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“The Patriot Act, which the president signed into law on October 2001”

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I only noticed two things that might generously be considered typos (as opposed to outright falsehoods or lies of omission) in Dick Cheney’s entire infernal tome. There’s this reference to an October 10, 2002 speech from Jello Jay Rockefeller in support of the Iraq war:

One of the most eloquent statements of the necessity of removing Saddam came from Senator Jay Rockefeller, the vice chairman of the Senate Intelligence Committee. (393)

On October 10, 2002, of course, Jello Jay was not yet Ranking Member of SSCI. Rather, Bob Graham was Chair. On October 10, 2002, Graham was saying the following about the war:

With sadness, I predict we will live to regret this day, Oct. 10, 2002, the day we stood by and we allowed these terrorist organizations to continue growing in the shadows.

[snip]

This timid resolution, I fear, will only increase the chance of Americans being killed, and that is not a burden of probability that I am prepared to take. Therefore I will vote no.

Yeah, Cheney’s misattribution probably wasn’t a typo, but instead a cynical attempt to pretend that the Democrat who had reviewed the intelligence behind the war most closely had backed the war, rather than correctly predicted it would heighten the threat of terrorism.

But I don’t think the grammatical error in the following passage, describing the relationship between Cheney’s illegal wiretap program and the PATRIOT Act (which turns 10 today), is really a typo either.

One of the first efforts we undertook after 9/11 to strengthen the country’s defenses was securing passage of the Patriot Act, which the president signed into law on October 2001.

Thus begins the passage in which Cheney describes the genesis of his illegal wiretap program. Of course, the passage should either say, “which the president signed into law on October 26, 2001,” or “which the president signed into law in October 2001.”
A minor point, but one that might suggest Cheney once had the date in there and then took it out.

You see, including the actual date would have really disrupted Cheney’s narrative, which suggests Congress passed the PATRIOT Act and only then did he begin thinking about how to use NSA to fight terrorism, which (implicitly) is why he didn’t include the illegal program in PATRIOT. After a description of how PATRIOT broke down the wall between intelligence and law enforcement in the first paragraph, Cheney continues,

I also thought it important to be sure the National Security Agency, or NSA, which is responsible for collecting intelligence about the communications of America’s adversaries, was doing everything possible to track the conversations of terrorists, so I asked George Tenet whether the NSA had all the authorities it needed. Tenet said he would check with General Mike Hayden, who was then director, and a short time later both of them came to see me in my office in the White House. Hayden explained that he had already made adjustments in the way NSA was collecting intelligence. Those adjustments were possible within NSA’s existing authorities, but additional authorities were needed in order to improve the coverage and effectiveness of the program.

A few paragraphs later, he continued.

With [Bush’s] approval, I asked Dave Addington to work with General Hayden and the president’s counsel, Alberto Gonzales, to develop a legal process by which we could ensure the NSA got the authorizations Hayden needed.

It’s only five paragraphs after Cheney’s description of PATRIOT that he provides the date that–had he actually included the date of the PATRIOT Act–would have made clear that the illegal program started before the signing of the PATRIOT Act.

On October 4, 2001, the president, on the recommendation of the director of central intelligence and the secretary of defense, which the determination of the attorney general that it was lawful to do so, authorized the program for the first time.

Of course, Cheney leaves out some key details along the way, such as that Hayden briefed the House Intelligence Committee about what he was already doing on October 1, which elicited some questions from Nancy Pelosi, then the Ranking Member on HPSCI. Cheney doesn’t mention that Bush clamped down on briefing Congress on October 5. And he doesn’t mention that Pelosi raised questions about minimization, in writing, on October 11, but never got answers to those questions.

Cheney also doesn’t mention that David Kris, who was busy drafting the PATRIOT Act, got an OLC opinion on September 25 approving the one change to FISA he deemed necessary to make with the PATRIOT.

