mid-February (see December 31, 2005). Meanwhile, he sends emails containing selected documents to a number of Congressional members. Only one, House Representative Pete Stark (D-CA), responds, promising that he will present Klein’s information to the House Judiciary Committee, but, as Klein will write, “I never heard anything from the Judiciary Committee, or any other committee for that matter.” [PBS Frontline, 5/15/2007; Klein, 2009, pp. 63]
Entity Tags: James Risen, Dean Baquet, AT&T, Eric Lichtblau, House Judiciary Committee, Los Angeles Times, Mark Klein, New York Times, National Security Agency, Fortney Hillman (“Pete”) Stark, Jr
Timeline Tags: Civil Liberties
Special counsel Patrick Fitzgerald asks Judge Reggie Walton not to grant the request of the Lewis Libby defense team for documents pertaining to reporters’ conversations with White House officials (see January 26, 2006). Libby’s lawyers have already received over 11,000 pages in classified and unclassified documents, says Fitzgerald, including materials from the Office of the Vice President. The defense is also seeking a raft of classified information from the White House and the CIA (see December 14, 2005, January 9, 2006, January 20, 2006, January 23, 2006, January 23, 2006, January 31, 2006, and (February 16, 2006)). “The government has produced all documents and information to which defendant is entitled,” Fitzgerald writes in a court filing. “Requiring the production of the additional materials sought by defendant would unreasonably encroach on legitimate interests of national security, grand jury secrecy, and executive privilege.” [Bloomberg, 2/17/2006]
Special counsel Patrick Fitzgerald makes a filing to the court in opposition to the Lewis Libby defense team’s requests for highly classified information (see December 14, 2005, January 9, 2006, January 23, 2006, January 31, 2006, and February 21, 2006), requests that some have characterized as an attempt to “graymail” the government (see After October 28, 2005, January 31, 2006, and February 6, 2006) by threatening to reveal national security secrets. In his brief, Fitzgerald calls the defense request for almost 11 months of Presidential Daily Briefings (PDBs) “breathtaking” and unnecessary for a perjury defense. “The defendant’s effort to make history in this case by seeking 277 PDBs in discovery—for the sole purpose of showing that he was ‘preoccupied’ with other matters when he gave testimony to the grand jury—is a transparent effort at ‘greymail.’” [Nation, 2/17/2006]
A Bush administration official sends an e-mail to senior members of the Defense Department’s Transportation Command, including General Norton Schwartz, who later becomes the Air Force chief of staff. The e-mail recommends that a set of prisoners slated for release from Guantanamo be detained longer for fear of negative press coverage. The e-mail will be released three years later as part of an American Civil Liberties Union (ACLU) Freedom of Information Act (FOIA) request (see February 12, 2009). The name of the author of the message will be redacted from the document. It reads in part: “We may need to definitely think about checking with Southcom to see if we can hold off on return flights for 45 days or so until things die down. Otherwise we are likely to have hero’s welcomes awaiting the detainees when they arrive.… It would probably be preferable if we could deliver these detainees in something smaller and more discreet.” The e-mail forwards correspondence entitled “US Getting Creamed on Human Rights,” which cites international news coverage of UN reports on conditions at Guantanamo. The e-mail cites that press coverage, along with “lingering interest in Abu Ghraib photos,” all of which “adds up to the US taking a big hit on the issues of human rights and respect for the rule of law.” In 2009, reporter Liliana Segura will observe: “The line fits neatly with the rest of what we know about the Bush administration’s philosophy: that perceptions of abuse were worth worrying about; the abuse itself? Not so much.” Gitanjali Gutierrez, a lawyer with the Center for Constitutional Rights, will add: “It is astonishing that the government may have delayed releasing men from Guantanamo in order to avoid bad press. Proposing to hold men for a month and a half after they were deemed releasable is inexcusable. The Obama administration should avoid repeating this injustice and release the innocent individuals with all due haste.” [Center for Constitutional Rights, 2/12/2009; AlterNet, 2/13/2009]
