!! History Commons Alert, Exciting News
Regulation and oversight
Events: (Note that this is not the preferable method of finding events because not all events have been assigned topics yet)
Page 16 of 22 (2163 events (use filters to narrow search))previous
CNN analyst Donald Shepperd. [Source: New York Times]With criticism of the Guantanamo Bay detention facility reaching new heights, new allegations of abuse from UN human rights experts, Amnesty International receiving plenty of media exposure for calling the facility “the gulag of our times” (see May 25, 2005), and many calling for the facility’s immediate closure, the Pentagon counters by launching the latest in its propaganda counteroffensive designed to offset and blunt such criticism (see April 20, 2008). The Pentagon and White House’s communications experts place a select group of around ten retired military officers, all who regularly appear on network and cable news broadcasts as “independent military analysts,” on a jet usually used by Vice President Dick Cheney, and fly them to Cuba for a carefully orchestrated tour of the facility. [New York Times, 4/20/2008]
A Four-Hour Tour - During the three-hour flight from Andrews Air Force Base to Cuba, the analysts are given several briefings by various Pentagon officials. After landing, but before being taken to the detention facility, they are given another 90-minute briefing. The analysts spend 50 minutes lunching with some of the soldiers on base, then begin their tour. They spend less than 90 minutes viewing the main part of the Guantanamo facility, Camp Delta; in that time, they watch an interrogation, look at an unoccupied cellblock, and visit the camp hospital. They spend ten minutes at Camp V and 35 minutes at Camp X-Ray. After less than four hours in Guantanamo’s detention facilities, they depart for Washington, DC. [Salon, 5/9/2008] This is the first of six such excursions, all designed to prepare the analysts for defending the administration’s point of view and counter the perception that Guantanamo is a haven for abusive treatment of prisoners. During the flight to the facility, during the tour, and during the return flight, Pentagon officials hammer home the message they want the analysts to spread: how much money has been spent on improving the facility, how much abuse the guards have endured, and the extensive rights and privileges granted to the detainees.
Producing Results - The analysts provide the desired results. All ten immediately appear on television and radio broadcasts, denouncing Amnesty International, challenging calls to close the facility, and assuring listeners that the detainees are being treated humanely. Donald Shepperd, a retired Air Force general, tells CNN just hours after returning from Guantanamo, “The impressions that you’re getting from the media and from the various pronouncements being made by people who have not been here in my opinion are totally false.” The next morning, retired Army General Montgomery Meigs appears on NBC’s flagship morning show, Today, and says: “There’s been over $100 million of new construction [at Guantanamo]. The place is very professionally run.” Transcripts of the analysts’ appearances are quickly circulated among senior White House and Pentagon officials, and cited as evidence that the Bush administration is winning the battle for public opinion. [New York Times, 4/20/2008]
Donald Shepperd, on the June 24 CNN broadcast. [Source: CNN]Within hours of returning from a Pentagon-sponsored “fact-finding” trip to the Guantanamo detention facility (see June 24-25, 2005), CNN military analyst Don Shepperd, as planned (see June 25, 2005), extolls the virtues of the Pentagon’s handling of detainees on a lineup of CNN news broadcasts. As per his most recent briefing, he does not mention the case of Mohammed al-Khatani (see August 8, 2002-January 15, 2003), who has suffered extensive brutality at the hands of his captors. Instead, his “analyses” are so uniformly laudatory that, as commentator Glenn Greenwald will observe, they are “exactly what it would have been had [Defense Secretary Donald] Rumsfeld himself written the script.” After returning from his half-day visit, he participates in a live telephone interview with CNN anchor Betty Nguyen. He opens with the observation: “I tell you, every American should have a chance to see what our group saw today. The impressions that you’re getting from the media and from the various pronouncements being made by people who have not been here, in my opinion, are totally false. What we’re seeing is a modern prison system of dedicated people, interrogators and analysts that know what they are doing. And people being very, very well-treated. We’ve had a chance to tour the facility, to talk to the guards, to talk to the interrogators and analysts. We’ve had a chance to eat what the prisoners eat. We’ve seen people being interrogated. And it’s nothing like the impression that we’re getting from the media. People need to see this, Betty.… I have been in prisons and I have been in jails in the United States, and this is by far the most professionally-run and dedicated force I’ve ever seen in any correctional institution anywhere.” Shepperd watched an interrogation, and he describes it thusly: “[T]hey’re basically asking questions. They just ask the same questions over a long period of time. They get information about the person’s family, where they’re from, other people they knew. All the type of things that you would want in any kind of criminal investigation. And these were all very cordial, very professional. There was laughing in two of them that we…” Nguyen interrupts to ask, “Laughing in an interrogation?” and Shepperd replies: “In the two of them that we watched. Yes, indeed. It’s not—it’s not like the impression that you and I have of what goes on in an interrogation, where you bend people’s arms and mistreat people. They’re trying to establish a firm professional relationship where they have respect for each other and can talk to each other. And yes, there were laughing and humor going on in a couple of these things. And I’m talking about a remark made where someone will smirk or laugh or chuckle.” In another CNN interview three days later, Shepperd reiterates and expands upon his initial remarks, and says of the detainees: “[W]e have really gotten a lot of information to prevent attacks in this country and in other countries with the information they’re getting from these people. And it’s still valuable.” CNN does not tell its viewers that Shepperd is president of The Shepperd Group, a defense lobbying and consulting firm. [CNN, 6/24/2005; Salon, 5/9/2008]
Retired Air Force General Donald Shepperd, a CNN news analyst, returns from a “fact-finding” trip to Guantanamo Bay (see June 24-25, 2005) prepared to provide Pentagon talking points to CNN audiences. Shepperd is remarkably candid about his willingness to serve as a Pentagon propagandist, writing in a “trip report” he files with his handlers, “Did we drink the ‘Government Kool-Aid?’—of course, and that was the purpose of the trip.” He acknowledges that “a one day visit does not an expert make” (Shepperd and his fellow analysts spent less than four hours touring the entire facility, all in the company of Pentagon officials), and notes that “the government was obviously going to put its best foot forward to get out its message.” He adds that “former military visitors are more likely to agree with government views than a more appropriately skeptical press.” Shepperd also sends an e-mail to Pentagon officials praising the trip and asking them to “let me know if I can help you.” He signs the e-mail, “Don Shepperd (CNN military analyst).” Shepperd’s e-mail is forwarded to Larry Di Rita, a top public relations aide to Secretary of Defense Donald Rumsfeld. Di Rita’s reply shows just how much control the Pentagon wields over the analysts. Di Rita replies, “OK, but let’s get him briefed on al-Khatani so he doesn’t go too far on that one.” Di Rita is referring to detainee Mohammed al-Khatani (see August 8, 2002-January 15, 2003), who had been subjected to particularly brutal treatment. Shepperd will, as planned, praise the Guantanamo detainee program on CNN in the days and hours following his visit to the facility (see June 24-25, 2005). [Salon, 5/9/2008] He will say in May 2008: “Our message to them as analysts was, ‘Look, you got to get the importance of this war out to the American people.’ The important message is, this is a forward strategy, it is better to fight the war in Iraq than it is a war on American soil.” [PBS, 5/1/2008]
Former FBI Director L. Patrick Gray, who resigned under fire during the Watergate investigation (see April 27-30, 1973), appears on ABC’s This Week to respond to the recent revelation that his then-deputy, W. Mark Felt, was the notorious informant “Deep Throat” (see May 31, 2005). Thirty years before, Felt had lied to Gray when asked if he had leaked information to the press (see October 19, 1972). Gray, whose health is in serious decline, airs decades’ worth of pent-up grievances against both Felt and the Nixon administration, which he says left him to “twist slowly, slowly in the wind” (Nixon aide John Ehrlichman’s words—see Late March, 1973) after he admitted giving information about the Watergate investigation to White House staffers (see June 28, 1972 and July 21, 1972). He felt “anger, anger of the fiercest sort” after hearing Ehrlichman’s words, and adds, “I could not believe that those guys were as rotten as they were turning out to be.” He was justified in burning key White House documents instead of turning them over to the FBI (see Late December 1972), he says, because the documents were unrelated to the Watergate investigation. Learning that Felt, his trusted deputy, was “Deep Throat” was, Gray says, “like [being] hit with a tremendous sledgehammer.” Gray says that if he could, he would ask Felt: “Mark, why? Why didn’t you come to me? Why didn’t we work it out together?” Gray says he now realizes that he could not stop the FBI from leaking information to the press because Felt was in charge of stopping the leaks. “I think he fooled me… by being the perfect example of the FBI agent that he was.… He did his job well, he did it thoroughly, and I trusted him all along, and I was, I can’t begin to tell you how deep was my shock and my grief when I found that it was Mark Felt.” Two weeks after the interview, Gray will die of cancer. [New York Times, 6/26/2005; Roberts, 2008, pp. 151] After Gray’s death, his son Ed Gray will call his father “the only wholly honest” man involved in Watergate. [Associated Press, 7/6/2005]
Portion of Pentagon e-mail discussing Meigs/Jacobs strategy session. [Source: Salon] (click image to enlarge)Two supposedly “independent” military analysts who are participating in the Pentagon’s Iraq propaganda campaign (see April 20, 2008 and Early 2002 and Beyond) take part in Pentagon-hosted media strategy sessions to maximize the efficacy of the Pentagon’s propaganda onslaught regarding the Guantanamo Bay detention facility (see July 5, 2005). Retired General Montgomery Meigs and retired Colonel Jack Jacobs (who will be praised in 2008 by NBC’s Brian Williams for his independence—see April 29, 2008) take part in a session that is documented in an internal Pentagon e-mail. Suggestions in the Jacobs/Meigs session include providing information and photographs to all network presidents; not scheduling prime-time press conferences for Defense Secretary Donald Rumsfeld; only make Rumsfeld available to the press after priming reporters with information and photos, and ensuring that press questioning take place in places in which Rumsfeld is comfortable; and providing an “exclusive” report or analysis to the Washington Post. Both Meigs and Jacobs are routinely touted as “independent analysts” by MSNBC; both are shown to be quite reliable in providing Pentagon talking points by the Pentagon’s tracking system (see 2005 and Beyond). [Salon, 5/9/2008]
Gordon Cucullu. [Source: The Intelligence Summit]“Independent military analyst” Gordon Cucullu, a former Green Beret, is an enthusiastic participant in the Pentagon’s Iraq propaganda operation (see April 20, 2008 and Early 2002 and Beyond). Cucullu has just returned from a half-day tour of the Guantanamo detention facility (see June 24-25, 2005), and is prepared to give the Pentagon’s approved message to the media.
Talking Points Covered in Fox Appearance - In an e-mail to Pentagon official Dallas Lawrence, he alerts the department to a new article he has written for conservative Website FrontPage, and notes that he has appeared on an early-morning broadcast on Fox News and delivered the appropriate talking points: “I did a Fox & Friends hit at 0620 this morning. Good emphasis on 1) no torture, 2) detainees abuse guards, and 3) continuing source of vital intel.” [Salon, 5/9/2008]
Op-Ed: Pampered Detainees Regularly Abuse Guards - In the op-ed for FrontPage, entitled “What I Saw at Gitmo,” he writes that the US is being “extraordinarily lenient—far too lenient” on the detainees there. There is certainly abuse going on at Guantanamo, Cucullu writes—abuse of soldiers by the detainees. Based on his three-hour tour of the facility, which included viewing one “interrogation” and touring an unoccupied cellblock, Cucullu says that the detainees “fight their captors at every opportunity” and spew death threats against the soldiers, their families, and Americans in general. The soldiers are regularly splattered with “feces, urine, semen, and spit.” One detainee reportedly told another, “One day I will enjoy sucking American blood, although their blood is bitter, undrinkable.” US soldiers, whom Cucullu says uniformly treat the detainees with courtesy and restraint (see August 8, 2002-January 15, 2003), are constantly attacked by detainees who wield crudely made knives, or try to “gouge eyes and tear mouths [or] grab and break limbs as the guards pass them food.” In return, the detainees are given huge meals of “well-prepared food,” meals which typically overflow from two styrofoam containers. Many detainees insist on “special meal orders,” and throw fits if their meals are not made to order. The level of health care they are granted, Cucullu says, would suit even the most hypochondriac American. Cucullu writes that the detainees are lavished with ice cream treats, granted extended recreational periods, live in “plush environs,” and provided with a full array of religious paraphernalia. “They are not abused, hanged, tortured, beheaded, raped, mutilated, or in any way treated the way that they once treated their own captives—or now treat their guards.” The commander, Brigadier General Jay Hood, tells Cucullu that such pampered treatment provides better results than harsher measures. “Establishing rapport” is more effective than coercion, Hood says, and, in Cucullu’s words, Hood “refers skeptics to the massive amount of usable intelligence information [the detainees] produce even three years into the program.” In conclusion, Cucullu writes, the reader is “right to worry about inhumane treatment” at Guantanamo, but on behalf of the soldiers, not the detainees. [FrontPage Magazine, 6/27/2005]
Months after the Bush administration successfully convinced the New York Times to hold off publishing its report on the administration’s warrantless wiretapping program (see Early November 2004, December 6, 2005, and December 15, 2005), one of the reporters on the story, Eric Lichtblau, attempts to get a response on the program from one of the few Democrats briefed on it, House Intelligence Committee ranking member Jane Harman (D-CA). In his 2008 book Bush’s Law: The Remaking of American Justice, Lichtblau will write about covering a House hearing where Harman launches into a passionate call for stronger civil liberties safeguards in the reauthorization of the USA Patriot Act (see March 9, 2006). According to his recollection, Lichtblau approaches Harman and says, “I’m trying to square what I heard in there with what we know about that program.” He will write: “Harman’s golden California tan turned a brighter shade of red. She knew exactly what I was talking about. Shooing away her aides, she grabbed me by the arm and drew me a few feet away to a more remote section of the Capitol corridor. ‘You should not be talking about that here,’ she scolded me in a whisper. ’ They don’t even know about that,’ she said, gesturing to her aides, who were now looking on at the conversation with obvious befuddlement.” Harman tells Lichtblau, “The Times did the right thing by not publishing that story,” but will not discuss the details. When asked what intelligence capabilities would be lost by informing the public about something the terrorists already knew—that the government was listening to them—she simply replies, “This is a valuable program, and it would be compromised.” Lichtblau will add: “This was clearly as far as she was willing to take the conversation, and we didn’t speak again until months later, after the NSA story had already run. By then, Harman’s position had undergone a dramatic transformation. When the story broke publicly, she was among the first in line on Capitol Hill to denounce the administration’s handling of the wiretapping program, declaring that what the NSA was doing could have been done under the existing FISA law.” [TPM Muckraker, 3/19/2008]
The Pentagon, tracking every bit of media coverage provided by the “independent military analysts” who are part of its Iraq propaganda program (see April 20, 2008 and Early 2002 and Beyond), is particularly pleased with the results of its half-day tour of Guantanamo for selected analysts (see June 24-25, 2005). Its tracking (see 2005 and Beyond) finds that Lieutenant Colonel Gordon Cucullu (see June 27, 2005) receives the most coverage during the almost two weeks after the tour, followed by Major General Donald Shepperd (see June 24-27, 2005). In all, the analysts made 37 media appearances. They emphasized the following talking points:
Prisoner/Guard Abuse -
“Most abuse is either toward US military personnel and/or between prisoners.”
“US military guards are regularly threatened by prisoners.”
“Some analysts stated there may have been past abuses at Gitmo but not now.”
'Prisoner Interrogations' -
“Interrogators are building relationships with prisoners, not torturing them.”
“We are still gaining valuable information from prisoners.”
Interrogations are very professionally run.”
'Quality of Prisoner Care' -
“Prisoners are given excellent treatment, including provision of any and all religious paraphernalia.”
“Special dietary requests are routinely granted.”
'Closing Gitmo' -
“Gitmo exceeds Geneva Convention requirements.”