To reveal those details–the briefings to Congress, Pelosi’s questions, Kris’ ability to get FISA changed under PATRIOT–would have made it clear that the rest of the “legal approval” process Cheney describes could have–should have–instead been done with Congress as part of the PATRIOT Act. I may be nitpicking here, writing an absurdly long post about Cheney’s use of the wrong preposition. But Cheney’s choice to bypass Congress even as it was making changes to FISA remains the biggest piece of evidence that he knew he was engaging in an illegal program that Congress would not entirely approve.

There will be a number of retrospectives in “honor” of PATRIOT Act’s birthday today. ACLU’s got a nifty infographic (the image above is just one part of it).

But ACLU’s other “tribute” to the PATRIOT–a lawsuit to force the government to reveal its secret interpretation of PATRIOT Act–and Cheney’s typographical tell that he recognizes he deliberately chose not to get Congressional approval for the illegal wiretap program are even more important.

As horrible as the PATRIOT Act is, after all, both the Bush Administration and the Obama Administration have exceeded the plain meaning of the act. For ten years, then, it has not been enough that Congress has eagerly dealt away our civil liberties. But the Executive Branch will take even what Congress won’t give.

FBI in Detroit Profiles Muslims and Arabs in Spite of 12 Whites Engaged in Terrorism

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As part of a new ACLU project to FOIA and map all the racial profiling the FBI has been doing, it liberated a Detroit FBI document describing its efforts to set up a “Domain Management” assessment (which seems to be a nice euphemism for racial profiling). It describes what it claims is the distinct counterterrorism threats in Michigan.

There are more than forty groups designated as terrorist organizations by the US State Department. Many of these groups originate in the Middle-East and Southeast Asia. Many of these groups also use an extreme and violent interpretation of the Muslim faith as justification for their activities. Because Michigan has large Middle-Eastern and Muslim population, it is prime territory for attempted radicalization and recruitment by these terrorist groups. Additionally, Sunni terrorist groups always pose a threat of attack on U.S. soil since it is the stated purpose of many of these groups. The Detroit Division Domain Team seeks to open a Type IV Domain Assessment for the purpose of collecting information and evaluating the threat posed by international terrorist groups conducting recruitment, radicalization, fund-raising, or even violent terrorist acts within the state of Michigan.

Of course, MI is not just home to a lot of Arab-Americans and Muslims. It’s also home to a bunch of right wing militias and all-around nutjobs. So using racial profiling to find terrorists–the FBI admittedly uses State’s list of international terrorists, which of course excludes domestic right wing terrorist groups–would miss the white terrorists we have in MI.

To give you an idea of what that would miss, I checked out all the press releases the Detroit FBI Office and US Attorney’s Office has put out since this document was written on July 6, 2009 to see what kind of crimes related to or possibly related to terrorism we’ve had in the state. Here’s what it showed.

  • October 28, 2009: 11 members of “Ummah” arrested, Imam Luqman Ameen Abdullah killed. (Ultimately the FBI backed off their claim these folks had any tie to terrorism.)
  • October 29, 2009: Mujahid Carswell (AKA Mujahid Abdullah) taken into custody by Canada’s RCMP for immigration violations.
  • October 31, 2009: Mohammad Alsahli (aka Muhammad Palestine) and Yassir Ali Khan taken into custody by Canada’s RCMP for immigration violations.
  • December 25, 2009: The Undie-Bomber tried to bring down a plane.
  • January 22, 2010: Syrian Mohamad Mustapha Ali Masfaka lied to Customs and Border Patrol agents about his ties to Holy Land Foundation; he was later convicted.
  • March 29, 2010: Nine white members of the Hutaree militia arrested for seditious plot to overthrow the government.
  • June 7, 2010: A 73-year old white man, Russell Hesch, and his son sent a letter to Bart Stupak threatening to paint the Mackinac Bridge with his blood in retaliation for voting for Obama’s health insurance reform.
  • April 21, 2011: A 42-year old white schizophrenic from the Upper Peninsula, Gary John Mikulich, planted a bomb outside the Federal Building.
  • August 3, 2011: Someone left a Molotov cocktail outside an abortion clinic in Detroit.
  • September 12, 2011: A Frontier Airlines flight was diverted because two men of Indian descent and a Saudi-Jewish woman, Shoshana Hebshi, had made a passenger suspicious.
  • September 23, 2011: A white St. Joseph man, Reed Berry, was arrested for ramming an FBI surveillance car; the agents were investigating him for alleged ties to a Foreign Terrorist Organization. (This was no in DOJ press releases, but since he was accused to foreign terrorist ties, this clearly fits.)
  • September 26, 2011: A white 64-year old man, John Lechner, arrested for having as much explosives as took down the Oklahoma City Murrah Federal building and talking about mercenaries. (Note, this was not in any FBI or DOJ press releases I could find.)