Shortly after the press learns that White House counsel Alberto Gonzales has withheld White House e-mails from the Fitzgerald investigation (see February 15, 2006), the White House turns over some 250 pages of e-mails from Vice President Dick Cheney’s office. The e-mails were sent during the spring of 2003 by senior Cheney aides, and pertain to the leak of CIA official Valerie Plame Wilson’s covert identity to the press. Special counsel Patrick Fitzgerald reveals the “discovery” of the missing e-mails in court. According to reporter Jason Leopold, the contents of the e-mails are “explosive, and may prove that Cheney played an active role in the effort to discredit Plame Wilson’s husband, former ambassador Joseph Wilson, a vocal critic of the Bush administration’s pre-war Iraq intelligence.” According to Leopold’s sources, the e-mails could also prove that Cheney lied to FBI investigators when he was interviewed about the leak in early 2004 (see May 8, 2004). Cheney told investigators that he knew nothing of any effort to discredit Wilson or to expose his wife’s undercover status to reporters. However, the e-mails indicate that Cheney led an effort to discredit Wilson that began in March 2003, and used the CIA to dig up information on Wilson that could be used to dirty his reputation in the press (see March 9, 2003 and After). Some of the e-mails refer to Plame Wilson’s identity and CIA status, and reference the US military’s inability to find weapons of mass destruction in Iraq. The e-mails also contain suggestions from Cheney’s senior aides, and from staffers of the National Security Council, as to how the White House should respond to Wilson’s criticisms of the administration’s pre-war Iraq intelligence. Fitzgerald has been attempting to secure the “missing” e-mails since late January (see January 23, 2006). Gonzales is still refusing to turn over some of the e-mails, citing “executive privilege” and “national security” concerns. [Truthout (.org), 2/24/2006; Associated Press, 2/27/2006] On February 28, the Wall Street Journal will write that the e-mails have been in the Libby team’s possession since February 6, and that they contain nothing pertinent to the trial (see February 6, 2006).
Senator John D. Rockefeller (D-WV), the ranking minority member of the Senate Intelligence Committee, writes a letter to John Negroponte, the director of national intelligence, regarding his belief that author and Washington Post reporter Bob Woodward revealed classified and potentially damaging information in his 2004 book, Plan of Attack. Rockefeller writes, “According to [Woodward’s] account, he was provided information related to sources and methods, extremely sensitive covert actions, and foreign intelligence liaison services.” Rockefeller is as yet unaware that Lewis “Scooter” Libby, the then-chief of staff to Vice President Dick Cheney, was authorized by President Bush to reveal such information (see April 5, 2006). Two former government officials confirm to reporter Murray Waas that Woodward’s book contains information that has not been made public. The information was provided by the White House in an attempt to bolster its argument that Iraq had WMD, and most of it was later found unreliable. One former senior official says, “The information was never presented to the public because it was bunk in the first place.” Rockefeller writes: “I [previously] wrote both former Director of Central Intelligence (DCI) George Tenet and Acting DCI John McLaughlin seeking to determine what steps were being taken to address the appalling disclosures in [Woodward’s book]. The only response that I received was to indicate that the leaks had been authorized by the administration.” [National Journal, 4/6/2006]
Web site header graphic for the Libby Legal Defense Trust’s site, reduced in size. [Source: Libby Legal Defense Trust] (click image to enlarge)Conservative media outlets such as the Web site Human Events announce the launch of scooterlibby.com, a Web site that coordinates and markets the fundraising efforts of the Lewis Libby defense fund (see After October 28, 2005). (The site also operates under the URL scooterlibby.org.) The chairman of the Libby Legal Defense Trust, Republican fundraiser and former ambassador Mel Sembler, writes on the front page of the site: “Since September 11, 2001, Lewis ‘Scooter’ Libby has been one of the unsung heroes in fighting the war on terror, working diligently and making countless contributions on some of the most critical life and death issues that our country has faced. For the past five years, Scooter Libby served selflessly as an assistant to President Bush and as the chief of staff and national security adviser to Vice President Cheney. But Scooter’s great service to our country has now been cut short, and his good name attacked. A distinguished group of friends, business leaders, and former government officials have joined the Libby Legal Defense Trust to help Scooter defray his legal costs from the recent charges. We hope you will join us in supporting this effort.” The site features an endorsement from Dick Cheney calling Libby “one of the most capable and talented individuals I have ever known.” [Human Events, 2/21/2006; Jeralyn Merritt, 2/21/2006; Libby Legal Defense Trust, 2/21/2006] Sembler says the group wants to raise $5 million for Libby’s defense. The group, staffed with veteran fundraisers who worked for the 2004 Bush-Cheney re-election campaign and other high-profile Republican campaigns, is believed to have raised almost half of that amount already. [Washington Post, 2/22/2006] In upcoming days, Slate editor John Dickerson will publish an analysis of the site’s efforts, calling it an attempt to “humanize” Libby and portray him as a selfless, innocent victim of government persecution (see February 27, 2006).