“We should not close this facility and let dangerous terrorists out.” [Salon, 5/9/2008]
George Christian. [Source: PBS]Librarian and data manager George Christian is served with a so-called “National Security Letter” (NSL) from the FBI demanding that his firm turn over private information on its patrons because of an apparent terrorist threat e-mailed from one of his libraries (see February 2005). Christian is the executive director of Library Connection, Inc., which manages catalog information, patron records, and circulation information for 27 libraries in and around Hartford, Connecticut, as well as providing telecommunications services to many of its member libraries. Christian is given the NSL, as well as a gag order preventing them from ever mentioning their receipt of the letter, or any details surrounding it. Christian is notified of the letter five days before actually receiving it; he spends those days frantically learning more about NSLs and the laws surrounding them (see October 25, 2005). He learns that a district court in New York had found the entire NSL statute unconstitutional because of what Christian calls “prima facie violations of the 1st, 4th and 5th amendments.” By the time they receive the letter, he has decided to oppose it. The letter, delivered by two FBI agents, orders Christian and Library Connection to turn over information about a specific IP address registered to the firm. One of the agents warns Christian that the gag order prohibits anyone in the firm from telling anyone that the FBI is attempting to secure information from its library business records. Christian, who will testify before the Senate Judiciary Committee about the NSL in April 2007 (see April 11, 2007), says neither he nor his colleagues could “fathom any ‘exigent’ nature for the FBI request.” The letter was dated May 19, nearly two months before its delivery, was not addressed to Christian, and requested information from the use of the IP address five months earlier, February 15. Christian later says that while he and his colleagues want to assist the FBI in any way they can, and have no desire to “impede the investigation of a perilous situation that endanger[s] my country or my fellow citizens,” because of the date of the letter and the IP usage, they conclude that the FBI has not been in any rush to get the information. Christian tells the FBI agents that he believes the use of NSLs is unconstitutional and that he will consult his attorney. Library Connection’s attorney says that the only way to contest compliance with an NSL is to take the Attorney General, Alberto Gonzales, to court. Christian is understandably reluctant to involve his firm in such a court challenge without authorization, and takes the case to the Executive Committee of the firm’s board of directors. The three members, Barbara Bailey, Peter Chase, and Janet Nocek (who will soon be dubbed the “Connecticut Four” by the media), after conferring with the attorney and reviewing the New York court’s decision against NSLs, decide to go forward with the complaint. They secure representation from the American Civil Liberties Union (ACLU). Together, they decide to ask for relief from the NSL, to seek a broader ruling that the use of NSLs is unconstitutional, and to have the gag order lifted so they can publicly discuss the incident as “part of the national debate over renewal of the Patriot Act” (see March 9, 2006). Christian will tell the Senate Judiciary Committee, “We… felt we were defending our democracy by insisting that the checks and balances established in the Constitution be observed. We had no court order, and there was no evidence that an independent judge had examined the FBI’s evidence and found there to be probable cause justifying their request for information.… [W]e did not want to aid terrorists or criminals.… But we did not feel we would be helping the country or making anyone safer by throwing out the Constitution either.” Because of the way the computer system is set up, to give the FBI the information about the specific IP address and usage it required, Christian would have to give the FBI information about everyone using every computer in the particular library on the day in question. He later says, “[S]ince there was no way of determining who was using the computers in the library five months after the fact, we felt that [the FBI wanted] information we had on all the patrons of that library. That seemed like a rather sweeping request. Some would call it a fishing expedition.” The case goes to trial in August 2005 (see August 2005-May 2006). [Senate Judiciary Committee, 4/11/2007] It is later learned that the original e-mailed threat is a hoax. [USA Today, 7/6/2006]
Entity Tags: Peter Chase, National Security Letters, Senate Judiciary Committee, Library Connection, Inc., Barbara Bailey, George Christian, American Civil Liberties Union, Janet Nocek, Alberto R. Gonzales, Federal Bureau of Investigation, Connecticut Four
Timeline Tags: Civil Liberties
The Office of Management and Budget (OMB) releases a “Statement of Administrative Policy” regarding the 2006 National Defense Authorization Act, the massive appropriations bill for the year. The document is given little attention in the media, but it wields great influence inside the government. Unknown to most OMB staffers, Vice President Dick Cheney’s lawyer David Addington has gone through OMB deputy director Nancy Dorn—herself a former Cheney staffer—to add a key paragraph to the document at the very last minute, without staff review. The paragraph says, in part, “The administration strongly opposes” any amendment to “regulate the detention, treatment, or trial of terrorists captured in the war on terror.” Addington’s paragraph is a pre-emptive strike at any such legislative attempt to modify or ease the polices towards detainees, especially in a following statement that reads, “[T]he president’s senior advisers would recommend that he veto” any such bill. The insertion is part of Cheney’s attempt to head off any possible legislation restricting the administration’s claimed power to hold anyone it chooses in indefinite detention (see Summer 2005). [Office of Management and Budget, 7/21/2005 ; Washington Post, 6/25/2007]
Senator John McCain (R-AZ) introduces an amendment to the annual legislation to fund the Defense Department. McCain’s amendment, co-sponsored by Senate Armed Services Committee chairman John Warner (R-VA) and Senator Lindsey Graham (R-SC), a former military lawyer, states that military interrogators cannot exceed the limits on detainee treatment set forth in the US Army Field Manual. In essence, the amendment would prohibit the use of harsh interrogation techniques that many, including McCain, feel constitute torture. The Field Manual limits were specifically written to comply with the Geneva Conventions. The amendment also prohibits US officials, including CIA agents, from inflicting not just torture but any form of “cruel, inhuman, and degrading treatment” on anyone in their custody, no matter where in the world the prisoner is being kept. The amendment, later known as the McCain Amendment or the McCain Torture Ban, becomes the subject of fierce, largely private negotiations between McCain and the White House. Vice President Cheney quickly lobbies friendly Republicans in Congress to oppose the amendment, and has private meetings with Warner and McCain. At Cheney’s behest, Senate Majority Leader Bill Frist (R-TN) withdraws the entire bill from consideration rather than allow it to pass with the McCain amendment attached. [Savage, 2007, pp. 220-221]
Douglas Dickerson. [Source: US Army]The Air Force’s Office of Special Investigation sends word to Sibel Edmonds’ attorney Mark Zaid that it is reopening the investigation into Edmonds’ former co-worker Melek Can Dickerson and her husband, Douglas Dickerson. Edmonds had warned her superiors in early 2002 that the couple was involved in espionage (see December 4, 2001). Journalist David Rose, who recently authored a lengthy piece on the Sibel Edmonds case for Vanity Fair magazine, believes the investigation may have been re-opened in part because of that article and because he submitted about 150 different questions about the case to the Air Force and other parts of the Pentagon, the Justice Department, and the FBI. [Democracy Now!, 8/10/2005]
The Connecticut Four, from left to right: Janet Nocek, Peter Chase, George Christian, and Barbara Bailey. [Source: Robert Deutsch/ USA Today]A case filed against Attorney General Alberto Gonzales by four plaintiffs from Connecticut’s Library Connection, Inc.—George Christian, Barbara Bailey, Peter Chase, and Janet Nocek—goes to trial in federal district court (see July 13, 2005). The trial is filed as Doe v. Gonzales because the government has filed a gag order against the plaintiffs forbidding them from identifying themselves or discussing the case publicly. The case involves a demand for information from the FBI for information concerning library usage by patrons of a Connecticut library; the four plaintiffs, on behalf of their data management firm Library Connection, have refused. The case revolves around the use of a National Security Letter (NSL) by the FBI; the plaintiffs, with support from the American Civil Liberties Union, want the NSL voided, the gag order lifted, and such use of NSLs found unconstitutional. Christian and his three colleagues are not allowed to attend the hearings in person because of the possibility that they might be identified as the plaintiffs; they are forced to watch the proceedings on a closed-circuit broadcast from a locked room in the Hartford courthouse. When the judge in the proceeding asks to review the government’s evidence for keeping the gag rule in place, Justice Department lawyers insist on submitting secret evidence directly to the judge, without providing that evidence to the plaintiff’s lawyers. The judge is not pleased, and rules, as did her predecessor in New York, that a perpetual gag order amounts to prior restraint, and thereby is unconstitutional. She adds that her review of the secret evidence gives no national security rationale for keeping the plaintiffs gagged. The Justice Department immediately appeals the ruling, and the plaintiffs stay silent and gagged. While the four plaintiffs remain silent about the NSL and the court case, the Justice Department’s primary lawyer, Kevin O’Conner, does not: O’Conner has frequently debated one of the plaintiffs, Chase, about the Patriot Act, and though Chase is now required to remain silent, O’Conner continues to make frequent public appearances touting the Patriot Act. Christian later says, in 2007 testimony before the Senate Judiciary Committee (see April 11, 2007), that the continuing gag order causes the four “John Does” considerable professional and personal distress, especially after the national media begins reporting the story. The media eventually learns, through the careless redaction of information by government lawyers, of Chase’s identity as one of the four plaintiffs, and reveals that Library Connection is the firm involved in the lawsuit. Christian’s name comes to light shortly thereafter. The attorneys warn Christian and the others that even though their identities and their firm have been revealed, they still cannot comment at all on the case. Christian, for one, wants to testify before Congress in regards to the upcoming reauthorization of the Patriot Act (see March 9, 2006), but cannot. The four plaintiffs quickly become known in the media as the “Connecticut John Does” or the “Connecticut Four.”
Appeals Court - In November 2005, a New York court of appeals hears the case. Christian and his colleagues are allowed to be present at the case this time, but are required to conceal their identities by entering and leaving the court building separately, are not allowed to sit together, and are not allowed to confer with, or even make eye contact with, each other or their attorneys. The Justice Department lawyers argue that even revealing themselves as recipients of a NSL would violate national security, an argument refuted by submission of the raft of news articles identifying Christian, Chase, and Library Connection. The government argues that those news reports don’t matter because no one in Connecticut reads the primary newspaper carrying the story, the New York Times, and that surveys prove that most people don’t believe what they read in the news anyway. The Justice Department also tries to get the news articles to be kept under seal in court papers. Christian characterizes the entire proceeding as “absurd.” The court refuses to admit the plaintiff’s claim that 48 states, including Connecticut, have laws protecting the privacy of library patrons, but does admit into evidence the claims by Gonzales that there is no statutory justification for claims of privacy. In an attempt to get the gag order lifted before the Patriot Act reauthorization, the plaintiff’s attorneys make an emergency appeal directly to the Supreme Court, but are rebuffed. [Senate Judiciary Committee, 4/11/2007] In June 2006, Nocek tells a reporter, “Imagine the government came to you with an order demanding that you compromise your professional and personal principles. Imagine then being permanently gagged from speaking to your friends, your family or your colleagues about this wrenching experience.… Under the Patriot Act, the FBI demanded Internet and library records without showing any evidence or suspicion of wrongdoing to a court of law. We were barred from speaking to anyone about the matter and we were even taking a risk by consulting with lawyers.” [Interview: George Christian, 6/2/2006]
Gag Order Lifted, Case Dropped - Weeks after President Bush signs into law the Patriot Act reauthorization (see March 9, 2006), the FBI voluntarily lifts the gag order without waiting for a court order. The agency then tries to get the original ruling against the gag order vacated, an attempt that the appeals court refuses. The appellate judges are clearly disturbed by the breadth of the NSL gag provisions; one appellate judge writes, “A ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens… Unending secrecy of actions taken by government officials may also serve as a cover for possible official misconduct and/or incompetence.” The appeals court refers the case back to district court, allowing the original opinion to stand. Weeks later, the FBI withdraws its NSL, saying that it no longer needs the information it originally requested. Christian later testifies, “In doing so, they removed the Patriot Act from the danger of court review.” Christian later says that he believes the entire procedure was managed as an attempt to prevent the case from becoming public knowledge before Congress could vote on the reauthorization of the Patriot Act. [Senate Judiciary Committee, 4/11/2007]
Entity Tags: Peter Chase, Senate Judiciary Committee, National Security Letters, US Department of Justice, Library Connection, Inc., George Christian, George W. Bush, American Civil Liberties Union, Barbara Bailey, Connecticut Four, Alberto R. Gonzales, Federal Bureau of Investigation, Kevin O’Conner
Timeline Tags: Civil Liberties
After media begin to report on the CIA’s rendition from Italy of Islamist extremist Hassan Mustafa Osama Nasr (see Noon February 17, 2003 and June 23, 2005 and After), the agency’s Director Porter Goss asks its inspector general to review the case. According to the New York Times, the review is to focus on the “amateurish tradecraft in the case, like operatives staying in five-star hotels and using traceable credit cards and cellphones.” However, CIA Deputy Director for Operations Jose Rodriguez says that there is no need for a review by the inspector general and that the directorate of operations, which is soon to be renamed the National Clandestine Service, will investigate itself. [New York Times, 2/20/2008] Rodriguez was the head of the CIA’s Counterterrorist Center at the time of the rendition (see May 2002), but his role in approving the operation is unclear.
William Cowan. [Source: The Intelligence Summit]Fourteen Marines die in Iraq. Hours after their deaths, William Cowan, a retired Marine colonel and Fox News analyst (see April 20, 2008 and Early 2002 and Beyond) who has grown increasingly uncomfortable with what he will later call the Pentagon’s “twisted version of reality” being pushed on analysts in briefings, telephones the Pentagon to advise officials that his upcoming comments on Fox “may not all be friendly.” He is then given a private briefing, quickly arranged by Defense Secretary Donald Rumsfeld’s senior aides. But Cowan then tells Fox host Bill O’Reilly that it has been “a bad week” in Iraq, that many military officials he has talked to were “expressing a lot of dismay and disappointment at the way things are going,” and the US is “not on a good glide path right now” in Iraq. The repercussions are almost immediate. According to Cowan, he is “precipitously fired from the analysts group” for this appearance. The Pentagon “simply didn’t like the fact that I wasn’t carrying their water.” Cowan later recalls: “Suddenly, boom, I never got another telephone call, I never got another e-mail from them.… I was just booted off the group. I was fired.” Cowan will say that he and other analysts were given special access only “as long as they thought I was serving their purposes.… I drink nobody’s Kool-Aid.” The next day, the other analysts take part in a conference call with General James Conway, the director of operations for the Joint Chiefs of Staff, where he urges them not to let the Marines’ deaths erode support for the war. Conway is blunt, saying directly that the US citizenry is the main target of Pentagon propaganda. “The strategic target remains our population,” he tells them. “We can lose people day in and day out, but they’re never going to beat our military. What they can and will do if they can is strip away our support. And you guys can help us not let that happen.” An analyst chimes in, “General, I just made that point on the air.” Conway says, “Let’s work it together, guys.” [New York Times, 4/20/2008; Washington Post, 4/21/2008]
Congress passes the Energy Policy Act (EPA) of 2005. The EPA is the product of the secret Cheney energy task force (see January 29, 2001 and May 16, 2001). The act provides $14.5 billion in tax breaks for corporate energy providers, primarily oil, coal, and nuclear power companies. It contains an array of odd and obscure provisions helping industrialists, many generated by the lobbyists and corporate executives who helped craft the bill (see May 10, 2005). It does nothing to discourage consumption by raising fuel efficiency standards, and does little to address the sharply rising price of oil. What it does, primarily, is give huge financial and regulatory breaks to the energy industry. [Savage, 2007, pp. 360]
Congress passes a law that forbids the Department of Energy, the Nuclear Regulatory Commission, and their contractors from firing or otherwise punishing any employee who informs Congress about possible wrongdoing. President Bush issues a signing statement that says only he or his appointees will decide whether employees of either agency can give information to Congress. [Boston Globe, 4/30/2006]
FBI Director Robert Mueller tells an audience at an InfraGard convention, “Those of you in the private sector are the first line of defense.” InfraGard is an organization made up of private business executives and employees who work with the FBI in counterterrorism, surveillance, and other areas (see 1996-2008). Mueller urges InfraGard members to contact the FBI if they “note suspicious activity or an unusual event.” And he urges members to inform the FBI about “disgruntled employees who will use knowledge gained on the job against their employers.” After the convention, Muller says of InfraGard, “It’s a great program.” [Progressive, 2/7/2008]
A front page article in the New York Times reveals the existence of a highly classified military intelligence unit called Able Danger, which had identified Mohamed Atta and three other 9/11 hijackers as likely members of an al-Qaeda cell operating in the United States more than a year before the attacks. [New York Times, 8/9/2005] Members of the unit had recommended that the FBI be called in to take out the cell, but Pentagon lawyers had blocked their request (see September 2000). The incident was first described in a June 2005 speech on the House floor by Representative Curt Weldon (R-PA), and in an interview with Weldon around the same time in the Norristown Times Herald, neither of which had garnered much attention. [Norristown Times Herald, 6/19/2005; US Congress. House, 6/27/2005] Weldon, who is vice chairman of both the House Armed Services Committee and the House Homeland Security Committee, claims he only recognized the significance of the incident after contacting members of the Able Danger unit during research for a book about terrorism. [New York Times, 8/10/2005]
In response to new revelations about a military intelligence unit called Able Danger, which allegedly identified Mohamed Atta and three other 9/11 hijackers more than a year before the attacks, Al Felzenberg—formerly the chief spokesman for the 9/11 Commission—acknowledges that a uniformed officer briefed two of the commission’s staff members about the unit in early July 2004 (see July 12, 2004). He also admits that the officer said the program had identified Mohamed Atta as part of an al-Qaeda cell in Brooklyn. This information was not mentioned anywhere in the commission’s final report. [New York Times, 8/11/2005] The existence of the Able Danger program was first revealed two days ago in an August 9 New York Times article (see August 9, 2005). In that article, the Times reported that Felzenberg had confirmed that an October 2003 briefing had taken place which did not include any references to Mohamed Atta or the Brooklyn al-Qaeda cell. But Felzenberg did not tell the newspaper about the July 2004 briefing, which apparently had provided the commission with far more details about the Able Danger program. [New York Times, 8/9/2005; New York Times, 8/11/2005] It is not clear who exactly in the commission was aware of the program. Former 9/11 Commissioners Tim Roemer and John Lehman say they were never briefed about Able Danger before the 9/11 Commission’s Final Report was published. [Government Security News, 8/2005 Sources: Curt Weldon]
Former leaders of the 9/11 Commission, Thomas Kean and Lee Hamilton, release a statement saying that panel staff members have found no documents or other witnesses that support allegations that hijacker Mohamed Atta was identified by a secret Pentagon program, known as Able Danger, before the 9/11 attacks. The existence of Able Danger first received wide public attention a few days before by the New York Times (see August 11, 2005). According to the commissioners, “The interviewee had no documentary evidence” to back up his claims and “the Commission staff concluded that the officer’s account was not sufficiently reliable to warrant revision of the report or further investigation.” [Thomas H. Kean and Lee H. Hamilton, 8/12/2005 ; Washington Post, 8/13/2005]
Deputy Attorney General James Comey, who has already tendered his resignation, gives his farewell speech to an assemblage in the Justice Department. Comey makes what author and reporter Charlie Savage will later call “a cryptic reference to the fights over warrantless surveillance and torture issues that he had fought alongside [former Office of Legal Counsel chief Jack] Goldsmith and the other non-team players” (see Late 2003-2005 and June 17, 2004). Comey tells the assembled employees that, during his tenure, he had dealt with issues that “although of consequence almost beyond my imagination, were invisible because the subject matter demanded it.” In these disputes, he says he worked with people whose loyalty “to the law… would shock people who are cynical about Washington.” Those people, he says, “came to my office, or my home, or called my cell phone late at night, to quietly tell me when I was about to make a mistake; they were people committed to getting it right—and to doing the right thing—whatever the price. These people know who they are. Some of them did pay a price for their commitment to [do] right, but they wouldn’t have it any other way.” [US Department of Justice, 8/15/2005; Consortium News, 2/8/2006; Savage, 2007, pp. 199] Comey will later testify that one of the people he is referring to is former Justice Department lawyer Patrick Philbin. [Savage, 2007, pp. 199]
A US Army intelligence officer comes forward, saying he was involved with a secret military intelligence unit, which had identified Mohamed Atta and three other future 9/11 hijackers by mid-2000. He says the unit, called Able Danger, had tried to meet with agents at the FBI’s Washington field office that summer to share its information, but was prevented from doing so by military lawyers (see September 2000). Lt. Col. Anthony Shaffer, who served as a liaison officer between Able Danger and the Defense Intelligence Agency, is the first military officer associated with Able Danger to publicly acknowledge his involvement with the unit. Shaffer says that, had they been allowed to alert the FBI to Mohamed Atta being in the US, they might have been able to prevent 9/11. [New York Times, 8/17/2005; Guardian, 8/18/2005; New York Post, 8/18/2005] A week prior to Shaffer’s coming forward, Able Danger was brought to the public’s attention in a New York Times front page article (see August 9, 2005). Shaffer says he met privately with staff from the 9/11 Commission in Afghanistan in October 2003, and explicitly mentioned Atta as a member of the “Brooklyn” al-Qaeda cell (see October 21, 2003).