So while the FBI has been profiling Muslims (including, arguably, the African-American mosque the FBI labels the “Ummah”; while Shoshana Hebshi and the two Indian men were clearly profiled on 9/11, this was not by the FBI), 13 white people in Michigan have been alleged to engage in some kind of terrorism: The 9 members of the Hutaree, Russell Hesch threatening Stupak’s life, Gary Mikulich making a crazed bomb attack on the Federal building, John Lechner’s stash of 4000 pounds of explosives, plus the ties to a foreign terrorist organization the FBI alleges Reed Berry has (his attorney says they were surveilling Berry for protected speech). And that’s assuming the still unsolved clinic bomber was not white.

Not only will profiling result in the harassment of people like Hebshi and the extreme over-reaction of the FBI with Luqman.

But in MI, it also risks missing what–setting aside Luqman’s mosque–has actually been the majority of terrorists and alleged terrorists in recent years. That’s not just dumb. It’s dangerous.

Update: Added Lechner–h/t Lakeeffectsnow.

No Wonder the Administration Didn’t Want Buck McKeon’s New AUMF; Marty Lederman Already Gave Them One

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Glenn Greenwald has a typically provocative post on the news that Marty Lederman and David Barron wrote the authorization to kill Anwar al-Awlaki. He uses Dawn Johnsen’s comments on the way secret OLC memos create secret law that undermine democracy.

Obama’s original choice to head the OLC, Dawn Johnsen, repeatedly railed against this Bush practice of concealing OLC memos as “secret law,” writing that “the Bush Administration’s excessive reliance on ‘secret law’ threatens the effective functioning of American democracy” and “the withholding from Congress and the public of legal interpretations by the Justice Department Office of Legal Counsel (OLC) upsets the system of checks and balances between the executive and legislative branches of government.”  In her April, 2008 testimony before the Senate Judiciary Committee, she was nothing short of scathing on the practice of concealing OLC memos. [Glenn’s emphasis]

From there, he notes that Lederman and Barron used the same justification–the AUMF–that John Yoo used to justify the detention without due process of Jose Padilla.

So the AUMF allowed the President to designate Awlaki an “enemy combatant” without a shred of due process, and then to act against him using the powers of war, because we are at war with an entity for which Awlaki had become a combatant.

There are many problems with that reasoning, but one in particular that deserves attention now is this: that was exactly the theory repeatedly offered by the Bush DOJ for far less draconian acts than assassinating a U.S. citizen, and it was one that the very same Marty Lederman categorically rejected.  As I’ve noted many times, one of the most controversial Bush/Cheney acts was its claimed power to detain U.S. citizen Jose Padilla without charges or due process — not to kill him, but merely detain him — on the theory that the AUMF authorized the President to designate him as an “enemy combatant” and treat him accordingly. [Glenn’s emphasis]

I’m not sure I buy this comparison. There are times when the US might legally wage war against one of its citizens, but because of its own secrecy, the Administration has simply not made the case that that is true in this case.

One of the big problems with Lederman and Barron’s interpretation of the AUMF, though–one Glenn doesn’t treat closely but which perfectly exemplifies Johnsen’s point–is the extension of the AUMF to apply to AQAP, an entity that simply didn’t exist when the AUMF authorized war against groups that had launched 9/11.