The Lewis Libby defense team files a rejoinder to the special counsel’s request that the team not be granted access to classified White House documents (see February 16, 2006). Libby’s lawyers call the request “entirely unconvincing” and based on “phantom concerns” over executive privilege, “graymail” (see After October 28, 2005, January 31, 2006, February 6, 2006, and (February 16, 2006)), and “illusory grand jury secrecy interests.” The motion requests that all documents previously requested be provided to the defense by the special counsel. [US District Court for the District of Columbia, 2/21/2006 ; Jurist, 2/22/2006] “Denying Mr. Libby’s requests because they pertain to ‘extraordinarily sensitive’ documents would have the effect of penalizing Mr. Libby for serving in a position that required him to address urgent national security matters every day,” Libby’s lawyers write. Responding to the accusations of “graymail,” they write, “The government’s ‘greymail’ accusation is not only false, but insulting.” [Associated Press, 2/22/2006] One of Libby’s lawyers, Theodore Wells, files a separate affidavit in support of the team’s motion. [US District Court for the District of Columbia, 2/21/2006 ]
The American Civil Liberties Union (ACLU) releases Defense Department documents showing that senior Pentagon officials approved harsh interrogation techniques that FBI agents termed abusive, ineffective, and unlawful. “We now possess overwhelming evidence that political and military leaders endorsed interrogation methods that violate both domestic and international law,” according to ACLU lawyer Jameel Jaffer. “It is entirely unacceptable that no senior official has been held accountable.” One document shows that FBI personnel at Guantanamo questioned harsh methods being used by military interrogators (see May 30, 2003). Another shows that senior Pentagon officials approved interrogation methods considered abusive by FBI agents (see May 5, 2004). The ACLU says that, combined with a memo from Navy general counsel Alberto Mora (see January 15-22, 2003), evidence “show[s] conclusively that Pentagon officials at the highest levels authorized the abuse of prisoners and persisted in their endorsement of unlawful interrogation methods even after FBI and Navy personnel objected to those methods orally and in writing.” The documents released by the ACLU also show that interrogators from the Department of Homeland Security identified themselves as FBI agents while using harsh methods against detainees. One FBI memo observed, “The next time a real agent tries to talk to that guy, you can imagine the result.” The documents also show that while FBI agents expressed concern about the harsh interrogation methods being employed by military and other interrogators, the FBI itself did little to counter such tactics (see January 24, 2004). [American Civil Liberties Union, 2/23/2006]
Lawyers for indicted former White House official Lewis Libby (see October 28, 2005) move for the charges against their client to be dismissed, on the ground that special counsel Patrick Fitzgerald lacks the constitutional authority to bring such charges. The lawyers argue that Fitzgerald was improperly appointed by the Justice Department instead of by Congress (see December 30, 2003), and therefore no charges brought or evidence gathered by him and his office have any standing in the court. “Those constitutional and statutory provisions have been violated in this case,” Libby’s lawyers argue. Most legal observers doubt the motion will be granted. Former independent counsel Scott Fredericksen, who investigated Reagan-era scandals at the Department of Housing and Urban Development, says, “I think it’s a nice try, but I don’t give it much chance of success.” Legal experts say the Supreme Court ruled against a similar claim in 1998, in Morrison v. Olson. Government regulations clearly give the Justice Department the authority to appoint a special counsel when conflicts of interest within the department, or within the White House, make the normal procedures questionable. “The regulations that created the special counsel are safe from attack,” Fredericksen says. [Associated Press, 2/23/2006; US District Court for the District of Columbia, 2/23/2006 ; Washington Post, 2/24/2006]