Bunnatine H. Greenhouse, who earlier criticized the US Army Corps of Engineers’ sole-source contract with Halliburton at a public hearing (see June 27, 2005), is demoted from her position as Principal Assistant Responsible for Contracting (PARC). Greenhouse, who was known for her steadfast adherence to regulations enforcing fair competition, received high performance ratings at the beginning of her tenure, which began in 1997. But after she began objecting to the contracts being awarded to Halliburton subsidiary Kellogg, Brown, & Root (KBR), her reviews became negative. [New York Times, 8/29/2005; Democratic Policy Committee, 9/16/2005, pp. 8-9 ]
Three war contractors for KBR, the firm supplying logistical support for US troops in Iraq and Kuwait, meet in a quiet lounge in London’s Cumberland Hotel. The three men are unaware that federal agents are tailing them. They spend the afternoon drinking and discussing the various bribes they have accepted as kickbacks as a routine part of doing business. KBR procurement manager Stephen Seamans, who, unbeknownst to his colleagues, is wearing a wire for the FBI, wonders whether or not he should return $65,000 in bribes his two fellows, executives from the Saudi conglomerate Tamimi Global Co, gave him. One of the two executives, Tamimi operations director Shabbir Khan, tells him to conceal the money by falsifying business records. “Just do the paperwork,” Khan advises. This and other information about KBR war profiteering in Iraq comes from a federal investigation that will begin in late 2007 (see October 2006 and Beyond). [Chicago Tribune, 2/20/2008; Chicago Tribune, 2/21/2008]
Representative Jane Harman (D-CA) is recorded telling a suspected Israeli agent that she would intervene with the Justice Department to try to get charges against two Israeli lobbyists reduced. In return, the Israeli agent promises to help Harman secure the chairmanship of the House Intelligence Committee. The Israeli agent will remain unidentified; the two lobbyists, Steve Rosen and Keith Weissman, are charged with espionage after they allegedly passed along classified information to the American Israel Public Affairs Committee (AIPAC—see April 13, 1999-2004). The conversation between Harman and the Israeli agent is recorded on an wiretap, reportedly by the NSA, mounted as part of a federal investigation into AIPAC’s potential espionage operations against the US (see October 5, 2005). According to transcripts of the wiretapped conversation, Harman agrees to “waddle into” the AIPAC case “if you think it’ll make a difference.” The Israeli agent asks Harman if she could speak with Attorney General Alberto Gonzales on Rosen’s and Weissman’s behalf. Harman replies that Gonzales might not cooperate, because he “just follows White House orders,” but other officials might be more pliable. In return, the Israeli agent promises to contact House Minority Leader Nancy Pelosi (D-CA) and attempt to persuade her to name Harman as chairwoman of the Intelligence Committee if the Democrats win control of the House in the November 2006 elections. Harman tells the agent, “This conversation doesn’t exist,” and hangs up. The contents of the conversation will later be confirmed by three separate sources, including two former senior national security officials. [Congressional Quarterly, 4/19/2009] Reporter Marc Ambinder will later write that Harman’s conversation may have been recorded by the FBI, and not the NSA, as part of the its investigation into Rosen and Weissman. [Atlantic Monthly, 4/20/2009]
In an essay for the Virginia Law Review entitled “Liberalism, Torture, and the Ticking Bomb,” Georgetown law professor David Luban dismantles the familiar argument that torture of a detainee might be necessary to stop the so-called “ticking bomb scenario.” Author and former White House counsel John Dean, who quotes Luban in his 2006 book Conservatives Without Conscience, will describe the scenario and its ramifications thusly: “A nuclear bomb has been planted in the heart of a major American city and authorities have in custody a person who knows where it is located. To save possibly millions of lives, would it not be justified to torture this individual to get the necessary information to stop it? Absolutely. Is not this lesser evil justified? Of course it is. And this argument is a wonderful means to comfort those who have moral problems with torture. Its beauty is that once you concede there are circumstances in which torture might be justified, morally and legally… you are on the other side of the line. You’ve joined the torture crowd. To paraphrase [George W.] Bush, you’ve joined the evildoers.” Dean calls it “a bogus argument, a rhetorical device. It is seductively simple, and compellingly logical. But it is also pure fantasy.” The likelihood of such conditions are extremely remote, Dean writes, on the order of a giant meteor striking the Earth. Dean will cite Luban’s arguments as counters to the scenario. Luban writes, “[T]here are certain situations so monstrous that the idea that the processes of moral rationality could yield an answer in them is insane… to spend time thinking what one would decide if one were in such a situation is also insane, if not actually frivolous.” Luban notes that Senator John McCain (R-AZ), himself a victim of torture during the Vietnam War (see October 1, 2005 and November 21, 2005), “has said that ultimately the debate is over who we are. We will never figure that out until we stop talking about ticking bombs, and stop playing games with words.” [Dean, 2006, pp. 165]
Senator John McCain (R-AZ), an ardent opponent of torture by US officials (see November 21, 2005), continues to press an amendment to a $440 billion defense appropriations bill that prohibits cruel, inhuman, and degrading treatment of prisoners held in US captivity (see July 24, 2005 and After). The bill also posits the US Army Field Manual as the uniform standard for interrogations by any Defense Department personnel. The Field Manual is being revised, and Pentagon sources have claimed the revisions will include a section on the importance of following the Geneva Conventions. The amendment is facing stiff opposition from the White House, which asserts that it would encroach on the power of the president as the commander in chief, and would threaten national security by reducing the ability of military interrogators to obtain critical intelligence from prisoners. On the floor of the Senate, McCain reads a letter from former Secretary of State Colin Powell, who had opposed Vice President Cheney on the issue of torture. Powell writes: “Our troops need to hear from Congress. The world will note that America is making a clear statement with respect to the expected future behavior of our soldiers.” McCain himself calls the White House’s legal theories on torture “strange,” and warns that enemies could use America’s justifications of torture as justifications for the torture of US captives. “We are Americans and we hold ourselves to humane standards of treatment of people no matter how evil or terrible they may be,” he says. Terrorists “don’t deserve our sympathy. But this isn’t about who they are. This is about who we are. These are the values that distinguish us from our enemies.” The White House continues to oppose the amendment. President Bush threatens to veto the entire bill, and Cheney circulates pro-torture talking points to friendly Congressional Republicans. Cheney, with CIA Director Porter Goss in tow, asks McCain to exempt CIA officials from the anti-torture amendment at the discretion of the president; McCain refuses. McCain is bolstered by a letter signed by over two dozen retired generals urging Congress to pass the amendment, including Powell and former Joint Chiefs chairman General John Shalikashvili. The amendment passes the Senate 90 to nine. However, the House leadership, steered by Speaker Dennis Hastert (R-IL), refuses to allow the amendment into the House version by refusing to let the House vote on it at all. It will take a House-Senate conference committee to decide the fate of the amendment. [Dubose and Bernstein, 2006, pp. 195; Savage, 2007, pp. 221]
The Fourth Circuit Court of Appeals rules that President Bush, as commander in chief, can continue to hold Jose Padilla (see June 9, 2002), a US citizen arrested on US soil (see June 8, 2002), indefinitely as an enemy combatant. Padilla is to be treated the same as an American captured on a foreign battlefield (see June 28, 2004). The majority ruling is written by Judge J. Michael Luttig, often thought of as a potential Bush Supreme Court nominee. Luttig rules there is “no difference in principle between [Yaser Esam] Hamdi (see June 28, 2004) and Padilla.” Bush’s “powers include the power to detain identified and committed enemies such as Padilla, who associated with al-Qaeda and the Taliban regime, and who entered the United States for the avowed purpose of further prosecuting [terrorism] by attacking American citizens and targets on our own soil.” Luttig ignores the fact that Padilla has never been charged, much less convicted, of any crime. When the Bush administration later charges Padilla as an ordinary criminal—and does not charge him with with any of the terrorist activities it had long alleged he had committed—many administration critics will conclude that, just as in the Hamdi case, the administration had used inflammatory rhetoric and baseless charges to obtain a judicial decision it wanted (see October 10, 2004). When Luttig learns of the administration’s actions, he will issue a supplementary opinion excoriating the White House (see December 21, 2005). [Savage, 2007, pp. 200]
Congress passes a law requiring the Customs and Border Patrol to relocate its illegal immigrant checkpoints near Tucson, Arizona, every seven days in order to prevent smugglers from being able to avoid those checkpoints. President Bush signs the law, then issues a signing statement saying that the Border Patrol should view the “relocation provision as advisory rather than mandatory” because, in his view, only the president has the constitutional authority to decide how to deploy law enforcement officers. As a result of Bush’s signing statement, Border Patrol authorities disobey the law, and explain to investigators from the Government Accountability Office that the law is not mandatory, but “advisory.” White House spokesman Tony Fratto later says in response to the Border Patrol’s refusal to obey the law: “The signing statements certainly do and should have an impact. They are real.” [Savage, 2007, pp. 242-243; Boston Globe, 6/19/2007]
The White House continues to fight against the McCain anti-torture amendment (see October 1, 2005). Vice President Cheney and CIA Director Porter Goss meet privately with Senator John McCain (R-AZ), the primary sponsor of the amendment, for 45 minutes to push a change in the language that would exempt CIA interrogators from the amendment’s restrictions. In 2007, author and reporter Charlie Savage will write on the remarkable aspects of Cheney’s requests. For the first time, the CIA would be “clearly authorize[d] to engage in abusive interrogations. In effect, it would legalize the abuse of detainees in CIA prisons, a matter that had previously been a gray area at best.” McCain flatly rejects Cheney’s proposal, and later says: “I don’t see how you could possibly agree to legitimizing an agent of the government engaging in torture. No amendment at all would be better than that.” [Savage, 2007, pp. 220]
President Bush signs Executive Order 13388, which dramatically expands the powers of the US government to monitor and collect data on US citizens. [Executive Order 13388 of October 25, 2005, 10/25/2005] The order augments the power of “National Security Letters,” authorized in 1981 by then-President Ronald Reagan (see December 4, 1981), but rarely used against US citizens until the advent of the Bush administration and the USA Patriot Act. Thanks to the order, the data files are even more accessible to what the order calls “state, local, and tribal” governments as well as the undefined “appropriate private sector entities,” presumably private data-mining corporations that collect personal and financial data on US citizens for the government.
Over 30,000 NSLs a Year - The FBI now issues over 30,000 NSLs a year, a hundredfold increase from earlier administration usages. NSLs are issued by FBI field supervisors at their discretion without court warrant or oversight by the judiciary or Congress. NSLs force their recipients—librarians, booksellers, employers, Internet providers, and others—to turn over any and all personal data on their customers and employees and are legally required not to tell the targets of the investigations about the letters or the data collection. An FBI supervisor can, without oversight or reasonable suspicion of terrorist activity, collect data on what a citizen makes, spends, invests, gambles, reads in books and on the Internet, buys online, and with whom that citizen lives, works, associates, telephones, and exchanges e-mails. Senior FBI officials admit that the huge spike in NSLs stems from the FBI’s new authority to collect tremendous amounts of data on US citizens not accused of criminal activities. And NSLs are now used to generate leads against terrorist suspects and not merely pursue them.
NSLs Handled With Discretion, Officials Insist - FBI and White House officials insist that NSLs are handled with discretion and with a recognizance of Americans’ right to privacy. Joseph Billy Jr, the FBI’s deputy director for counterterrorism, says he understand that “merely being in a government or FBI database… gives everybody, you know, neck hair standing up.” But innocent Americans “should take comfort at least knowing that it is done under a great deal of investigative care, oversight, within the parameters of the law.” [Washington Post, 11/6/2005]
The media learns that Vice President Dick Cheney and staffers from the Office of the Vice President (OVP) regularly interfered with the Senate Intelligence Committee’s 2004 report on the intelligence community’s failures to accurately assess Iraq’s WMD threat (see July 9, 2004). According to administration and Congressional sources, that interference was facilitated and encouraged by committee chairman Pat Roberts (R-KS). Cheney and the OVP members regularly intervened in the committee’s deliberations, and drastically limited the scope of the investigation.
Protecting the Bush Administration - Reporter Laura Rozen will later write, “In order to prevent the White House and the Office of the Vice President itself from ever coming under any Congressional oversight scrutiny, Cheney exerted ‘constant’ pressure on [Roberts] to stall an investigation into the Bush administration’s use of flawed intelligence on Iraq.” Cheney and the OVP also withheld key documents from the committee. Some of the withheld materials included portions of then-Secretary of State Colin Powell’s February 2003 address to the United Nations (see February 5, 2003) that were written by Cheney’s then-chief of staff, Lewis Libby, and documents that Libby used to make the administration’s case for war with Iraq. The OVP also withheld the Presidential Daily Briefing (PDB) documents: written intelligence summaries provided to President Bush by the CIA. The decision to withhold the documents was spearheaded by Cheney’s chief legal counsel and chief of staff David Addington. Much of the withheld material, and Cheney-OVP interference, was designed to keep the committee from looking into the Bush administration’s use of intelligence findings to promote the war. According to committee member John D. Rockefeller (D-WV), Cheney attended regular policy meetings in which he gave White House orders to Republican committee staffers. It is “not hearsay,” Rockefeller says, that Cheney pushed Roberts to, in reporter Jonathan Landay’s words, “drag out the probe of the administration’s use of prewar intelligence.” The committee chose to defer the second portion of its report, about the administration’s use of intelligence to propel the nation to war, until after the November 2004 elections. That portion of the report remains uncompleted.
Shifting the Blame to the White House - Reporter Murray Waas writes, “Had the withheld information been turned over, according to administration and Congressional sources, it likely would have shifted a portion of the blame away from the intelligence agencies to the Bush administration as to who was responsible for the erroneous information being presented to the American public, Congress, and the international community.” He continues: “When the [report] was made public, Bush, Cheney, and other administration officials cited it as proof that the administration acted in good faith on Iraq and relied on intelligence from the CIA and others that it did not know was flawed. But some Congressional sources say that had the committee received all the documents it requested from the White House the spotlight could have shifted to the heavy advocacy by Cheney’s office to go to war. Cheney had been the foremost administration advocate for war with Iraq, and Libby played a central staff role in coordinating the sale of the war to both the public and Congress.” [National Journal, 10/27/2005; Wilson, 2007, pp. 381]
Entity Tags: Office of the Vice President, John D. Rockefeller, George W. Bush, David S. Addington, Colin Powell, Bush administration (43), Jonathan Landay, Murray Waas, Laura Rozen, Senate Intelligence Committee, Lewis (“Scooter”) Libby, Richard (“Dick”) Cheney, Pat Roberts
Timeline Tags: Events Leading to Iraq Invasion
David Addington. [Source: Richard A. Bloom / Corbis]David Addington, the chief counsel for Vice President Dick Cheney, is named Cheney’s chief of staff to replace Lewis “Scooter” Libby, who was convicted of perjury and obstruction of justice in the Valerie Plame Wilson case (see February 13, 2002). [National Journal, 10/30/2005; MSNBC, 11/4/2005] Addington is described by one White House official as “the most powerful man you never heard of.” A former Justice Department official says of Addington, “He seems to have his hand in everything, and he has these incredible powers, energy, reserves in an obsessive, zealot’s kind of way.” He is, according to former Solicitor General Theodore Olson, Cheney’s “eyes, ears, and voice.” [US News and World Report, 5/21/2006] Addington is a neoconservative ideologue committed to dramatically expanding the power of the presidency, and a powerful advocate of the “unitary executive” theory of presidential power. He has been with Cheney for years, ever since Cheney chose him to serve as the Pentagon’s chief counsel while Cheney was Defense Secretary under Ronald Reagan. During that time, Addington was an integral part of Cheney’s battle to keep the Iran-Contra scandal from exploding (see 1984). [Washington Post, 10/11/2004; National Journal, 10/30/2005; MSNBC, 11/4/2005; US News and World Report, 5/21/2006] According to Larry Wilkerson, the former chief of staff to former Secretary of State Colin Powell, documentary evidence shows that Cheney’s office, and Addington in particular, were responsible for giving at least tacit approval for US soldiers to abuse and torture prisoners in Iraq (see January 9, 2002). In an administration devoted to secrecy, Addington stands out in his commitment to keeping information away from the public. [Washington Post, 10/11/2004] Though Addington claims to have a lifelong love affair with the Constitution, his interpretation of it is somewhat unusual. One senior Congressional staffer says, “The joke around here is that Addington looks at the Constitution and sees only Article II, the power of the presidency.” [US News and World Report, 5/21/2006] Addington’s influence in the White House is pervasive. He scrutinizes every page of the federal budget, hunting for riders that might restrict the power of the president. He worked closely with Gonzales to oppose attempts by Congress to pry information from the executive branch, and constantly battles the State Department, whose internationalist philosophy is at odds with his and Cheney’s own beliefs. [Washington Post, 10/11/2004] Former Reagan Justice Department official Bruce Fein calls Addington the “intellectual brainchild” of overreaching legal assertions that “have resulted in actually weakening the presidency because of intransigence.” According to Fein, Addington and Cheney are doing far more than reclaiming executive authority, they are seeking to push it farther than it has ever gone under US constitutional authority. They have already been successful in removing executive restraints formerly in place under the War Powers Act, anti-impoundment legislation, the legislative veto and the independent counsel statute. “They’re in a time warp,” Fein says. “If you look at the facts, presidential powers have never been higher.” [Washington Post, 10/11/2004] “He thinks he’s on the side of the angels,” says a former Justice Department official. “And that’s what makes it so scary.” [US News and World Report, 5/21/2006]
Entity Tags: Saddam Hussein, US Department of State, Theodore (“Ted”) Olson, US Department of Justice, US Department of Defense, Ronald Reagan, Lewis (“Scooter”) Libby, National Security Council, Bruce Fein, Bradford Berenson, 9/11 Commission, Richard (“Dick”) Cheney, David S. Addington, John Bellinger, Jack Goldsmith, Lawrence Wilkerson, John C. Yoo, Valerie Plame Wilson
Timeline Tags: Civil Liberties, Niger Uranium and Plame Outing
Some time between when al-Qaeda leader Ibn al-Shaykh al-Libi is moved to a prison in Mauritania in November 2005 (see November 2005) and September 2006 when most imprisoned al-Qaeda leaders are transferred to Guantanamo (see September 2-3, 2006), al-Libi disappears from known US custody. Al-Libi was captured in late 2001 and confessed that the Iraqi government helped train al-Qaeda in chemical and biological weapons (see January 2002 and After). In 2004, he recanted his confession amid allegations that he was brutally tortured, and the CIA later determined his Iraq allegations were untrue (see February 14, 2004). In May 2007, a group of Democratic Congresspeople will write President Bush, asking if al-Libi was tortured and/or renditioned to Egypt to be tortured, and also asking, “Where is al-Libi today?” Human-rights groups and others suspect the Bush administration is hiding al-Libi and concealing key information about him because of the potential political and legal ramifications about his torture, as well as his false confession that helped lead to war with Iraq. While the White House has yet to respond to queries about al-Libi, Newsweek will later claim that al-Libi, a Libyan, has been quietly returned to Libya and is being secretly imprisoned there. He is reportedly extremely ill with tuberculosis and diabetes. It is said the Libyan government has kept silent about holding al-Libi as a favor to the Bush administration, to help avoid more public scrutiny about him. [Newsweek, 5/29/2007]
Vice President Cheney appears at the weekly Republican senatorial luncheon in the Capitol and speaks against the McCain anti-torture amendment (see October 1, 2005 and October 20, 2005). He argues that CIA interrogations of high-value al-Qaeda prisoners have produced valuable information, and the president needs the power and flexibility to use torture against prisoners in order to fight terrorism and protect the nation. Senator John McCain (R-AZ), the primary sponsor of the amendment, counters Cheney’s arguments during the same luncheon, arguing that the idea of the US torturing prisoners damages its standing with its international allies. [Savage, 2007, pp. 220] The next day, the Washington Post will publish an expose of the CIA’s secret prison network (see November 2-18, 2005), causing a firestorm of criticism and sparking a former Bush administration official to say that the “philosophical guidance” behind the torture of prisoners comes directly from Cheney’s office (see November 3, 2005).