Other assertions about Mr. Awlaki included that he was a leader of [AQAP], which had become a “cobelligerent” with Al Qaeda, and he was pushing it to focus on trying to attack the United States again. The lawyers were also told that capturing him alive among hostile armed allies might not be feasible if and when he were located.

Based on those premises, the Justice Department concluded that Mr. Awlaki was covered by the authorization to use military force against Al Qaeda that Congress enacted shortly after the terrorist attacks of Sept. 11, 2001 — meaning that he was a lawful target in the armed conflict unless some other legal prohibition trumped that authority.

One area where Lederman’s reported memo is particularly dangerous, IMO, is in the extension of the AUMF to groups clearly not included in the congressional authorization.

All the more so given events that have transpired since the memo was written in June 2010. One of the first things the new Chair of the House Armed Services Committee, Buck McKeon, did after last year’s election was to call for a new AUMF. Notably, he wanted to include Yemen (and AQAP) in the new AUMF. The Administration was disinterested in that new AUMF, stating they believed already had the authority to do what they need to.

They claim to have that authority, of course, because Marty Lederman said they have it.

No wonder they discouraged a new AUMF! An open debate over the new terms of the AUMF might interpret AQAP more restrictively than Lederman did in secret, which might have challenged the OLC memo authorizing the Awlaki killing (yeah, I know, the chances of that are almost nonexistent).

Furthermore, I wonder whether the Administration told Congress they had already effectively legally expanded the AUMF? McKeon counterpart Carl Levin’s call for the Administration to release the memo makes me wonder whether he has seen it, and if not whether he knows the Administration legally expanded the AUMF by secret fiat.

Which is why Glenn’s point that the Administration avoided not just Article III oversight, during the ACLU/CCR suit, on this killing, but also Congressional oversight is so important. I don’t support McKeon’s effort to write a new AUMF. But it is undeniable that Congress proposed changing the law in such a way that would have given the Awlaki killing more–though probably not adequate–sanction. Rather than embracing the opportunity by working with Congress to formally extend the war to Yemen and AQAP, the Administration instead operated with the secret self-sanction Lederman had already given it.

The Administration chose not to avail itself of the opportunity to explain in the context of an Article III court why it had the authority to kill Awlaki. So, too, it chose not to avail itself of the opportunity to negotiate with Congress to give the Awlaki killing more (though not adequate) legal sanction. Instead, it used its own secret law-making power to do what the other two branches of government could have done with transparency and legitimacy.

Update: Meanwhile, McKeon is holding the Defense Authorization hostage to his bigotry.

In Last Two Years, FBI Developed Intrusive Files on 77,100 Innocent Americans

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Charlie Savage has a story reporting on the number of assessments the FBI opened in the last two years that turned into preliminary investigations. It shows that over the period, the FBI has conducted assessments of 77,100 Americans whom they determined were not a cause for concern. Their investigations of 3,315 others turned into preliminary investigations.

Data from a recent two-year period showed that the bureau opened 82,325 assessments of people and groups in search for signs of wrongdoing. Agents closed out most of the assessments, the lowest-level of F.B.I. investigation, without finding information that justified a more intensive inquiry.

[snip]

The disclosure, covering March 25, 2009, to March 31, 2011, focused on assessments, which an agent may open “proactively or in response to investigative leads” and without first having a particular factual basis for suspecting a target of wrongdoing, according to the F.B.I. manual. Former Attorney General Michael Mukasey issued guidelines for the bureau creating that category in 2008.

During an assessment, agents may use a limited set of techniques, including searching databases about targets, conducting surveillance of their movements and sending a confidential informant to an organization’s meetings. But to use more intrusive techniques, like secretly reading e-mail, agents must open a more traditional “preliminary” or “full” investigation. Such inquiries require agents to first have a greater reason to start scrutinizing someone: either an “information or allegation” or an “articulable factual basis” indicating possible wrongdoing.