Electronic Frontier Foundation (EFF) lawyer Kevin Bankston asks AT&T whistleblower Mark Klein (see December 15-31, 2005 and July 7, 2009) to submit a legal declaration as to his knowledge of AT&T’s collusion with the National Security Agency (NSA) in its illegal domestic wiretapping program. Klein is working with the EFF in that organization’s lawsuit against AT&T (see Early January 2006 and January 31, 2006). Five days later, Klein submits his evidence of AT&T’s actions (see December 31, 2005) to Bankston to be used in the lawsuit. Klein will work with his lawyers to craft the declaration, and will have it in final form by late March. [Klein, 2009, pp. 63-64]
In a court hearing, special counsel Patrick Fitzgerald argues that Valerie Plame Wilson’s identity as a covert CIA official (see Fall 1992 - 1996) is irrelevant to the perjury charges pending against former White House official Lewis Libby (see October 28, 2005). “We’re trying a perjury case,” Fitzgerald tells Judge Reggie Walton. Even if Plame Wilson had never worked for the CIA at all, Fitzgerald continues, even if she had been simply mistaken for a CIA agent, the charges against Libby would still stand. Furthermore, Fitzgerald tells Walton, he does not intend to offer “any proof of actual damage” caused by the disclosure of Plame Wilson’s identity. Libby’s defense lawyer Theodore Wells objects to Fitzgerald’s statement, saying that in the actual trial, Fitzgerald will likely tell the jury that the leak of Plame Wilson’s identity either damaged or could have damaged the CIA’s ability to gather critical intelligence (see Before September 16, 2003, October 3, 2003, October 11, 2003, October 22-24, 2003, October 23-24, 2003, and February 13, 2006). Wells says he may call either Plame Wilson, her husband Joseph Wilson (see February 21, 2002-March 4, 2002), or both to testify in the case, as well as CIA employees. “I might call Ms. Wilson” to testify, he says. “I might call her husband. There are going to be CIA employees as witnesses in this.… Was she just classified because some bureaucracy didn’t declassify her five years ago when they should have?” Wells asks if Plame Wilson may have been “classified based on a piece of paper.” One anonymous source tells a National Review columnist: “She was definitely undercover by agency standards at the time in question. That was a classified bit of information, and is sufficient as far as the agency is concerned to bring it to the attention of the Justice Department. You can argue whether she should have been, but as far as the agency was concerned it was classified.” [National Review, 2/27/2006] In his statement to the court, Fitzgerald notes: “[T]he issue is whether [Libby] knowingly lied or not. And if there is information about actual damage, whatever was caused or not caused that isn’t in his mind, it is not a defense. If she turned out to be a postal driver mistaken for a CIA employee, it’s not a defense if you lie in a grand jury under oath about what you said and you told people, ‘I didn’t know he had a wife.’ That is what this case is about. It is about perjury, if he knowingly lied or not.” [Truthout (.org), 3/18/2006]
The New York Sun prints an editorial supporting the motion by Lewis Libby to dismiss all charges against him (see February 23, 2006). The Sun agrees with the defense lawyers’ argument that special counsel Patrick Fitzgerald was appointed illictly by the Department of Justice, and calls him “an illegal, extra-constitutional prosecutor.” The Sun cites a statement made by Alexander Hamilton in the Federalist Papers, and a letter written by Roger Sherman, a signer of the Declaration of Independence, opposing the power of the executive branch to appoint officials without Congressional approval. Fitzgerald operates “unchecked,” the Sun states, and entirely outside the law. The Sun also renews its call (see December 8, 2005) for its readers to donate to the Libby defense fund (see February 21, 2006). [New York Sun, 2/24/2006]
Judge Reggie Walton rules that the defense team for indicted former White House official Lewis Libby (see October 28, 2005) will be provided copies of notes Libby took in 2003 and 2004, while he served as chief of staff to Vice President Dick Cheney. Libby’s lawyers have argued that their client needs these notes to prove that he did not lie to federal investigators about his involvement in the leak of covert CIA official Valerie Plame Wilson’s identity (see June 23, 2003, 8:30 a.m. July 8, 2003, 2:24 p.m. July 12, 2003, and Late Afternoon, July 12, 2003). Walton puts off a decision as to whether Libby can have copies of other materials, including copies of the highly classified Presidential Daily Briefs (PDBs—see January 31, 2006). Walton writes that he fears Libby’s request may “sabotage” the case because he expects President Bush to invoke executive privilege and refuse to turn over the PDBs. “The vice president—his boss—said these are the family jewels,” Walton notes, referring to previous descriptions of the PDBs by Cheney. “If the executive branch says, ‘This is too important to the welfare of the nation and we’re not going to comply,’ the criminal prosecution goes away.” Walton also denies a defense request to stop special counsel Patrick Fitzgerald from filing information for Walton’s review, such as strategy memos and classified information Fitzgerald wants withheld from Libby’s lawyers. Walton says he needs to see what Fitzgerald is withholding from the defense to ensure the prosecutor is making the correct call. [Jurist, 2/25/2006; Associated Press, 2/27/2006]