The White House continues to battle a Senate-approved amendment against torture (see October 1, 2005). Vice President Cheney, the administration’s strongest voice in favor of torture, gathers a group of Republican senators and gives what is later described as an impassioned plea to let the CIA torture when necessary. President Bush needs that option, Cheney argues, and a prohibition against torture may eventually cost the nation “thousands of lives.” He cites alleged 9/11 mastermind Khalid Shaikh Mohammed as one of torture’s success stories (see February 29 or March 1, 2003, Shortly After February 29 or March 1, 2003, and June 16, 2004). Cheney fails to tell the gathering that the US has overseen the torture of Mohammed’s wife and children, and that Mohammed was told that if he didn’t cooperate, his children would be subjected to further abuse (see After September 11, 2002). He also fails to tell them that the information elicited from Mohammed was considered unreliable (see Summer 2003), and that many of Mohammed’s interrogators felt that torture merely hardened his resistance. During the meeting, John McCain (R-AZ), the author of the anti-torture amendment, tells Cheney, “This is killing us around the world.” On November 4, the Republican House leadership postpones a vote on the amendment when it realizes the amendment will pass overwhelmingly. [Dubose and Bernstein, 2006, pp. 196]
The US charges British citizen Binyam Ahmed Mohamed (see May-September, 2001), who has allegedly used the aliases Talha al-Kini, Foaud Zouaoui, Taha al-Nigeri, and John Samuel, with conspiracy to foment and carry out terrorist attacks against US targets. Mohamed, who was arrested in Pakistan in April 2002, is charged with “attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; destruction of property by an unprivileged belligerent; and terrorism,” though the charge sheet is unclear whether Mohamed carried out any of these actions himself, or whether he was part of a larger conspiracy by the al-Qaeda terrorist organization. The charges allege links between Mohamed and “shoe bomber” Richard Reid (see December 22, 2001), radical Islamist Abu Zubaida, 9/11 plotter Khalid Shaikh Mohammed, and alleged “dirty bomber” Jose Padilla. Mohamed is alleged to have been part of the Padilla bomb plot. [US Defense Department, 11/4/2005 ] Much of the evidence against Mohamed comes from confessions he allegedly made while in US custody at the detention camp at Bagram Air Force Base (see January-September 2004), and in Guantanamo Bay (see September 2004 and After). He was also held in Pakistan (see April 10-May, 2002 and May 17 - July 21, 2002), and “rendered” to a secret prison in Morocco (see July 21, 2002 -- January 2004). Through his lawyers, Mohamed has claimed that he was tortured in all four detention sites. The British judiciary will later establish that British officials facilitated Mohamed’s interrogation in Pakistan, and had “full knowledge of the reported conditions of his detention and treatment” (see February 24, 2009). [Guardian, 2/5/2009] As with Padilla, the charges relating to the “dirty bomb” plot will later be dropped due to lack of evidence, and all charges against Mohamed will eventually be dropped (see October-December 2008 and February 4, 2009).
Brett Tolman. [Source: ABC4 (.com)]Brett Tolman, a Republican Senate Judiciary Committee official, tells Assistant Attorney General William Moschella that he will perform a “comprehensive fix” to the USA Patriot Act reauthorization coming up for approval in Congress (see March 9, 2006). Tolman and Moschella are referring to a provision in the reauthorization legislation that would allow the attorney general to appoint interim US Attorneys on an indefinite basis without having them go through Senate confirmation, and remove the ability of a federal court to appoint a US Attorney (see July 2005 - March 2006). Moschella suggests Tolman use the “comprehensive fix” of repealing Section 546 of Title 28 of the United States Code, subsections C and D, and replacing them with the following language: “A person appointed as United States Attorney under this section may serve until the qualification of a United States Attorney for such district appointed by the president under section 541 of this title.” Late the same evening, Tolman receives an email from Moschella instructing him to quietly insert the provision in the USA Patriot Act reauthorization bill that would eliminate a 120-day limit for “interim” US Attorneys to serve without Senate confirmation. In essence, the provision would allow such “interims” to serve indefinitely, cutting the Senate entirely out of the process of naming US Attorneys and allowing the attorney general to make political appointments without oversight. Tolman replies, “I will get the comprehensive fix done.” He slips the provision into a draft of the bill while it is in conference committee. None of the members notice the provision, and it is part of the bill as signed into law in March 2006 (see March 9, 2006). Tolman himself is one of the first beneficiaries of the new provision, becoming the US Attorney for Utah. When the new provision comes to light in early 2007, both chambers of Congress vote overwhelmingly to repeal it. This is one of numerous “stealth provisions” the White House will have inserted into legislation with the help of compliant Congressional Republicans and staffers. [Savage, 2007, pp. 316; US Department of Justice, 3/23/2007 ] Moschella will later take the credit for the provision, and will tell reporters that he made the change on behalf of the Justice Department “without the knowledge or coordination of his superiors at the Justice Department or anyone at the White House.” [Talking Points Memo, 2011]
A White House document shows that oil company executives lied in recent Senate hearings when they denied meeting with Vice President Cheney’s energy task force (the National Energy Policy Development Group—see May 16, 2001) in 2001. The document, obtained by the Washington Post, shows that officials from ExxonMobil, Conoco (before it merged with Phillips), Shell Oil, and British Petroleum met with the task force (see March 22, 2001). Last week, the CEOs of ExxonMobil, Chevron, and ConocoPhillips denied participating in the task force’s deliberations. Shell Oil’s CEO said his company did not participate “to my knowledge,” and the chief of BP America said he did not know. Though Chevron is not named in the White House document, that firm and others “gave detailed energy policy recommendations” to the task force, according to the Government Accountability Office. Cheney also met separately with John Browne, BP’s chief executive, in a meeting not included in the document. Environmentalists have long stated that they were almost entirely shut out of the deliberations, while corporate interests were heavily represented (see April 4, 2001). The Supreme Court ruled in 2004 that the government could keep the records of the task force secret (see June 24, 2004). Senator Frank Lautenberg (D-NJ) says, “The White House went to great lengths to keep these meetings secret, and now oil executives may be lying to Congress about their role in the Cheney task force.” Since the oil executives were not under oath—a decision by Senate Commerce Committee chairman Ted Stevens (R-AK) protested by committee Democrats—they cannot be charged with perjury. However, they can be fined or imprisoned for up to five years for making “any materially false, fictitious or fraudulent statement or representation” to Congress. After the Washington Post releases the document, former Conoco manager Alan Huffman confirms, “We met [with the task force] in the Executive Office Building, if I remember correctly.” A ConocoPhillips spokesman says that CEO James Mulva had been unaware of the meetings when he testified at the hearing. ExxonMobil says it stands by CEO Lee Raymond’s denials; James Rouse, an Exxon official named in the document (see Mid-February, 2001), denies meeting with the task force, calling the document “inaccurate.” [Washington Post, 11/16/2005]
Entity Tags: Frank R. Lautenberg, Ted Stevens, Chevron, British Petroleum, Alan Huffman, ExxonMobil, Royal Dutch/Shell, US Supreme Court, National Energy Policy Development Group, Government Accountability Office, James Mulva, ConocoPhillips, John Browne, Lee Raymond, Richard (“Dick”) Cheney, James Rouse
Timeline Tags: US Environmental Record
The Defense Department admits to having detained over 80,000 people in facilities from Afghanistan to Guantanamo since the 9/11 attacks. At least 14,500 people are currently in US custody in connection with the war on terror; around 13,814 are being held in Iraq and some 500 detainees are at the Guantanamo detention facility. An unknown number are being held in Afghanistan and elsewhere. The Bush administration has defended its incarceration of so many detainees, many without charge or legal representation, from criticism by human rights organizations, civil liberties groups, and political opponents. What many find indefensible is the CIA’s practice of “rendering” terror suspects to foreign countries for interrogation and torture, as well as making some prisoners “disappear” into secret prisons in foreign countries. Currently, the Bush administration is attempting to counter reports that the CIA has used private jets to transport suspects to at least six countries, either in Europe or through European countries’ airspace. “If these allegations turn out to be true, the crucial thing is whether these flights landed in the member states with or without the knowledge and approval of the authorities,” says Terry Davis, the Council of Europe’s secretary general. The CIA has refused to comment on this or other reports. [Guardian, 11/18/2005]
McCain speaking against torture on Fox News. [Source: Daily Gadfly (.com)]Senator John McCain (R-AZ), a former prisoner of war during the Vietnam War and a victim of torture, writes an impassioned op-ed for Newsweek exhorting the US not to resort to torture in its interrogations of terror suspects. He writes: “I do, respectfully, take issue with the position that the demands of this war require us to accord a lower station to the moral imperatives that should govern our conduct in war and peace when they come in conflict with the unyielding inhumanity of our vicious enemy.… We should not torture or treat inhumanely terrorists we have captured. The abuse of prisoners harms, not helps, our war effort.”
Produces False Information - He gives numerous reasons: abusing prisoners does not produce reliable information, but instead “often produces bad intelligence because under torture a person will say anything he thinks his captors want to hear—whether it is true or false—if he believes it will relieve his suffering.” McCain recounts his own example of providing false information under torture, giving his captors the names of the Green Bay Packers’ offensive line instead of the names of his flight squadron. “It seems probable to me that the terrorists we interrogate under less than humane standards of treatment are also likely to resort to deceptive answers that are perhaps less provably false than that which I once offered.”
Betrays America's 'Commitment to Basic Humanitarian Values' - Moreover, McCain writes, America’s “commitment to basic humanitarian values affects—in part—the willingness of other nations to do the same. Mistreatment of enemy prisoners endangers our own troops who might someday be held captive.” We cannot expect al-Qaeda and other such enemies to be “bound by the principle of reciprocity,” but “we should have concern for those Americans captured by more traditional enemies, if not in this war then in the next.” Global public criticism of North Vietnam’s brutality towards US prisoners resulted in a substantial decrease in their abuse of POWs. The war against terrorism is “a war of ideas,” he writes, “a struggle to advance freedom in the face of terror in places where oppressive rule has bred the malevolence that creates terrorists. Prisoner abuses exact a terrible toll on us in this war of ideas. They inevitably become public, and when they do they threaten our moral standing, and expose us to false but widely disseminated charges that democracies are no more inherently idealistic and moral than other regimes.” To defeat the idea of terrorism, “we must prevail in our defense of American political values as well. The mistreatment of prisoners greatly injures that effort.”
'We Are Different and Better than Our Enemies' - McCain writes that while he does not “mourn the loss of any terrorist’s life… [w]hat I do mourn is what we lose when by official policy or official neglect we allow, confuse, or encourage our soldiers to forget that best sense of ourselves, that which is our greatest strength—that we are different and better than our enemies, that we fight for an idea, not a tribe, not a land, not a king, not a twisted interpretation of an ancient religion, but for an idea that all men are created equal and endowed by their Creator with inalienable rights.”
Waterboarding Is Torture - McCain states flatly that any interrogation technique that simulates an execution, including waterboarding, is torture. “[I]f you gave people who have suffered abuse as prisoners a choice between a beating and a mock execution, many, including me, would choose a beating. The effects of most beatings heal. The memory of an execution will haunt someone for a very long time and damage his or her psyche in ways that may never heal. In my view, to make someone believe that you are killing him by drowning is no different than holding a pistol to his head and firing a blank. I believe that it is torture, very exquisite torture.”
Exceptions Do Not Require New Laws - There is always the extreme circumstance bandied about in discussions: what should be done with a terror suspect who holds critical information about an imminent terrorist attack? While such an extreme circumstance may well require extreme interrogation methods, McCain writes, “I don’t believe this scenario requires us to write into law an exception to our treaty and moral obligations that would permit cruel, inhumane, and degrading treatment. To carve out legal exemptions to this basic principle of human rights risks opening the door to abuse as a matter of course, rather than a standard violated truly in extremis. It is far better to embrace a standard that might be violated in extraordinary circumstances than to lower our standards to accommodate a remote contingency, confusing personnel in the field and sending precisely the wrong message abroad about America’s purposes and practices.” [Newsweek, 11/21/2005]
As Congress debates legislation that will outlaw “cruel, inhuman, and degrading” treatment of terrorist suspects and detainees in US custody, the Justice Department issues a secret opinion, one that few lawmakers even know exists, ruling that none of the CIA’s interrogation methods violate that standard. The Justice Department has already issued one secret opinion countermanding the Bush administration’s stated position that torture is “abhorrent” (see February 2005). Both rulings are efforts by Attorney General Alberto Gonzales and White House officials to realign the Justice Department with the White House after an in-house revolt by many Justice officials threw administration policies on torture and domestic surveillance into doubt (see Late 2003-2005). Though the public debate on torture becomes ever more pervasive during President Bush’s second term, the two rulings will remain in effect through the end of 2007 and beyond, helping the White House give US officials the broadest possible legal latitude for abusing and torturing prisoners. As late as October 2007, the White House will insist that it has always followed US and international law in its authorization of interrogation practices. Those assurances will be countered by an array of current and former officials involved in counterterrorism (see October 3, 2007). [New York Times, 10/4/2007] In 2007, Jameel Jaffer of the American Civil Liberties Union (ACLU) will say in conjunction with a lawsuit filed against the Justice Department’s interrogation practices, “These torture memos should never have been written, and it is utterly unacceptable that the administration continues to suppress them while at the same time declaring publicly that it abhors torture. It is now obvious that senior administration officials worked in concert over a period of several years to evade and violate the laws that prohibit cruelty and torture. Some degree of accountability is long overdue.” The ACLU will also note that the administration had failed to disclose the existence of the two opinions in its court filings, a failure characterized by the administration as an accidental oversight. [Harper's, 11/7/2007]
Judge Colleen Kollar-Kotelly, the presiding judge over the Foreign Intelligence Surveillance Court (FISC), learns from Justice Department liaison James Baker that at least one more government application for a FISA surveillance warrant is based on illegally obtained evidence. Kollar-Kotelly has warned the Justice Department about this practice in the past (see 2004 and 2005). This time, administration officials claim that the evidence in question is presented due to an error by a low-level Defense Department employee. Kollar-Kotelly asks Defense Secretary Donald Rumsfeld to ensure that such an “error” does not happen again. [Washington Post, 2/9/2006]
Deputy Defense Secretary Gordon England, who for a year has advocated that the US issue clear rules about detention and interrogation of terror suspects (see Summer 2005), calls a meeting of three dozen Pentagon officials, including the vice chief and top uniformed lawyer for each military branch. England wants to discuss a proposed new directive defining the US military’s detention policies. The secretaries of the Army, Navy, and Air Force are present, as are generals from each branch of service and a number of military lawyers, including Naval General Counsel Alberto Mora. The agenda is set by Matthew Waxman, the deputy assistant secretary for detainee affairs. Waxman says that the president’s general statement that detainees should be treated humanely “subject to military necessity” (see February 7, 2002) has left US military interrogators and others unsure about how to proceed with detainees. Waxman has proposed making it official Pentagon policy to treat detainees in accordance with Common Article III of the Geneva Conventions, which bars cruel, inhuman, and degrading treatment, as well as “outrages against human dignity.” The standard has already been in effect since the Geneva Conventions were first put into place over 50 years ago, and US military personnel are trained to follow it. In 2007, the Washington Post will observe, “That was exactly the language… that [Vice President] Cheney had spent three years expunging from US policy.” Mora will later recall of the meeting, “Every vice chief came out strongly in favor, as did every JAG,” or Judge Advocate General.