According to the data, during the 2009-11 period agents opened 42,888 assessments of people or groups to see whether they were terrorists or spies. A database search in May 2011 showed that 41,056 of the assessments had been closed. Information gathered by agents during those assessments had led to 1,986 preliminary or full investigations.

The data also showed that agents initiated 39,437 assessments of people or groups to see whether they were engaged in ordinary crime. Of those, 36,044 had been closed, while 1,329 preliminary or full investigations had been opened based on the information gathered.

The FBI would like to spin this as good news. Some of these investigations, Valerie Caproni explains in the story, would have been full-blown preliminary investigations in the past. But, as Mike German points out, the FBI is keeping records of all these searches.

The threat assessment conducted on Antiwar.com provides a really good example of what this means, even though it dates to an earlier period. That assessment–conducted in April 2004–fell under slightly different categories than the ones that generated these data. Nevertheless, the general guidelines (what FBI Agents could do to investigate these people) are roughly similar.

And what we saw in the threat assessment was the collection (and dissemination) of information that tied incidences of First Amendment protected activities of other people–an explosives suspect surfing the web, antiwar activists handing out literature at a peaceful protest–to criminal investigations. The result flips the notion of criminality on its head for the way other people’s potential criminal behavior gets lumped onto Antiwar’s free speech.

The Antiwar.com threat assessment also shows what this kind of assessment means in reality. The FBI searched somewhere between 2-4 public databases for information on Eric Garris and Justin Raimondo that they don’t want even to even admit searching publicly (they’ve exempted the disclosure under investigative techniques exemption).

Finally, the Antiwar.com threat assessment shows the kind of logic the FBI uses to advance to the next level: it found that Raimondo uses his middle name, that Antiwar.com posted a publicly available document (the watch lists showing terrorist suspects), and that some unsavory characters like white supremacists and explosives suspects had read their work. And from that–partly because Antiwar.com relies on donations for funding–the FBI decided it had sufficient basis to conduct a preliminary investigation into whether Garris and Raimondo are spies.

Obama DOJ Doubles Down on President’s Ability to Detain US Citizens with No Charges

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Back in February, Obama’s DOJ stopped defending Donald Rumsfeld and others in Jose Padilla’s Bivens suit against them (though we’re still footing the bill for their pricey lawyers). At the time, it seemed DOJ might have concerns about the claims Rummy’s crew wanted to make about the torture Padilla was suing for.

But DOJ just filed an amicus brief in Padilla’s appeal. In it, they basically double down on the claim the President can deprive a citizen already detained in the US of all due process simply by engaging in some specious word games (in this case, by unilaterally labeling someone an enemy combatant).

Critically, the government is dodging the question of what happens in detention; as I’ll show below, rather than addressing that torture, they simply engage in circular logic.

Remember why Padilla is suing: he’s arguing that Rummy’s crowd violated his constitutional rights by seizing him from a civilian jail, designating him an enemy combatant, using that designation to deprive him of due process, and while he was detained on those terms, torturing him. He’s arguing the government violated his constitutional rights both by depriving him of due process and then torturing him. Illegal detention to enable illegal torture. The government wants to pretend they can separate those issues and argue just the basis for detention.

The government argues that allowing Padilla to sue for that treatment would infringe on national security.

Where, as here, the claims principally implicate national security and war powers, courts have recognized that it is not appropriate to create a common-law damage remedy.

Once again, they’re arguing that if the President says he did something–no matter how clearly unconstitutional–for national security reasons, citizens have no recourse against the President or his top aides.

After arguing “national security” as a threshold matter, the government then makes a threefold argument: Padilla should not have access to Bivens because Congress gave him another means of recourse–a habeas corpus petition (that doesn’t address torture, but the government claims UMCJ addresses torture, even though the defendants here are civilians).

Padilla had a congressionally-authorized mechanism for challenging the lawfulness of his detention. In the wartime context presented, the habeas process should preclude the creation of a Bivens remedy.