US District Judge Reggie Walton, presiding over the perjury and obstruction of justice trial of former White House aide Lewis “Scooter” Libby, rules that Libby is not entitled to know the identity of an anonymous administration official who revealed information about undercover CIA agent Valerie Plame Wilson to journalists. Walton rules that special counsel Patrick Fitzgerald can keep the other government official’s identity secret because that person has not been charged with a crime and has a right to privacy. [US District Court for the District of Columbia, 2/24/2006 ; Associated Press, 2/27/2006; Washington Post, 7/3/2007] It later becomes evident that Walton is protecting the identity of former Deputy Secretary of State Richard Armitage (see June 13, 2003, July 8, 2003, and March 14, 2006). In related filings, Libby’s lawyers continue to press for the release of classified documents, citing them as necessary for Libby’s “memory defense” (see January 31, 2006). [US District Court for the District of Columbia, 2/23/2006 ; US District Court for the District of Columbia, 2/24/2006 ]
Lawyers for indicted former White House official Lewis Libby (see October 28, 2005) say they intend to subpoena news reporters and organizations in defense of their client. Judge Reggie Walton, presiding over the upcoming trial, has yet to rule whether he will allow such subpoenas. Libby’s lawyers say they want to question journalists who have testified that they were the recipients of classified information from Libby (see June 23, 2003, 8:30 a.m. July 8, 2003, 2:24 p.m. July 12, 2003, and Late Afternoon, July 12, 2003). Walton has set a deadline of April 7, 2006 for any subpoenaed journalists and news organizations to respond as to their intentions to testify in Libby’s trial. [NewsMax, 2/25/2006]
Judge Reggie Walton issues an order significantly curtailing the Lewis Libby defense team’s requests for highly classified White House materials (see After October 28, 2005, January 31, 2006, February 6, 2006, (February 16, 2006), and February 21, 2006). Walton’s orders indicate that he may accept the defense team’s requests for some, but not all, of the highly classified Presidential Daily Briefings (PDBs), requests that have become a source of conflict between the defense and the prosecution. “Upon closer reflection, it is becoming apparent to this court that what is possibly material to the defendant’s ability to develop his defense” is not every detail from the briefings that Libby received as Cheney’s national security adviser, Walton says. The defense says it needs the PDBs to establish how busy Libby was with national security matters and therefore bolster their expected defense of Libby’s failure to remember his conversations about outed CIA official Valerie Plame Wilson when he allegedly lied to the FBI and to the grand jury (Libby’s so-called “memory defense”—see October 14, 2003, November 26, 2003, March 5, 2004, March 24, 2004, and January 31, 2006). General descriptions of the briefings from specific time periods might be sufficient, Walton continues. Walton also asks the CIA to tell him what, if any, documents the Libby team has requested from it might be available. Washington attorney Lawrence Barcella says Walton’s efforts would hamper Libby’s defense strategy. “What makes the defense so viable is for him to show the enormity of what he dealt with on a daily basis,” Barcella says. “If you sanitize it just so you can get past the classified information issue, you significantly lessen the potential impact of it.” [Associated Press, 2/27/2006; US District Court for the District of Columbia, 2/27/2006 ] Criminal defense attorney Jeralyn Merritt, writing for the progressive blog TalkLeft, states: “I think Libby has boxed himself in on his memory defense. He now has a huge burden to show that he was so preoccupied with other matters on six or seven different occasions that he couldn’t accurately remember what he told or was told by [reporters Judith] Miller, [Matthew] Cooper, and [Tim] Russert. It’s almost like using the space cadet defense many drug defendants offer, rarely sucessfully.” [Jeralyn Merritt, 2/27/2006]