Opposition - Every military officer supports the Waxman standard, but two civilians oppose it: Stephen Cambone, the undersecretary of defense for intelligence, and William Haynes, the Pentagon’s general counsel and a close associate of Cheney’s chief counsel, David Addington. Cambone and Haynes argue that the standard will limit the US’s “flexibility” in handling terror suspects, and it might expose administration officials to charges of war crimes. If Common Article III becomes the standard for treatment, then it might become a crime to violate it.
War Crimes Questions - An exasperated Mora points out that whether the proposal is adopted or not, the Geneva Conventions are already solidly part of both US and international law. Any serious breach is in legal fact a war crime. Mora reads from a copy of the US War Crimes Act, which already forbids the violation of Common Article III. It is already the law, Mora emphasizes, and no one is free to ignore it. Waxman believes his opponents are isolated, and issues a draft of DOD Directive 2310, incorporating the Geneva-based language.
Browbeating Waxman - Within a few days, Addington and Lewis “Scooter” Libby, Cheney’s chief of staff, bring Waxman in for a meeting. The meeting goes poorly for Waxman. Addington ridicules the vagueness of the Geneva ban on “outrages upon personal dignity,” saying it leaves US troops timid in the face of unpredictable legal risk. Waxman replies that the White House policy is far more opaque, and Addington accuses him of trying to replace the president’s decision with his own. Mora later says, “The impact of that meeting is that Directive 2310 died.” Shortly thereafter, Waxman will leave the Pentagon for a post at the State Department. [New Yorker, 2/27/2006; Washington Post, 6/25/2007]
Entity Tags: Alberto Mora, David S. Addington, Lewis (“Scooter”) Libby, William J. Haynes, War Crimes Act, Matthew Waxman, Gordon England, Richard (“Dick”) Cheney, US Department of Defense, Geneva Conventions, Stephen A. Cambone
Timeline Tags: Torture of US Captives, Civil Liberties
After years of work, by 2005, a scientific team working with the FBI has identified four genetic markers, known as indels, that make the anthrax used in the 2001 anthrax attacks unique (see Early 2003-2005). The anthrax is from the Ames strain, and the FBI has been slowly building a repository of 1,070 Ames anthrax samples from around the world. By late 2005 to 2006, it is discovered that only eight samples match the anthrax used in the attacks. Seven of these eight samples come from USAMRIID, the US Army’s top bioweapons laboratory, and the eighth sample comes from another unnamed laboratory in the US. One of these samples is the ancestor of all eight, and this is a flask known as RMR-1029 kept by USAMRIID scientist Bruce Ivins (see Early 2004). The FBI soon determines that about 100 scientists had access to this flask and its seven descendants. Investigators begin a new phase, using traditional criminology techniques to narrow down the possible suspects. [New York Times, 8/20/2008]
In November 2005, CIA officer Jose Rodriguez will destroy videotapes of interrogations of at least two high-ranking al-Qaeda detainees (see November 2005), despite numerous court orders and commands from superiors and oversight agencies to keep them. The CIA will later claim that Rodriguez acted on his own without notifying CIA lawyers or his bosses, yet there is no evidence that he was ever punished in any way. The New York Times will later comment, “Some in Congress are curious to know why, if Mr. Rodriguez had really ignored White House advice not to destroy the tapes, he was apparently never reprimanded.” [New York Times, 12/13/2007]
Supreme Court Chief Justice John Roberts (see September 29, 2005) has his first opportunity to name a judge to the secret Foreign Intelligence Surveillance Court. Judge James Robertson has resigned from the court in protest of the administration’s warrantless wiretapping program (see December 21, 2005). Roberts chooses as his replacement Judge Robert Bates, who voted to dismiss the General Accounting Office’s lawsuit attempting to force Vice President Cheney to release documents surrounding his energy task force (see May 10, 2005). [Savage, 2007, pp. 262]
Arthur Sulzberger. [Source: New York Times]George W. Bush summons New York Times publisher Arthur Sulzberger and Times editor Bill Keller to the Oval Office to try to dissuade them from running a landmark story revealing the NSA’s illegal wiretapping program (see December 15, 2005) that he authorized in 2002 (see Early 2002). In the meeeting, Bush warns Sulzberger and Keller that “there’ll be blood on your hands” if another terrorist attack were to occur, obviously implying that to reveal the nature of the program would invite terrorist strikes. Bush is unsuccessful in his attempt to quash the story. [Newsweek, 12/21/2005; Newsweek, 12/22/2008]
Mohammed Jawad, an Afghan teenager in US custody at Guantanamo for nearly three years (see December 17, 2002 and October 19, 2004), is found by a US Administrative Review Board (ARB) to pose a continuing danger to the national security of the United States, and is denied release. The decision is based on US claims that Jawad belongs to a group with ties to al-Qaeda, and on a signed “confession” obtained from Jawad. The boy claims that Afghan police tortured and beat him until he signed the confession. The ARB decision will be reaffirmed in late 2006. [Human Rights First, 9/2008] Jawad “signed” his confession with a fingerprint, as he cannot write his name. The confession was written in a language he cannot speak or read, and, as Salon’s Glenn Greenwald will later note, “was given to him after several days of beatings, druggings, and threats—all while he was likely 15 or 16 years old.” [Salon, 1/21/2009]
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
On December 13, 2005, British Home Secretary Charles Clarke says there will not be a public inquiry into the 7/7 London bombings. The next day, British Prime Minister Tony Blair confirms this, saying, “If we ended up having a full scale public inquiry… we would end up diverting a massive amount of police and security service time.” He promises victims will get a full account of what happened and says, “We do essentially know what happened.” Instead of an independent judicial inquiry, a senior civil servant will compile a “narrative” on the bombings. Clarke admits the “narrative” will not be an independent assessment, but says, “Certainly, there is no question of a cover-up of any kind.” Victims’ relatives, opposition MPs, and Muslim leaders protest the decision. [Guardian, 12/14/2005; BBC, 12/14/2005; London Times, 12/14/2005] The conservative Daily Telegraph is critical, saying: “The refusal… to grant a public inquiry into the events surrounding the London bombings on July 7 is but the latest example of the government trying to avoid scrutiny of a particular event in which the state or its servants have a definite interest.… A ‘narrative’ is no substitute, especially for the families of those killed in the bombings, for a robust inquisitorial process aimed at determining the truth. No lessons will be learnt from it for the future protection of our people against such terrorist attacks.” [Daily Telegraph, 12/15/2005]
New York Times headline from article revealing NSA surveillance. [Source: CBS News]The New York Times reveals that after the 9/11 attacks, President Bush granted the National Security Agency (NSA) secret authorization to eavesdrop on Americans and others inside the US without going through the Foreign Intelligence Surveillance Act (FISA) court to obtain legal warrants (see Early 2002. The administration justifies its actions by claiming such eavesdropping, which includes wiretapping phones and reading e-mails, is necessary to find evidence of terrorist activities, and says the nation needs the program after the 9/11 attacks exposed deficiencies in the US intelligence community’s information gathering process, and because of what they characterize as the “handcuffing” of US intelligence agencies by restrictive laws. The Times has had the article for over a year; the White House prevailed on the Times not to publish its findings for that time, arguing that publication would jeopardize continuing investigations and warn potential terrorists that they were under scrutiny. Many believe that the White House wanted to delay the publication of the article until well after the 2004 presidential elections. The Times delayed publication for over a year, and agreed to suppress some information that administration officials say could be useful to terrorists. (Less than two weeks before the article is published, Bush tries to convince the Times not to print the article at all: see December 6, 2005.) Two days after the Times publishes its article, Bush will acknowledge the order, and accuse the Times of jeopardizing national security (see December 17, 2005). The NSA program eavesdrops without warrants on up to 500 people in the US at any given time, officials say; the overall numbers have likely reached into the thousands. Overseas, up to 7,000 people suspected of terrorist ties are being monitored. Officials point to the discovery of a plot by Ohio trucker and naturalized US citizen and alleged al-Qaeda supporter Iyman Faris to bring down the Brooklyn Bridge with blowtorches as evidence of the program’s efficacy. They also cite the disruption of an al-Qaeda plot to detonate fertilizer bombs outside of British pubs and train stations by the program. But, officials say, most people targeted by the NSA for warrantless wiretapping have never been charged with a crime, and many are targeted because of questionable evidence and groundless suspicion. Many raise an outcry against the program, including members of Congress, civil liberties groups, immigrant rights groups, and others who insist that the program undermines fundamental Constitutional protections of US citizens’ civil liberties and rights to privacy. Several other government programs to spy on Americans have been challenged, including the Federal Bureau of Investigation (FBI)‘s surveillance of US citizens’ library and Internet usage, the monitoring of peaceful antiwar protests, and the proposed use of public and private databases to hunt for terrorist links. In 2004, the Supreme Court overturned the administration’s claim that so-called “enemy detainees” were not entitled to judicial review of their indefinite detentions. Several senior officials say that when the warrantless wiretapping program began, it operated with few controls and almost no oversight outside of the NSA itself. The agency is not required to seek the approval of the Justice Department or anyone else outside the FISA court for its surveillance operations. Some NSA officials wanted nothing to do with a program they felt was patently illegal, according to a former senior Bush administration official. Internal concerns about the program prompted the Bush administration to briefly suspend the program while Justice Department officials audited it and eventually provided some guidelines for its operations. A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees the FISA Court, helped spur the suspension, according to officials. Kollar-Kotelly questioned whether information obtained under the program was being improperly used as the basis for FISA wiretap warrant requests from the Justice Department. Some government lawyers say that the Justice Department may have deliberately misled Kollar-Kotelly and the FISA court about the program in order to keep the program under wraps. The judge insisted to Justice Department officials that any material gathered under the program not be used in seeking wiretap warrants from her court. The question also arose in the Faris case, when senior Justice Department officials worried that evidence obtained by warrantless wiretapping by the NSA of Faris could be used in court without having to lie to the court about its origins. [New York Times, 12/15/2005]
Times executive editor Bill Keller. [Source: New York Times]The New York Times’s executive editor, Bill Keller, defends his paper’s decision to reveal the Bush administration’s warrantless wiretapping program, conducted through the NSA (see December 15, 2005), after holding the story for over a year. Keller writes: “We start with the premise that a newspaper’s job is to publish information that is a matter of public interest. Clearly a secret policy reversal that gives an American intelligence agency discretion to monitor communications within the country is a matter of public interest.… A year ago, when this information first became known to Times reporters, the administration argued strongly that writing about this eavesdropping program would give terrorists clues about the vulnerability of their communications and would deprive the government of an effective tool for the protection of the country’s security. Officials also assured senior editors of The Times that a variety of legal checks had been imposed that satisfied everyone involved that the program raised no legal questions. As we have done before in rare instances when faced with a convincing national security argument, we agreed not to publish at that time. We also continued reporting, and in the ensuing months two things happened that changed our thinking. First, we developed a fuller picture of the concerns and misgivings that had been expressed during the life of the program. It is not our place to pass judgment on the legal or civil liberties questions involved in such a program, but it became clear those questions loomed larger within the government than we had previously understood. Second, in the course of subsequent reporting we satisfied ourselves that we could write about this program—withholding a number of technical details—in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record. The fact that the government eavesdrops on those suspected of terrorist connections is well-known. The fact that the NSA can legally monitor communications within the United States with a warrant from the Foreign Intelligence Surveillance Court is also public information. What is new is that the NSA has for the past three years had the authority to eavesdrop on Americans and others inside the United States without a warrant. It is that expansion of authority—not the need for a robust anti-terror intelligence operation—that prompted debate within the government, and that is the subject of the article.” [CNN, 12/16/2005]
A number of senators from both political parties lash out at President Bush’s acknowledgment that he reauthorized the NSA’s warrantless wiretapping program over thirty times since its inception in late 2001 (see December 17, 2005). Senator Russ Feingold (D-WI) says that such warrantless wiretapping is outside of the law. “He’s trying to claim somehow that the authorization for the Afghanistan attack after 9/11 permitted this, and that’s just absurd,” Feingold says. “There’s not a single senator or member of Congress who thought we were authorizing wiretaps.… If he needs a wiretap, the authority is already there—the [Foreign] Intelligence Surveillance Act (FISA). They can ask for a warrant to do that, and even if there’s an emergency situation, they can go for 72 hours as long as they give notice at the end of 72 hours.” Senator Arlen Specter (R-PA) says the behavior of the White House and NSA “can’t be condoned.” Specter, the chairman of the Senate Judiciary Committee, says his committee will immediately begin investigating the matter. Senator Charles Schumer (D-NY) says the report swayed his decision on the reauthorization of the USA Patriot Act. “Today’s revelation that the government listened in on thousands of phone conversations without getting a warrant is shocking and has greatly influenced my vote,” he says. [CNN, 12/16/2005]
President Bush acknowledges that he issued a 2002 executive order authorizing the National Security Agency (NSA) to wiretap US citizens’ phones and e-mails without proper warrants, and accuses the New York Times of jeopardizing national security by publishing its December 15 article (see Early 2002 and December 15, 2005). Bush says he was within the law to issue such an order, which many feel shatters fundamental Constitutional guarantees of liberty and privacy, but accuses the Times of breaking the law by publishing the article. Bush tells listeners during his weekly radio address that the executive order is “fully consistent” with his “constitutional responsibilities and authorities.” But, he continues, “Yesterday the existence of this secret program was revealed in media reports, after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk.” He admits allowing the NSA to “to intercept the international communications of people with known links to al-Qaeda and related terrorist organizations” in a program designed to “detect and prevent terrorist attacks.” Under the law, the NSA must obtain warrants from the Foreign Intelligence Surveillance Act (FISA) Court, but after Bush’s executive order, it was no longer required to do so. Bush justifies the order by citing the example of two 9/11 hijackers, Khalid Almihdhar and Nawaf Alhazmi, who, he says, “communicated while they were in the United States to other members of al-Qaeda who were overseas, but we didn’t know they were here until it was too late.” Because of the unconstitutional wiretapping program, it is “more likely that killers like these 9/11 hijackers will be identified and located in time, and the activities conducted under this authorization have helped detect and prevent possible terrorist attacks in the United States and abroad.” Bush also admits to reauthorizing the program “more than thirty times,” and adds, “I intend to do so for as long as our nation faces a continuing threat from al-Qaeda and related groups.” [CNN, 12/16/2005] Bush fails to address the likelihood that the domestic surveillance program began well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002).
After an NSA program to intercept telephone calls where one party is in the US and the other party is abroad is revealed (see December 15, 2005), President George Bush defends the program in a radio address. He justifies the program by implying that, if it had been in place before 9/11, it may have prevented the attacks: “As the 9/11 Commission pointed out, it was clear that terrorists inside the United States were communicating with terrorists abroad before the September the 11th attacks, and the commission criticized our nation’s inability to uncover links between terrorists here at home and terrorists abroad. Two of the terrorist hijackers who flew a jet into the Pentagon, Nawaf Alhazmi and Khalid Almihdhar, communicated while they were in the United States to other members of al-Qaeda who were overseas. But we didn’t know they were here until it was too late.” There are conflicting accounts of the circumstances of the hijackers’ calls and the NSA actually intercepted them, so it is unclear why they were not exploited to prevent the attacks (see Early 2000-Summer 2001, (Spring 2000), Summer 2002-Summer 2004, and March 15, 2004 and After). [WhiteHouse(.gov), 12/17/2005; US President, 12/26/2005 ] It is unclear which statements of the 9/11 Commission the president thinks he is referring to. The Commission’s final report touches on the NSA intercepts of the hijackers’ calls from the US in two places; in one it says: “[T]he NSA was supposed to let the FBI know of any indication of crime, espionage, or ‘terrorist enterprise’ so that the FBI could obtain the appropriate warrant. Later in this story, we will learn that while the NSA had the technical capability to report on communications with suspected terrorist facilities in the Middle East, the NSA did not seek FISA Court warrants to collect communications between individuals in the United States and foreign countries, because it believed that this was an FBI role,” (note: we do not actually learn this later in the 9/11 Commission report, this is the only mention). The second passage refers to Almihdhar’s time in San Diego and does not actually mention that the NSA intercepted the relevant calls, “Almihdhar’s mind seems to have been with his family in Yemen, as evidenced by calls he made from the apartment telephone.” [9/11 Commission, 7/24/2004, pp. 87-8, 222]
After the NSA’s warrantless wiretapping program is revealed (see Early 2002 and December 15, 2005), some commentators criticize the program. Americans have fundamental Constitutional protections that are enforceable in court whether their conversations are domestic or international, says law scholar Geoffrey Stone. Stone says that President Bush’s emphasis that NSA wiretapping only takes place on US calls to overseas phones or overseas e-mails “is no different, as far as the law is concerned, from saying we only do it on Tuesdays.” Former FBI national security law chief Michael Woods, who served in the position when Bush signed the NSA directive, calls the program “very dangerous.” Though Woods says the program was justifiable in the immediate aftermath of 9/11, “[By now] we ought to be past the time of emergency responses. We ought to have more considered views now…. We have time to debate a legal regime and what’s appropriate.” [Washington Post, 12/18/2005] Kate Martin, director of the Center for National Security Studies, says the secret order may amount to Bush authorizing criminal activity in direct violation of FISA. “This is as shocking a revelation as we have ever seen from the Bush administration,” she says. “It is, I believe, the first time a president has authorized government agencies to violate a specific criminal prohibition and eavesdrop on Americans.” The American Civil Liberties Union’s Caroline Frederickson says of the program, “It’s clear that the administration has been very willing to sacrifice civil liberties in its effort to exercise its authority on terrorism, to the extent that it authorizes criminal activity.” [Washington Post, 12/16/2005]
Attorney General Alberto Gonzales and NSA chief Lieutenant General Michael Hayden conduct their own “briefing” on the recently revealed NSA wiretapping program (see December 15, 2005) with the White House press corps. Gonzales and Hayden make the following points:
Gonzales says that he will not discuss the internal workings of the still-classified program, only what he calls its “legal underpinnings.”