Lewis Libby’s legal team hires well-known memory expert Daniel L. Schacter as a consultant. Schacter is a psychology professor at Harvard University, and has written books on the subject of memory loss. In one of his books, Schacter wrote that if we are distracted as an event unfolds, “we may later have great difficulty remembering the details of what happened.” It is easy, Schacter has written, to “unwittingly create mistaken—though strongly held—beliefs about the past.” A central tenet of Libby’s defense strategy is to assert that Libby’s repeated falsehoods to the FBI (see October 14, 2003 and November 26, 2003) and the grand jury (see March 5, 2004 and March 24, 2004) were the result of memory problems and not deliberate lies (see January 31, 2006). According to one of Libby’s lawyers, during his hectic days handling sensitive national security matters, “it is understandable that he may have forgotten or misremembered relatively less significant events. Such relatively less important events include alleged snippets of conversations about [outed CIA agent] Valerie Plame Wilson’s employment status.” [MSNBC, 2/28/2006]
Slate editor John Dickerson, who played a small role in the Valerie Plame Wilson identity leak (see February 7, 2006), writes about the recently launched Lewis Libby defense fund’s Web site created to help raise money for Libby’s defense (see After October 28, 2005 and February 21, 2006). Far from looking like the Web site of an indicted criminal, Dickerson writes, the site’s design makes it seem as if Libby is running for elected office. He is shown with Afghan President Hamid Karzai, while “[o]ther snapshots portray him in soft focus and at oblique angles, the kinds of images candidates use to make themselves look more huggable. Fortunately, Libby’s Web designers didn’t stoop to showing him with dogs and children.”
The 'Soft Sell' - Dickerson says the site is attempting to portray Libby to the American people as a likeable, honest person whose years of public service have left him open to unfair and unwarranted criminal charges. The site claims that Libby has virtually no money with which to fight those charges, and is basically relying on the generosity of the public to help him fight the government. The site does not focus as strongly on the array of powerful Washington Republicans lined up to help Libby raise money, particularly the large number of star fundraisers who raised large amounts of money for the Bush-Cheney presidential campaigns. However, the site notes, the Libby defense fund will not publicly release the names of donors to the fund. The site does focus on what Dickerson calls “the soft Scooter sell.” It intends to “clean… up his image for the public, the press, and potential jurors. The Web site offers a page titled ‘What You Aren’t Hearing,’ with testimonials lined up like movie blurbs.”
Possible Defense Strategy - And, Dickerson writes, the site offers hints as to what Libby’s defense strategy might be.
If the site is accurate, the defense team intends to portray Libby as “a good guy” who, as former Republican congressman Vin Weber says in a testimonial, “is a tough, honorable, honest guy.” He has spent his adult life in “selfless,” and apparently almost penniless, service to his country, fighting for the American people and battling terrorism and other national security threats with every waking breath. He is a “perfectionist,” says former Deputy Defense Secretary Paul Wolfowitz.
Libby just forgot about his knowledge of Plame Wilson’s CIA status, the site emphasizes, because he was too busy serving his country (see January 31, 2006). Former Bush Legislative Affairs Director Nick Calio is quoted as saying: “There are a lot of things that I don’t remember. I go through notes sometimes now and say I don’t even remember being in the meeting, let alone, you know, having said what I said.” Former Bush Solicitor General Theodore Olson adds, “From personal experience as a former public official who has been investigated by a special prosecutor, I know how easy it is not to be able to remember details of seemingly insignificant conversations.”
Dickerson notes that the two arguments are somewhat contradictory. He writes, “Libby’s site has a hard time, because it simultaneously is trying to argue that a) he was likely to forget the Plame episodes and b) he was hypercompetent.”
The site also spends a large amount of time and bandwidth attacking special counsel Patrick Fitzgerald. Seven of the 19 perspectives on Libby are criticisms of Fitzgerald, such as a statement by former Deputy Attorney General Victoria Toensing (see November 3, 2005) that the special counsel “has been investigating a very simple factual scenario and he’s missed this crucial fact.” [Slate, 2/27/2006] Toensing will engage in further criticism of Fitzgerald and the criminal case against Libby in op-eds (see February 18, 2007, February 18, 2007, and March 16, 2007).
Bruce Fein, a former deputy attorney general in the Reagan administration, testifies before the Senate Judiciary Committee on the subject of the president’s wartime authority and the illegal wiretapping of American citizens (see December 15, 2005). “This is a defining moment in the constitutional history of the United States,” Fein tells the committee. “The theory invoked by the president to justify eavesdropping by the NSA in contradiction to FISA (see April 30, 1986 and October 23, 2001) would equally justify mail openings, burglaries, torture, or internment camps, all in the name of gathering foreign intelligence. Unless rebuked it will lie around like a loaded weapon, ready to be used by any incumbent who claims an urgent need.” In 2007, author and reporter Charlie Savage will write concerning Fein’s statement: “[A] president had secretly claimed the power to ignore a law, and then he had acted on that power. In so doing, the Bush-Cheney administration unleashed imperial power. Even if they had not personally abused their power, there was no guarantee that future presidents would show the same restraint. Moreover, there was no difference in principle between the warrant law [FISA] and any other law that regulates how the president can carry out his national security responsibilities. By demonstrating that a president can set aside a statute or treaty at will, the administration had set a precedent that future presidents, liberal and conservative alike, would be able to cite when they, too, wanted to violate a legal restriction on their power.” [Savage, 2007, pp. 133-134]
In an 8-0 decision, the US Supreme Court reverses the findings of earlier courts and finds for the defendants in the NOW v. Scheidler lawsuit (see June 1986, September 22, 1995, and March 29 - September 23, 1997). The Court, ruling on technical grounds (see April 22, 2002), determines that it was improper for the National Organization for Women (NOW) to use laws covering racketeering and organized crime against anti-abortion advocates who committed violence against women’s clinics. The Court also notes that Congress’s 1994 passage of the Freedom of Access to Clinic Entrances (FACE—see May 1994) Act indicated that Congress did not view the law as pertaining to this area. [FindLaw, 2/28/2006; Los Angeles Times, 3/1/2006]
Ali Mohamed, the double agent caught in 1998, still has not been sentenced. In 2000, he pled guilty to involvement in the 1998 African embassy bombings (see October 20, 2000) and his sentencing date had originally been set for July 2001 (see July 2001-December 2001). Linda Sanchez, Mohamed’s wife, says in an interview at this time, “He’s still not sentenced yet, and without him being sentenced I really can’t say much. He can’t talk to anybody. Nobody can get to him.” The US government has “got Ali pretty secretive.… It’s like he just kind of vanished [into] thin air.” [Lance, 2006, pp. 23-24] There is no evidence he has been sentenced since.
Agim Ceku is elected prime minister of Kosovo. Kosovo is still part of Serbia but is veering towards independence. Ceku was reportedly responsible for many atrocities while a Croatian general in 1993-1995 (see 1993-1995). He then became a top leader of the al-Qaeda-linked militant group, the Kosovo Liberation Army. Interpol removes Ceku from its list of wanted persons simply because of his new status as prime minister. [Associated Press, 3/24/2006]
Governor Mike Rounds (R-SD) of South Dakota signs a bill into law that bans almost all abortions in his state. The law makes all abortions illegal except for cases where the mother’s life is at risk. The law is designed to be appealed to the Supreme Court and give that body a chance to overturn the 1973 Roe v. Wade decision (see January 22, 1973). [CBS News, 4/19/2007] In November 2008, South Dakota voters will vote to repeal the law, by a 56 percent-44 percent margin. [Stateline, 11/8/2008]
Special counsel Patrick Fitzgerald files a motion with the court in the Lewis Libby perjury trial to deny the Libby team’s request for a wide array of documents (see February 27, 2006). Almost all of the filing is redacted before its release to the public, but it apparently specifies the documents Fitzgerald is opposed to collecting and releasing. [US District Court for the District of Columbia, 3/1/2009 ]
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