He claims that the program, which he calls “the most classified program that exists in the United States government,” is legal because President Bush authorized it, and says that the idea that “the United States is somehow spying on American citizens” is wrong: it is “[v]ery, very important to understand that one party to the communication has to be outside the United States.”
He says that for the NSA to eavesdrop on a US citizen’s telephone or e-mail communications, “we have to have a reasonable basis to conclude that one party to the communication is a member of al-Qaeda, affiliated with al-Qaeda, or a member of an organization affiliated with al-Qaeda, or working in support of al-Qaeda.” The wiretapping program is an essential part of the administration’s war against terror, he says.
He goes on to claim that “the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes” legal grounds for “this kind of signals intelligence.” [White House, 12/19/2005] The White House signed Congress’s Authorization to Use Military Force (AUMF) into law on September 18, 2001 (see September 14-18, 2001. [White House, 9/18/2001]
Hayden Claims Supreme Court Backing - While he admits that the Congressional authorization to use force against international terrorism does not specifically mention any kind of electronic surveillance, he refers the listeners to the Supreme Court case concerning alleged US terrorist Yaser Esam Hamdi (see June 28, 2004), in which the Court ruled that Hamdi had the legal right to challenge his detention. “[T]he United States government took the position that Congress had authorized that detention in the authorization to use force, even though the authorization to use force never mentions the word ‘detention.’ And the Supreme Court, a plurality written by Justice O’Connor agreed. She said, it was clear and unmistakable that the Congress had authorized the detention of an American citizen captured on the battlefield as an enemy combatant for the remainder—the duration of the hostilities. So even though the authorization to use force did not mention the word, ‘detention,’ she felt that detention of enemy soldiers captured on the battlefield was a fundamental incident of waging war, and therefore, had been authorized by Congress when they used the words, ‘authorize the President to use all necessary and appropriate force.’ For the same reason, we believe signals intelligence is even more a fundamental incident of war, and we believe has been authorized by the Congress. And even though signals intelligence is not mentioned in the authorization to use force, we believe that the Court would apply the same reasoning to recognize the authorization by Congress to engage in this kind of electronic surveillance.”
Bush 'Very Concerned' With Protecting Civil Liberties - Gonzales insists, Bush “is very concerned about the protection of civil liberties, and that’s why we’ve got strict parameters, strict guidelines in place out at NSA to ensure that the program is operating in a way that is consistent with the President’s directives.” He adds, “[W]e feel comfortable that this surveillance is consistent with requirements of the Fourth Amendment. The touchstone of the Fourth Amendment is reasonableness, and the Supreme Court has long held that there are exceptions to the warrant requirement in—when special needs outside the law enforcement arena. And we think that that standard has been met here.”
Wiretapping Essential in Catching Terrorists - Hayden reiterates how important the wiretapping is to catching terrorists and stopping potential attacks against US targets, though he and Gonzales both refuse to say what, if any, terrorist plots or what terror suspects might have been captured through the NSA wiretapping program. Hayden does say, “This program has been successful in detecting and preventing attacks inside the United States.…I can say unequivocally, all right, that we have got information through this program that would not otherwise have been available,” though he refuses to cite specifics. He admits that there have been some errors in surveilling innocent US citizens, though he refuses to give any details, and says those errors were quickly corrected.
Administration Not Required to Go Through FISA - Gonzales, who is the main speaker in the briefing, reiterates that while the administration continues to seek warrants from the Foreign Intelligence Surveillance (FISA) court, “we are not legally required to do, in this particular case, because the law requires that we—FISA requires that we get a court order, unless authorized by a statute, and we believe that authorization has occurred.” He justifies the administration’s refusal to use the FISA court for obtaining warrants by insisting that NSA officials “tell me that we don’t have the speed and the agility that we need, in all circumstances, to deal with this new kind of enemy. You have to remember that FISA was passed by the Congress in 1978. There have been tremendous advances in technology… since then.” Hayden adds, “I don’t think anyone could claim that FISA was envisaged as a tool to cover armed enemy combatants in preparation for attacks inside the United States. And that’s what this authorization under the President is designed to help us do.”
'Balancing' of Civil Liberties, National Security - Hayden says the warrantless wiretapping program is part of “a balancing between security and liberty,” a more “aggressive” operation “than would be traditionally available under FISA. It is also less intrusive. It deals only with international calls. It is generally for far shorter periods of time. And it is not designed to collect reams of intelligence, but to detect and warn and prevent about attacks. And, therefore, that’s where we’ve decided to draw that balance between security and liberty.”
Media Leaks Damaging to National Security - Gonzales refuses to talk about when any members of Congress were briefed on the program or what they were told, but he does imply that there will be some sort of leak investigation as to how the New York Times found out about the program: “[T]his is really hurting national security, this has really hurt our country, and we are concerned that a very valuable tool has been compromised. As to whether or not there will be a leak investigation, we’ll just have to wait and see.”
No Evidence of Compromised National Security - When asked whether he can cite any evidence that the revelation of the program’s existence has actually compromised anything—“Don’t you assume that the other side thinks we’re listening to them? I mean, come on,” one reporter says—Gonzales responds, rather confusingly, “I think the existence of this program, the confirmation of the—I mean, the fact that this program exists, in my judgment, has compromised national security, as the President indicated on Saturday.”
Easier to Sidestep FISA Instead of Seek Congressional Approval - He does admit that the administration decided to sidestep the FISA court entirely instead of attempt to work with Congress to rewrite the FISA statutes because “we were advised that that would be difficult, if not impossible” to amend the law to the White House’s satisfaction. Gonzales says those who are concerned about the program being excessively intrusive or a threat to American civil liberties simply “don’t understand the specifics of the program, they don’t understand the strict safeguards within the program.… Part of the reason for this press brief today is to have you help us educate the American people and the American Congress about what we’re doing and the legal basis for what we’re doing.” He adds that any legal experts who believe the program is illegal are basing their judgments “on very limited information.”
Tough Questioning - One reporter asks an unusually tough series of questions to Gonzales: “Do you think the government has the right to break the law?”, to which Gonzales replies, “Absolutely not. I don’t believe anyone is above the law.” The reporter then says, “You have stretched this resolution for war into giving you carte blanche to do anything you want to do,” to which Gonzales replies cryptically, “Well, one might make that same argument in connection with detention of American citizens, which is far more intrusive than listening into a conversation.” The reporter insists, “You’re never supposed to spy on Americans,” and Gonzales deflects the responsibility for the decision back onto the Supreme Court.
Administration Will Tell Nation What It Needs to Know - Gonzales says the administration has no intention of releasing any of the classified legal opinions underpinning the program, and this press briefing is one of the methods by which the administration will “educat[e] the American people…and the Congress” to give them what they need to know about the program. [White House, 12/19/2005]
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]
DARPA logo. [Source: Duke University]The computer and technology experts at Ars Technica, a well-regarded Web publication which describes itself as focusing on “the art of technology,” speculate on the technology behind the NSA warrantless wiretapping program recently revealed to the public (see December 15, 2005). The Ars Technica experts believe that Senator Jay Rockefeller (D-WV)‘s 2003 comparison between the program and the Total Information Awareness (TIA) project (see March 2002) is the most apt. They believe that the NSA wiretapping program may be built upon the foundation of a shadowy, highly classified surveillance program called Echelon. They write, “This system’s purpose would be to monitor communications and detect would-be terrorists and plots before they happen… This project is not interested in funding ‘evolutionary’ changes in technology, e.g., bit-step improvements to current data mining and storage techniques. Rather, the amount of data that the directors are anticipating (petabytes!) would require massive leaps in technology (and perhaps also some massive leaps in surveillance laws).” [Ars Technica, 12/20/2005; Ars Technica, 2007] Data storage measured in petabytes is a colossal capacity; a petabyte is 1,024 terabytes, and a single terabyte is 1,024 gigabytes, the usual measurement for hard drive capacity. [TechTerms, 2007] The Ars Technica experts continue, “According to DARPA, such data collection ‘increases information coverage by an order of magnitude,’ and ultimately ‘requires keeping track of individuals and understanding how they fit into models.’” They go on to note that the NSA wiretapping program was instituted shortly after the TIA project was quashed by Congress, and say they believe the NSA program is an extension and an outgrowth of TIA. They note that “the FBI requested the legal authorization to do very high-volume monitoring of digital calls” in 1995, that there is “no way for the judicial system to approve warrants for the number of calls that the FBI wanted to monitor,” and that the FBI “could never hire enough humans to be able to monitor that many calls simultaneously, which means that they’d have to use voice recognition technology to look for ‘hits’ that they could then follow up on with human wiretaps.” The Ars Technica experts believe the NSA is using “some kind of high-volume, automated voice recognition and pattern matching system,” employing a form of “smart filtering” that would weed through perhaps hundreds of thousands of computer-monitored calls and turning a fraction of those calls over to human analysts for evaluation: “[Y]es, this kind of real-time voice recognition, crude semantic parsing and pattern matching is doable with today’s technology, especially when you have a budget like the NSA.” In a follow-up, Ars Technica technology specialist and self-described conservative and “privacy nazi” Jon Stokes writes of his own concerns over the program, noting that the program is too wide-reaching and too blunt to actually catch many real terrorists, and that the program is a tremendous intrusion into Americans’ fundamental privacy: “The problem is not that such large-scale industrial fishing invariably catches a few dolphins along with the tuna, but that between 99.999 and 100 percent of what you’re going to get is dolphin.” Stokes also warns that such an intrusive surveillance program will not only violate privacy rights, but be quite ineffective: “As the TSA, with its strip-searching of people’s elderly grandparents, abundantly proves every holiday season, blunt instruments and scorched earth tactics are of dubious value in catching genuine bad actors. In fact, blunt instruments and wide nets are the easiest for professional bad guys to evade. All you need to beat such surveillance tools is patience and know-how.…Blunt instruments like airport facial recognition software and random subway bag searches produce much more noise than they do signal, and any engineer or computer scientist worth his or her salt will tell you that an intelligent, targeted, low-tech approach beats a brute-force high-tech approach every time. There is no high-tech substitute for human intelligence gathering. In fact…an overload of crudely processed information is actually more likely to lead an analyst astray than it is to produce any useful insight.…In the end, brute force security techniques are not only corrosive to democratic values but they’re also bad for national security. They waste massive resources that could be spent more effectively elsewhere, and they give governments and countries a false sense of security that a savvy enemy can exploit to devastating effect.…[I]t’s not just enough to have sound intelligence; you also need political leaders who have the wisdom to use that intelligence appropriately.” [Ars Technica, 12/20/2005]
While on a trip to the Middle East, Vice President Dick Cheney gives a frank outline of his view of the president’s powers, and refers to an Iran-Contra document as support for this view. In response to a question about his perspective as a veteran of the Ford administration, which the reporter says “arguably was the point at which presidential power had reached its absolute nadir,” Cheney replies, “Yes, I do have the view that over the years there had been an erosion of presidential power and authority, that it’s reflected in a number of developments.” Cheney lists several examples, including the War Powers Act, Congressional budget controls, the limitations placed on his own 2001 Energy Task Force, and numerous steps to limit the president’s power taken after Watergate and the Vietnam War. Cheney then advises the reporter: “If you want reference to an obscure text, go look at the minority views that were filed with the Iran-Contra Committee; the Iran Contra Report in about 1987 (see November 16-17, 1987). Nobody has ever read them, but we—part of the argument in Iran Contra was whether or not the president had the authority to do what was done in the Reagan years. And those of us in the minority wrote minority views, but they were actually authored by a guy working for me, for my staff, that I think are very good in laying out a robust view of the president’s prerogatives with respect to the conduct of especially foreign policy and national security matters. It will give you a much broader perspective.… I believe in a strong, robust executive authority. And I think the world we live in demands it. And to some extent, that we have an obligation as an administration to pass on the offices we hold to our successors in as good a shape as we found them.… I do think that to some extent now, we’ve been able to restore the legitimate authority of the presidency.” [White House, 12/20/2005]
Nixon Lawyer: Cheney 'Twisting History' - However, former Nixon White House counsel John Dean will call the Iran-Contra document to which Cheney refers “replete with factual and other errors,” a wholesale “twist[ing] of history” that nevertheless “sought to establish extreme standards for presidential powers vis-a-vis Congress.” According to Dean, Cheney believes now, as he did then, “that the Congress—other than writing checks to finance the president’s policies—has no real role whatsoever.” [Dean, 2007, pp. 86-88]
Former Republican Staffer: 'Chasm of Difference' between Then, Now - Former Justice Department lawyer Bruce Fein, who helped Cheney write the minority report and has since parted ways with his old boss, will say there is “a chasm of difference” between Iran-Contra and the secrecy of the Bush-Cheney administration. “Then it was part of the democratic process,” Fein will say in July 2006. “The way you debate the process, it allows for self-correction. This is the essence, the lifeblood of democracy.” Then, the Reagan administration was forced by a Democratic majority in Congress to disclose at least some details of its inner workings. There is no such disclosure today, Fein says. “They think that democracy ends if you win elections.” [Dubose and Bernstein, 2006, pp. 81]
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]
Judge James Robertson. [Source: US Courts.gov]US District Judge James Robertson resigns from the Foreign Intelligence Surveillance Court (FISC), a special, secret court set up to oversee government surveillance operations. Robertson refuses to comment on his resignation from FISC, but two of Robertson’s associates say that Robertson’s resignation stems from his deep concerns that the NSA’s warrantless domestic wiretapping program (see Early 2002) is not legal, and has tainted the work of the court. Robertson, formerly one of ten “revolving” members of FISC who periodically rotate in and out of duty on the court, continues to serve as a Washington, DC district judge. Colleagues of Robertson say that he is concerned that information gained from the warrantless surveillance under Bush’s program subsequently could have been used to obtain warrants under the FISA program, a practice specifically prohibited by the court. Robertson, a Clinton appointee selected for FISC by Chief Justice William Rehnquist, has also been critical of the Bush administration’s treatment of detainees at the Guantanamo Bay prison camp, and recently issued a decision that sidetracked Bush’s use of military tribunals for some Guantanamo detainees (see November 8, 2004). Even though Robertson was hand-picked for FISC by the deeply conservative Rehnquist, who expressly selected judges who took an expansive view of wiretapping and other surveillance programs, [Associated Press, 12/21/2005] some conservative critics such as Jim Kouri, a vice-president of the National Association of Chiefs of Police, call Robertson a “left-leaning, liberal” “Clintonista” jurist with ties to “ultra-liberal” civil rights associations and a desire for media attention (though Robertson has refused to speak to the press about his resignation). Critics also demand that less attention be directed at the NSA wiretapping program and more on finding out who leaked the information that led to the New York Times’s recent revelatory articles on the program (see Early 2002). GOP strategist Mike Baker says in response to Robertson’s resignation, “Only the Democrats make confirmations and appointments of people by Republican President [sic] a question of ideology. The news media try to portray [Robertson] as non-partisan. He’s as liberal as they come and as partisan as they come.” [Men's News, 12/23/2005] Presiding judge Colleen Kollar-Kotelly is arranging for a classified briefing of all the remaining FISC judges on the wiretapping program, partly in order to bring any doubts harbored by other justices into the open. Sources say Kollar-Kotelly expects top NSA and Justice Department officials to outline the program for the judges. No one on FISC except for Kollar-Kotelly and her predecessor, Judge Royce Lambeth, have ever been briefed on the program. If the judges are not satisfied with the information provided in this briefing, they could take action, which could include anything from demanding proof from the Justice Department that previous wiretaps were not tainted, could refuse to issue warrants based on secretly-obtained evidence, or, conceivably, could disband the entire court, especially in light of Bush’s recent suggestions that he has the power to bypass the court if he so desires. [Washington Post, 12/22/2005]
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]
Former Senate Majority Leader Tom Daschle (D-SD) writes that Congress explicitly rejected several attempts by the Bush administration to provide him with war-making authority and the authority to wiretap and monitor US citizens “in the United States” when it approved the September 18, 2001 authorization to use military force (AUMF) against terrorists (see September 14-18, 2001). Instead, the Bush administration merely usurped that authority and launched—or expanded (see Spring 2001)—its warrantless wiretapping program, conducted by the NSA. Since then, the Bush administration and the Justice Department have both repeatedly asserted that the AUMF gave them the right to conduct the wiretapping program, an assertion that Daschle says is flatly wrong. On December 21, the Justice Department admitted in a letter that the October 2001 presidential order authorizing warrantless eavesdropping on US citizens did not comply with “the ‘procedures’ of” the law that has regulated domestic espionage since 1978, known as the Foreign Intelligence Surveillance Act (FISA). FISA established a secret intelligence court and made it a criminal offense to conduct electronic surveillance without a warrant from that court, “except as authorized by statute.” However, the letter, signed by Assistant Attorney General William Moschella, argues that the AUMF gave the administration the authority to conduct the program. [Washington Post, 12/22/2005] The letter continues the argument that Congress gave President Bush the implict authority to create an exception to FISA’s warrant requirements, though the AUMF resolution did not mention surveillance and made no reference to the president’s intelligence-gathering authority. The Bush administration kept the program secret until it was revealed by the New York Times on December 15, 2005. Moschella argues that secret intelligence-gathering, even against US citizens, is “a fundamental incident to the use of military force” and that its absence from the resolution “cannot be read to exclude this long-recognized and essential authority to conduct communications intelligence targeted at the enemy.” Such eavesdropping, he argued, must by necessity include conversations in which one party is in the United States. [William Moschella, 12/22/2005 ] Daschle, one of the primary authors of the resolution, says that Moschella and the Bush administration are wrong in their assertions: “I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al-Qaeda did not believe that they were also voting for warrantless domestic surveillance” (see September 12-18, 2001). [Washington Post, 12/23/2005]
Entity Tags: National Security Agency, Bush administration (43), Authorization to Use Military Force (AUMF), Al-Qaeda, Foreign Intelligence Surveillance Act, George W. Bush, Osama bin Laden, US Department of Justice, Foreign Intelligence Surveillance Court, New York Times, William E. Moschella, Richard (“Dick”) Cheney, Tom Daschle
Timeline Tags: Civil Liberties
Chart showing NSA surveillance network. [Source: NSA Watch] (click image to enlarge)The National Security Agency has built a far larger database of information collected from warrantless surveillance of telephone and Internet communications to and from US citizens than the NSA or the Bush administration has acknowledged (see October 2001). On December 15, the New York Times exposed the NSA’s program (see December 15, 2005), which was authorized by President Bush in early 2002 (see Early 2002), but which actually began far earlier (see Spring 2001). The NSA built its database with the cooperation of several major American telecommunications firms (see June 26, 2006), and much of the information was mined directly into the US telecommunications system’s major connections. Many law enforcement and judicial officials question the legality of the program (see May 12, 2006 and December 18, 2005), and many say the program goes beyond the bounds of the Foreign Intelligence Surveillance Act (see 1978). One question is whether the FISA Court, or FISC, can authorize monitoring of international communications that pass through US-based telephonic “switches,” which handle much of the US’s electronic communications traffic. “There was a lot of discussion about the switches” in conversations with FISC, says a Justice Department official. “You’re talking about access to such a vast amount of communications, and the question was, How do you minimize something that’s on a switch that’s carrying such large volumes of traffic? The court was very, very concerned about that.” While Bush and his officials have insisted that the warrantless wiretaps only target people with known links to al-Qaeda, they have not acknowledged that NSA technicials have not only eavesdropped on specific conversations between people with no known links to terrorism, but have combed through huge numbers of electronic communications in search of “patterns” that might point to terrorism suspects. Such “pattern analysis” usually requires court warrants before surveillance can begin, but in many cases, no such warrants have been obtained or even requested. Other, similar data-mining operations, such as the Total Information Awareness program, developed by the Defense Department to track terror suspects (see March 2002), and the Department of Homeland Security’s CAPPS program, which screened airline passengers (see (6:20 a.m.-7:48 a.m.) September 11, 2001), were subjected to intense public scrutiny and outrage, and were publicly scrapped. The Bush administration has insisted that it has no intention of scrapping the NSA’s warrantless wiretapping program, because, as its officials have said, it is necessary to identify and track terrorism suspects and foil terrorist plots before they can be hatched. Administration officials say that FISC is not quick enough to respond to its need to respond to potential terrorist acts. A former technology manager at a major telecommunications company says that after 9/11, the leading telecom firms have been storing information on calling patterns and giving it to the federal government to aid in tracking possible terrorists. “All that data is mined with the cooperation of the government and shared with them, and since 9/11, there’s been much more active involvement in that area,” says the former manager. “If they get content, that’s useful to them too, but the real plum is going to be the transaction data and the traffic analysis. Massive amounts of traffic analysis information—who is calling whom, who is in Osama Bin Laden’s circle of family and friends—is used to identify lines of communication that are then given closer scrutiny.” And, according to a government expert on communications privacy who used to work at the NSA, says that in the last few years, the government has quietly encouraged the telecom firms to rout more international traffic through its US-based switches so it can be monitored. Such traffic is not fully addressed by 1970s-era laws that were written before the onset of modern communications technology; neither does FISA adequately address the issues surrounding that technology. Computer engineer Phil Karn, who works for a major West Coast telecom firm, says access to those switches is critical: “If the government is gaining access to the switches like this, what you’re really talking about is the capability of an enormous vacuum operation to sweep up data.” [New York Times, 12/24/2005]
Entity Tags: US Department of Defense, US Department of Justice, Total Information Awareness, New York Times, US Department of Homeland Security, Computer Assisted Passenger Prescreening System, Bush administration (43), Foreign Intelligence Surveillance Act, Foreign Intelligence Surveillance Court, George W. Bush, National Security Agency, Phil Karn
Timeline Tags: Civil Liberties
Suzanne Spaulding, a former counsel for the CIA, the Senate and House intelligence commission, and executive director of the National Terrorism Commission from 1999 through 2000, writes an op-ed criticizing the Bush administration for its domestic surveillance program. She writes that the three main sources of oversight and restraint on Bush’s unfettered efforts to monitor US citizens—Congress, the judiciary, and the American people—have failed to halt what she calls “this extraordinary exercise of presidential power.” Spaulding, who will testify along similar lines before the Senate over a year later (see April 11, 2007), writes, “Ironically, if it is ultimately determined that this domestic surveillance program reflects the exercise of unchecked power in contravention of law, it will wind up weakening the presidency. Once again, we will confront the challenge of restoring Americans’ faith in the rule of law and our system of checks and balances.” The pretense of oversight by the administration, in providing limited and perhaps misleading briefings on the program only to the so-called “Gang of Eight” Congressional leaders, is superficial and ineffective, she writes; the entire process “effectively eliminates the possibility of any careful oversight.” She notes that because of the severe restrictions both in the information doled out to these Congressional leaders, and their strict prohibition on discussing the information with anyone else, even other intelligence panel members, “[i]t is virtually impossible for individual members of Congress, particularly members of the minority party, to take any effective action if they have concerns about what they have heard in one of these briefings. It is not realistic to expect them, working alone, to sort through complex legal issues, conduct the kind of factual investigation required for true oversight and develop an appropriate legislative response.” Congressional oversight is key to retaining the trust of the US citizenry, she writes, and adds that that particular principle was well understood at the CIA while she was there. Oversight “is vital for a secret agency operating in a democracy. True oversight helps clarify the authority under which intelligence professionals operate. And when risky operations are revealed, it is important to have members of Congress reassure the public that they have been overseeing the operation. The briefings reportedly provided on the National Security Agency (NSA) surveillance program reflect, instead, a ‘check the box’ mentality—allowing administration officials to claim that they had informed Congress without having really achieved the objectives of oversight.” While those few members of Congress are given little real information, the judiciary, particularly the Foreign Intelligence Surveillance Court (FISC), is cut out of the process entirely. “Instead of going to a judge on the secret court that was specifically established to authorize foreign intelligence surveillance inside the United States, we are told that an NSA shift supervisor was able to sign off on the warrantless surveillance of Americans,” she writes. “That’s neither a check nor a balance. The primary duty of the NSA shift supervisor, who essentially works for the president, is to collect intelligence. The task of the judge is to ensure that the legal standards set out in the 1978 Foreign Intelligence Surveillance Act (FISA) have been met. Which one has stronger independence to say no, if no needs to be said? The objectives of the surveillance program, as described in news reports, seem laudable. The government should be running to ground the contacts listed in a suspected terrorist’s cell phone, for example. What is troubling is that this domestic spying is being done in apparent contravention of FISA, for reasons that still are not clear.” In her piece she takes issue with the Bush administration’s insistence that its surveillance program is legal and necessary. She makes the following case:
Specious Arguments to Duck FISA Court - The argument that the FISA Court is too slow to respond to immediate needs for domestic surveillance is specious, she says. “FISA anticipates situations in which speed is essential. It allows the government to start eavesdropping without a court order and to keep it going for a maximum of three days. And while the FISA application process is often burdensome in routine cases, it can also move with remarkable speed when necessary, with applications written and approved in just a few hours.” Instead, she says that the Bush administration must have dodged FISC because their wiretaps didn’t meet FISA standards of probable cause. Since FISC is staffed by judges hand-picked by conservative then-Supreme Court Chief Justice William Rehnquist, “who presumably felt that they had the right temperament and expertise to understand the national security imperatives as well as the need to protect civil liberties,” and since FISC has granted all but four of the more than 5,645 requests for wiretaps and surveillance made by the administration since 2001, to argue that FISC is unresponsive is simply wrong-headed. And, she notes, if the administration felt that FISA’s standards were too strict, it could have moved to amend the law to allow more leniency in obtaining such warrants. It has not done so since the passage of the 2001 Patriot Act. She writes, “The administration reportedly did not think it could get an amendment without exposing details of the program. But this is not the first time the intelligence community has needed a change in the law to allow it to undertake sensitive intelligence activities that could not be disclosed. In the past, Congress and the administration have worked together to find a way to accomplish what was needed. It was never previously considered an option to simply decide that finding a legislative solution was too hard and that the executive branch could just ignore the law rather than fix it.”
No Justification for Keeping Program Secret - In addition, the administration has consistently failed to make a case for keeping the domestic wiretapping policy secret for four years. US-designated terrorist groups already know that the government listens to their cell phone conversations whenever possible, and they are well aware of the various publicly known programs to search through millions of electronic communications, such as the NSA’s Echelon program (see April 4, 2001). “So what do the terrorists learn from a general public discussion about the legal authority being relied upon to target their conversations?” she asks. “Presumably very little. What does the American public lose by not having the public discussion? We lose the opportunity to hold our elected leaders accountable for what they do on our behalf.”
Assertions that Program Authorized by Congress Fallacious - The argument advanced by Attorney General Alberto Gonzales that says the program does not violate the law because Congress’s post-9/11 authorization of force against terrorists gives the administration the right to circumvent FISA is equally specious, she argues. “FISA does provide for criminal penalties if surveillance is conducted under color of law ‘except as authorized by statute.’ This is a reference to either FISA or the criminal wiretap statute. A resolution, such as the Use of Force resolution, does not provide statutory authority. Moreover, FISA specifically provides for warrantless surveillance for up to 15 days after a declaration of war. Why would Congress include that provision if a mere Use of Force resolution could render FISA inapplicable? The law clearly states that the criminal wiretap statute and FISA are ‘the exclusive means by which electronic surveillance…and the interception of domestic wire, oral, and electronic communications may be conducted.’ If these authorities are exclusive, there is no other legal authority that can authorize warrantless surveillance. Courts generally will not view such a clear statutory statement as having been overruled by a later congressional action unless there is an equally clear indication that Congress intended to do that.” Therefore, by any legal standard, the administration’s program is, apparently, illegal.
No Inherent Presidential Authority - The ultimate argument by Bush officials, that the president has some sort of inherent authority as commander-in-chief to authorize illegal wiretaps, is the same groundless legal argument recently used to justify the use of torture by US intelligence and law enforcement agents (see December 28, 2001). That argument was withdrawn, Spaulding notes, after it became publicly known. While the courts have not specifically ruled on this particular argument, Spaulding notes that the Supreme Court refused to recognize then-President Harry Truman’s attempt to seize control of the nation’s steel mills to avert a possible strike during the Korean War. The Supreme Court ruled “that the president’s inherent authority is at its weakest in areas where Congress has already legislated. It ruled that to find inherent presidential authority when Congress has explicitly withheld that authority—as it has in FISA—‘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 president and Congress.’” She notes that in 2004, the Supreme Court rejected the argument for unchecked presidential power in the Hamdi case (see June 28, 2004), with Justice Sandra Day O’Connor writing for the court, “We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation’s citizens. …Whatever power the United States Constitution envisions for the Executive in its exchanges with… enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” Spaulding concludes, “The rule of law and our system of checks and balances are not a source of weakness or a luxury of peace. As O’Connor reminded us in Hamdi, ‘It is during our most challenging and uncertain moments…that we must preserve our commitment at home to the principles for which we fight abroad.’” [Washington Post, 12/25/2005]
Entity Tags: Sandra Day O’Connor, William Rehnquist, USA Patriot Act, Suzanne Spaulding, National Security Agency, US Supreme Court, Harry S. Truman, Alberto R. Gonzales, “Gang of Eight”, National Commission on Terrorism, Central Intelligence Agency, Foreign Intelligence Surveillance Act, Foreign Intelligence Surveillance Court, Echelon, Bush administration (43)
Timeline Tags: Civil Liberties
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]
The Justice Department opens an investigation into the leak of classified information about the Bush domestic surveillance program. The investigation focuses on disclosures to the New York Times about the secret warrantless wiretapping program conducted by the National Security Agency since shortly after the 9/11 attacks (see Early 2002). The White House claims that the Justice Department initiated the investigation on its own after receiving a request from the NSA, and that it was not even informed of the investigation until the decision had already been made. But White House spokesman Trent Duffy hails the investigation, and implicitly accuses the Times of aiding and abetting terrorists by printing its stories. “The leaking of classified information is a serious issue,” Duffy says. “The fact is that al-Qaeda’s playbook is not printed on Page One, and when America’s is, it has serious ramifications.” [Associated Press, 12/30/2005] President Bush fuels the attack on the Times when he says, “The fact that we’re discussing this program is helping the enemy.” [New York Times, 12/30/2005] Many outside of the administration have accused the wiretapping program, which functions without external oversight or court warrants, of being illegal, and Bush of breaking the law by authorizing it. Administration officials insist that Bush has the power to make such a decision, both under the Constitution’s war powers provision and under the post-9/11 Congressional authorization to use military force against terrorism, even though, as former Senate Majority Leader Tom Daschle recalls, Congress explicitly refused to give Bush the authority to take military action inside the US itself (see December 21-22, 2005). And, in a recent letter to the chairs of the House and Senate Intelligence Committees, the White House claimed that the nation’s security needs outweigh the needs of the citizenry to be secure from secret government surveillance. [Associated Press, 12/30/2005] Others disagree. The American Civil Liberties Union’s Anthony Romero says, “President Bush broke the law and lied to the American people when he unilaterally authorized secret wiretaps of US citizens. But rather than focus on this constitutional crisis, Attorney General [Alberto] Gonzales is cracking down on critics of his friend and boss. Our nation is strengthened, not weakened, by those whistle-blowers who are courageous enough to speak out on violations of the law.” And Marc Rotenberg, the executive director of the Electronic Privacy Information Center, says the NSA should be the focus of an investigation to determine if it broke federal surveillance laws. Tom Devine of the Government Accountability Project suggests a middle course. His group does not object to a limited investigation into the leak of classified information, but, he says, if the administration does “a blanket witch hunt, which I fear, it would trample all over good government laws” designed to protect government workers who expose wrongdoing. “The whole reason we have whistle-blower laws is so that government workers can act as the public’s eyes and ears to expose illegality or abuse of power.” [New York Times, 12/30/2005] Ultimately, this leak investigation may not achieve much, according to law professor Carl Tobias. “It doesn’t seem to me that this leak investigation will take on the importance of the Plame case,” Tobias says. “The bigger story here is still the one about domestic spying and whether the president intends, as he said, to continue doing it.” [Washington Post, 12/31/2005]
Entity Tags: Anthony D. Romero, Tom Devine, Trent Duffy, American Civil Liberties Union, Al-Qaeda, Tom Daschle, Senate Intelligence Committee, US Department of Justice, National Security Agency, Carl Tobias, Electronic Privacy Information Center, Alberto R. Gonzales, New York Times, Government Accountability Project, George W. Bush, Marc Rotenberg, House Intelligence Committee
Timeline Tags: Civil Liberties
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]
F. Duane Ackerman. [Source: Mark Wilson / Getty Images]The National Security Telecommunications Advisory Committee (NSTAC), created in September 1982 by then-president Ronald Reagan’s Executive Order 12382, [National Communications System, 7/19/2006] is apparently facilitating US telecommunication firms’ cooperation with the NSA in conducting surveillance against US citizens. According to journalist Tim Shorrock, NSTAC, which he calls “kind of a murky organization [that] meets twice a year with people at the White House,” advises the White House on national security issues involving the telecommunications system. Vice President Dick Cheney participated in their most recent meeting. NSTAC is chaired by F. Duane Ackerman, the president and CEO of BellSouth, and is made up of executives from a number of telecom companies and other companies that are involved in telecommunications, including Verizon. Shorrock observes, “[T]hey all contract with the intelligence community to do various kinds of work, and, you know, they brag about it in their testimony. They say, you know, ‘We have a long record of cooperation with intelligence,’ and so on. So, these relationships go back many, many years, and I think what we have now is a group of people that meet, and they all have high—they all have security clearances to do this.” [Democracy Now!, 5/12/2006]
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]
The Justice Department’s civil rights division threatens to sue Southern Illinois University over its paid fellowships for women and minorities on the ground that the program discriminates against white males. The university discontinues the fellowships. The case was developed by a 2004 political hire of the division who belongs to the conservative Federalist Society and had previously worked for the Center for Individual Rights, an organization that opposes affirmative action programs (see Fall 2002 and After). [Savage, 2007, pp. 297]
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]
The National Security Council rejects a request from the Defense Department’s Office of Inspector General (OIG) to interview Stephen Hadley. The OIG is conducting an investigation into whether the Defense Department’s Office of Special Plans had been engaged in inappropriate intelligence activities prior to the invasion of Iraq. [Think Progress, 2/9/2007; US Congress, 2/9/2007] During the time period in question, Hadley had been deputy national security adviser, and was reportedly one of the Pentagon office’s main contacts in the National Security Council (see, e.g., Shortly After September 11, 2001 and September 2002).
Attorney General Alberto Gonzales testifies before the Senate Judiciary Committee that the new “reasonable belief” standard for wiretaps is just another term for “probable cause.” Gonzales’s claim is legally false. The difference between the two standards is significant: while administration officials must present relatively compelling evidence that a US citizen has ties to US-designated terrorist organizations or is involved in terror plots to meet the “probable cause” standard for authorizing electronic surveillance, the “reasonable belief” standard is far more lenient. Gonzales also repeats for the committee President Bush’s claims that the Foreign Intelligence Surveillance Court (FISC) isn’t “agile” or “nimble” enough to assist the Justice Department and the US intelligence community in finding and arresting terrorists, a claim that FISC judges find baffling. FISC routinely approves almost all warrant requests, and FISA allows the government to conduct surveillance for 72 hours before even applying for a warrant. Additionally, FISC has consistently worked with the government to expedite requests and streamline the warrant-issuance procedure. For example, in March 2002, when the FBI and Pakistani police arrested al-Qaeda operative Abu Zubaida, agents found that almost all of Zubaida’s contacts were already being monitored under FISA warrants or through international surveillance efforts (see March 28, 2002). One government official says that the Zubaida discovery gave them “some comfort” that surveillance efforts were working as needed. [Washington Post, 2/9/2006]
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]
The National Security Agency’s ‘Trailblazer’ program (see Late 1999), envisioned in 1999 as an overarching state-of-the-art data-mining system capable of sorting through millions of telephone and Internet communications and pluck out items relevant to national security and counterterrorism, is an abject failure, according to multiple sources and reports. The program has soaked up six years of effort and $1.2 billion in taxpayer dollars, with nothing to show except some schematic drawings and a few isolated technological and analytical gadgets, and little hope of much future progress. Matthew Aid, who has advised three federal commissions and panels investigating the 9/11 attacks, says that Trailblazer is “the biggest boondoggle going on now in the intelligence community.” Part of the problem is that over its six years of development, Trailblazer has passed through three separate NSA divisions, each with its own priorities and design goals. Its overseers have failed to exert the proper authority to clearly define the program’s goals and keep the project on track. In 2003, the NSA’s inspector general found that the program suffered from “inadequate management and oversight” of private contractors and overpayment for the work that was done. The lead private contractor for the project, Science Applications International Corporation (SAIC), has not provided the technical and managerial expertise necessary to create the system. While the Bush administration has touted the NSA wiretapping program (see December 15, 2005) as vital to protecting the nation from terrorism, it allows the agency to mismanage Trailblazer, in essence allowing the agency to go increasingly “deaf” as millions of items of unimportant information overwhelm the agency’s ability to sort out key bits of information, according to a government official. A Congressional investigation of intelligence failures surrounding the 9/11 attacks found that the NSA did not sift out “potentially vital” information that could have predicted or even prevented the attacks—a lapse that Trailblazer was intended to correct. Aid says that the problem is akin to searching for a needle in a haystack that doubles in size every few months. Intelligence experts say that the problem with Trailblazer is like deciding whether to keep a piece of mail or throw it out based only on what is on the outside of the envelope. Approximately 95% of the information gathered by the NSA is discarded without ever being translated from its original binary form; the remaining 5% is turned into plain text for human analysts to survey. Trailblazer was designed to sort through this information to identify patterns, keywords, and links to other data. The program would, in theory, translate all of the information into plain text or voice data, analyze the results to identify items of interest, store the results in an easily searchable database, and forward selected items to the appropriate analysts for follow-up. But after six years of work, there will still be no consensus among agency managers and experts as how to create a system to do this. Interestingly, another, less grandiose program, code-named Thinthread, appeared promising—a 2004 Pentagon report found that Thinthread could work better and be put to use more quickly than Trailblazer—but NSA managers disagreed with the Pentagon report and canceled Thinthread. Instead, Hayden pushed the agency to get Trailblazer up and running after the 9/11 attacks, cutting into time needed for review and corrections. Internal and external warnings that the program was going off-course were ignored; because of its secrecy and technological sophistication, neither Congress nor the NSA was able to effectively monitor the progress of the program’s development. And the agency lost track of much of the $1.2 billion that was allocated by Congress for the program. NSA Inspector General Joel Brenner blames the waste and inefficiency on “inadequate management and oversight.” As of 2006, the Government Accountability Office, the investigative arm of Congress, has not investigated Trailblazer simply because no one in Congress had asked it to. Because of the impact of the 9/11 attacks, and the war in Iraq, Congress has never seriously considered cutting back or reviewing any programs such as Trailblazer that might provide information on further terrorist attacks. [Baltimore Sun, 1/29/2006]
Dr. James Hansen, the director of NASA’s Goddard Institute for Space Studies and a top climate scientist, reveals that the Bush administration ordered NASA’s public affairs staff to review his lectures, papers, Web site postings, and interview requests after he gave a lecture calling for the reduction of greenhouse gases linked to global warming. “They feel their job is to be the censor of information going out to the public,” Hansen says, and he promises to ignore the restrictions. NASA denies trying to silence Hansen, saying the restrictions apply to all NASA officials, and adds that it is inappropriate for government scientists to make policy statements (see Between June 2003 and October 2003, (January 2006), and (Late January 2006)). [Savage, 2007, pp. 106] This is not the first time Hansen has gone public about government attempts to censor and muzzle him and his fellows (see October 2004, October 26, 2004, and February 10, 2006).
The Senate learns that the Internal Revenue Service (IRS) collected information on the political party affiliations of taxpayers in 20 states during extensive investigations into tax dodgers. Senator Patty Murray (D-WA), a member of an appropriations subcommittee that oversees the IRS, calls the practice “an outrageous violation of the public trust.” The IRS blames the information collection on a third-party vendor who has been told to screen out the information, and claims that it never used the party information it did collect. IRS spokesman John Lipold says, “The bottom line is that we have never used this information. There are strict laws in place that forbid it.” Murray says she learned of the practice from the National Treasury Employees Union (NTEU). The IRS is part of the US Treasury Department. Colleen Kelly of the NTEU says that several IRS employees had complained to the NTEU about the collection of party identification, but that the IRS officials she informed about the practice claimed not to know anything about it. Deputy IRS Commissioner John Dalrymple told Kelly that the party identification information was automatically collected through a “database platform” supplied by an outside contractor that used voter registration rolls, among other information sources, to find tax dodgers. “This information is appropriately used to locate information on taxpayers whose accounts are delinquent,” Dalrymple claimed. But Murray and Kelly are skeptical. “This agency should not have that type of information,” Murray says. “No one should question whether they are being audited because of party affiliation.” Kelly worries that such improper information collection will continue, especially in light of the fact that the IRS will soon begin using private collection agencies to go after US citizens delinquent on their tax bills. “We think Congress should suspend IRS plans to use private collections agencies until these questions have been resolved,” Kelly says. Murray says that the twenty states in which the IRS collected party affiliation information were Alaska, Arkansas, Colorado, Connecticut, Delaware, Florida, Louisiana, Massachusetts, Michigan, Nevada, New Jersey, New York, North Carolina, Ohio, Oklahoma, Rhode Island, South Carolina, Texas, Utah, and Wisconsin. [Tacoma NewsTribune, 1/6/2006]
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]
Jane Harman (D-CA), the ranking Democrat on the House Intelligence Committee, tells President Bush that his administration’s practice of only briefing a select few Congressional leaders on highly classified programs violates the National Security Act of 1947. Harman is referring to Bush’s practice of briefing the so-called “Gang of Eight,” comprised of the Speaker and Minority Leader of the House, the Majority and Minority Leaders of the Senate, and the chairmen and ranking members of the House and Senate Intelligence Committees, about the National Security Agency’s warrantless wiretapping program. Harman, a member of the Gang of Eight since 2003, says that she has found, she writes, “that the practice of briefing only certain Members of the intelligence committees violates the specific requirements of the National Security Act of 1947. The National Security Act requires that ‘The President shall ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States….‘…The Act makes clear that the requirement to keep the committees informed may not be evaded on the grounds that ‘providing the information to the congressional intelligence committees would constitute the unauthorized disclosure of classified information.’” Harman notes that the one exception to the president’s duty to keep all committee members informed, covert action that entails “extraordinary circumstances affecting vital interests of the United States” and thereby limits notification to the Gang of Eight, applies only “to covert actions, not intelligence collection activities.” Harman adds, “For all intelligence activities that are not covert actions, the Executive Branch’s duty is clear: the ‘heads of all…entities involved in intelligence activities shall…keep the congressional intelligence committees fully and currently informed of all intelligence activities.” Harman says that merely briefing the Gang of Eight does not provide “effective oversight,” especially in light of the restrictions on the lawmakers: “Members of the Gang of Eight cannot take notes, seek the advice of their counsel, or even discuss the issues raised with their committee colleagues.… As you know, both congressional intelligence committees are select committees, formed of Members who hold the highest security clearances and have a proven ability to safeguard classified information.” Harman concludes, “In my view, failure to provide briefings to the full congressional intelligence committees is a continuing violation of the National Security Act.” [US House of Representatives, 1/4/2006] Two weeks later, the Congressional Research Service will issue a report on the requirements of the Act agreeing with Harman’s conclusion (see January 18, 2006).
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]
President Bush’s rationale for authorizing warrantless surveillance against US citizens is of questionable legality and “may represent an exercise of presidential power at its lowest ebb,” according to a Congressional analysis. The Congressional Research Service (CRS), the independent and nonpartisan research bureau of the legislature, answers the question raised around the nation since the revelation of the secret program by the New York Times (see Early 2002): did Bush break the law when he ordered the National Security Agency to eavesdrop on US citizens without court orders or judicial oversight? The CRS report does not give a definitive yes or no answer to that question, but finds Bush’s legal rationale dubious at best. That rationale “does not seem to be as well-grounded” as administration lawyers have claimed, and the report finds that, despite assertions to the contrary by Bush and administration officials, Congress did not authorize warrantless wiretaps when it gave the executive branch the authority to wage war against al-Qaeda in the days after the 9/11 attacks. Unsurprisingly, Bush administration officials criticize the report. But some Republicans and Democrats find the report’s conclusions persuasive, and hold up the report as further evidence that Bush overextended his authority by authorizing the wiretaps. For instance, Republican Thomas Kean, the former chairman of the 9/11 commission (see January 27, 2003, says he doubts the program’s legality. Kean, who has not spoken publicly about the program until now, says the 9/11 commission was never told about the program, and he strongly doubts its legality. “We live by a system of checks and balances, and I think we ought to continue to live by a system of checks and balances,” Kean says. [Congressional Research Service, 1/5/2006 ; New York Times, 1/6/2006]
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]
Russell Tice. [Source: ABC News]Former National Security Agency (NSA) official Russell Tice says that many of the wiretapping operations he once helped run were illegal. “I specialized in what’s called special access programs,” Tice tells ABC News. “We called them ‘black world’ programs and operations.” Tice is ready to testify before Congress about what he calls the illegal wrongdoings that are part of the Defense Department and the NSA’s wiretapping programs enacted after the 9/11 attacks. Many of these programs were targeted at innocent US citizens. “The mentality was we need to get these guys, and we’re going to do whatever it takes to get them,” he says. The technology used to track and sort through every domestic and international telephone center is impressive. “If you picked the word ‘jihad’ out of a conversation, the technology exists that you focus in on that conversation, and you pull it out of the system for processing.” Intelligence analysts use the information to develop graphs that resemble spiderwebs linking one suspect’s phone number to hundreds or even thousands more. While the president has admitted giving orders that allowed the NSA to eavesdrop on a small number of Americans without warrants, Tice says says the number of Americans subject to eavesdropping by the NSA could be in the millions if the full range of secret NSA programs is used. “That would mean for most Americans that if they conducted, or you know, placed an overseas communication, more than likely they were sucked into that vacuum.” Tice has been subjected to what appears to be bureaucratic punishment for his willingness to blow the whistle on the nation’s warrantless wiretapping programs; last year the NSA revoked his security clearance based on what it calls "psychological concerns," and later fired him. Tice says that is the way the NSA often deals with employees it considers troublemakers and whistleblowers (see January 25-26, 2006). [ABC News, 1/10/2006; ABC, 1/10/2006]
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]
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
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 memo from the nonpartisan Congressional Research Service (CRS) finds that President Bush appears to be in violation of the National Security Act of 1947 in his practice of briefing only select members of Congress on the National Security Agency’s warrantless wiretapping program. Bush has provided only limited briefings to the so-called “Gang of Eight,” the four Congressional leaders and the four ranking members of the House and Senate Intelligence Committees. But the 1947 law requires the US intelligence community to brief the full membership of both committees on the program. The memo is the result of a request by Representative Jane Harman (D-CA), who wrote Bush a letter saying that she believes he is required under the Act to brief both committees, and not just the Gang of Eight (see January 4, 2006). The White House claims that it has briefed Congressional leaders about the program over a dozen times, but refuses to provide details; the Congressional members so briefed are forbidden by law to discuss the content or nature of those classified briefings, even with their own staff members. “We believe that Congress was appropriately briefed,” says White House spokeswoman Dana Perino. The CRS agrees with Harman that the single exception to such full briefings under the law, covert actions taken under extraordinary threats to national security, is not applicable in this instance. Unless the White House contends the program is a covert action, the memo says, “limiting congressional notification of the NSA program to the Gang of Eight…would appear to be inconsistent with the law.” [US House of Representatives, 1/4/2006; Congressional Research Service, 1/18/2006 ; Washington Post, 1/19/2006] The day after the CRS memo is released, Senate Democrats John D. Rockefeller (D-WV) and Harry Reid (D-NV), along with House Minority Leader Nancy Pelosi (D-CA) and Harman, the ranking member of the House Intelligence Committee, write to Vice President Dick Cheney demanding that the full committees be briefed on such intelligence matters in the future. [Washington Post, 1/20/2006] On February 9, Bush will allow Attorney General Alberto Gonzales and former NSA chief Michael Hayden to brief the full House Intelligence Committee on the program (see February 8-17, 2006).
Entity Tags: Jane Harman, John D. Rockefeller, National Security Agency, National Security Act, Richard (“Dick”) Cheney, Michael Hayden, House Intelligence Committee, George W. Bush, Dana Perino, “Gang of Eight”, Alberto R. Gonzales, Harry Reid, Congressional Research Service, Bush administration (43)
Timeline Tags: Civil Liberties
The Justice Department (DOJ) issues a 42-page “white paper” detailing its arguments that the National Security Agency’s warrantless wiretapping program (see February 2001, Spring 2001, After September 11, 2001, After September 11, 2001, October 2001, Early 2002, September 2002, Late 2003-Early 2004, April 19-20, 2004, June 9, 2005, June 9, 2005, December 15, 2005, December 17, 2005, December 19, 2005, December 24, 2005, January 5, 2006, January 18, 2006, January 18, 2006, January 23, 2006, and January 30, 2006) is legal. The DOJ reiterates two previous arguments (see December 19, 2005 and December 21-22, 2005)—that Congress implicitly authorized the program in 2001 when it authorized the Bush administration to begin military actions against al-Qaeda (see September 14-18, 2001), and that the president has the authority as commander in chief to conduct such a program—even though these arguments have been thoroughly refuted (see January 9, 2006) and overridden by the Supreme Court’s recent Hamdan v. Rumsfeld ruling (see December 15, 2005 and July 8, 2006). In its paper, the DOJ declares that if necessary, it will attack the legality of the Foreign Intelligence Surveillance Act (FISA) in order to stop that law from “imped[ing]” the president’s power to order domestic surveillance. In essence, according to columnist and civil liberties lawyer Glenn Greenwald, the DOJ is asserting that the president’s powers are limitless as long as he or she declares a given action necessary to battle terrorism. “Because the president has determined that the NSA activities are necessary to the defense of the United States from a subsequent terrorist attack in the armed conflict with al-Qaeda, FISA would impermissibly interfere with the president’s most solemn constitutional obligation—to defend the United States against foreign attack,” the DOJ claims. Neither Congress nor the court system has the right to limit or even review the president’s powers, according to the DOJ. Greenwald calls the DOJ’s argument “a naked theory of limitless presidential power.” In fact, Greenwald argues, the DOJ is asserting that FISA itself is unconstitutional, because no law can in any way limit the president’s power to conduct foreign policy or protect the nation’s security. The document is part of a larger Bush administration defense of the USA Patriot Act, and part of the administration’s push to convince Congress to reauthorize that legislation. Attorney General Alberto Gonzales sends the document to Congress. Justice Department official Steven Bradbury says, “When it comes to responding to external threats to the country… the government would like to have a single executive who could act nimbly and agilely.” [US Department of Justice, 1/19/2006 ; Glenn Greenwald, 1/20/2006; Washington Post, 1/20/2006]
Dubious Legality - The program has already been found to be of questionable legality by two reports recently released by the nonpartisan Congressional Research Service (see January 5, 2006 and January 18, 2006). And author James Bamford, a US intelligence expert who has written extensively about the NSA, says that the Justice Department’s arguments are specious in light of Congress’s clear intent in its 1978 passage of FISA to block warrantless wiretapping, and its demonstrated lack of intent to allow any such operations within US borders in the October 2001 legislation. “You could review the entire legislative history in the authorization to use military force and I guarantee you won’t find one word about electronic surveillance,” he says. “If you review the legislative history of FISA, you will find Attorney General Griffin Bell testifying before the intelligence committee saying this was specifically passed to prevent a president from claiming inherent presidential powers to do this again.” [Washington Post, 1/20/2006]
Self-Contradictory Justifications - In 2007, author and reporter Charlie Savage will write of the “shaky foundation” supporting the administration’s “two-pronged attacks on critics of the wiretapping program and the Patriot Act,” which some officials have claimed authorizes the program. “Beneath the simplistic rhetoric, the administration’s position was self-contradicting,” Savage will write. If Bush has the inherent presidential authority to order warrantless wiretapping, then he needs no authorization from the Patriot Act or any other legislation. But if Congress is endangering the nation by delaying in reauthorizing the Patriot Act and thusly not rendering the program legal, then the wiretapping program is illegal after all. The memo attempts to “paper… over” this problem by claiming that, while Bush has the inherent authority to do whatever he feels is necessary to protect the country, the Patriot Act’s extra police powers are still necessary in “contexts unrelated to terrorism.” Savage will write, “In other words, the administration’s own position, hidden in the fine print, was that the Patriot Act was superfluous and irrelevant to the war on terrorism—a somewhat absurd stance made necessary by their desire to say the wiretapping program was legal.” [Savage, 2007, pp. 315]
Failure to Address Probable Beginning of Program Before Attacks - The Justice Department says nothing about the program apparently beginning well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002).
Entity Tags: National Security Agency, James Bamford, Steven Bradbury, US Department of Justice, Griffin Bell, Senate Judiciary Committee, Glenn Greenwald, Foreign Intelligence Surveillance Act, Alberto R. Gonzales, Arlen Specter, George W. Bush, Congressional Research Service, Charlie Savage
Timeline Tags: Civil Liberties
Page 16 of 22 (2163 events (use filters to narrow search))previous
Receive weekly email updates summarizing what contributors have added to the History Commons database
Developing and maintaining this site is very labor intensive. If you find it useful, please give us a hand and donate what you can.
If you would like to help us with this effort, please contact us. We need help with programming (Java, JDO, mysql, and xml), design, networking, and publicity. If you want to contribute information to this site, click the register link at the top of the page, and start contributing.