Then the government argues that since this very court–the Fourth Circuit–okayed Padilla’s detention in 2005, it’s clear Rummy must have qualified immunity because it was reasonable to think military detention of a citizen was cool.

The issue here, for the purposes of qualified immunity, is not whether this Court’s decision was correct, whether the Supreme Court would have agreed had it reviewed the decision, or whether the detention of Padilla was ultimately constitutional or appropriate as a matter of policy. The issue, rather, is whether the conclusion by three Judges of this Court upholding the detention rebuts any claim that the contrary view was clearly established at the time. It does.

The government’s brief makes no mention of the Michael Luttig opinion cited in Padilla’s appeal that suggested the government’s legal treatment of Padilla was all about expediency, not justice, nor does it here mention the torture allegations.

Finally, it says Rummy shouldn’t be held liable for Padilla’s torture because Iqbal requires Padilla show further proof of personal involvement in his treatment.

But ultimately, all that is based on the notion that no one could have known detaining a US citizen with no due process was unconstitutional.

Now, as I said, the government tries to sever the relationship between Padilla’s illegal detention and his treatment while in detention. Given my earlier speculation that the government withdrew from defending Rummy because Padilla is suing, in part, for the death threats he was subjected to in prison–treatment John Yoo found to be (and communicated to Jim Haynes, another defendant in this suit, to be) torture–I find the government’s circular logic to be particularly telling.

To explain their failure to treat torture in their filing, they say 1) that the other defendants are addressing it and 2) they don’t have to deal with it anyway because the President has said the US does not engage in torture (which is precisely what Bush said when torture was official policy):

In this brief, we do not address the details of Padilla’s specific treatment allegations, which have already been thoroughly briefed by the individual defendants.1

1 Notwithstanding the nature of Padilla’s allegations, this case does not require the court to consider the definition of torture. Torture is flatly illegal and the government has repudiated it in the strongest terms. Federal law makes it a criminal offense to engage in torture, to attempt to commit torture, or to conspire to commit torture outside the United States. See 18 U.S.C. § 2340A. Moreover, consistent with treaty obligations, the President has stated unequivocally that the United States does not engage in torture, see May 21, 2009 Remarks by the President on National Security.

Note that bit, though, where the government acknowledges that torture is illegal?

That’s important, because they base their objections to the Bivens complaint in part on the possibility that a court could review Padilla’s treatment–treatment he alleges amounts to torture, which the government accepts is illegal–and determine whether it was in fact torture and therefore illegal.

Padilla also seeks damages in regard to the lawfulness of his treatment while in military detention. Thus, a court would have to inquire into, and rule on the lawfulness of, the conditions of Padilla’s military confinement and the interrogation techniques employed against him. Congress has not provided any such cause of action, and, as the district court concluded (JA 1522), a court should not create a remedy in these circumstances given the national security and war powers implications.

And they’re arguing Congress–which passed laws making torture illegal (to say nothing of the Constitution prohibiting cruel and unusual punishment)–didn’t provide for a cause of action.

All this implicates the government’s discussion of Padilla’s lack of access to lawyers, too. They claim he can’t complain about not having access to the courts because he can’t point to any claim he was prevented from making while deprived of his lawyers and access to law.

Padilla’s access to the courts claim (Br. 36) likewise fails. To properly allege such a claim, one must identify a legal claim that could not be brought because of the actions of the defendants. See Christopher v. Harbury, 536 U.S. 403, 412-15 (2002). Here, the only such claim was Padilla’s habeas action, which he was able to litigate.

This, in spite of the fact that the Appeal notes the limits on his access to lawyers presented specific barriers for him to complain about his treatment.

Padilla was told not to trust his lawyers and warned against revealing his mistreatment.

Now, frankly, I suspect this effort is all part of a strategy the government devised back in February, when they dumped Rummy.

Rummy needs them to make the threshold argument–that this is a national security issue, meaning the courts should butt out.

But the government seems to have clear awareness that Padilla alleges–with some basis in fact–to have been tortured and that it can’t defend against the torture complaint because they know it was torture and know at least some of the named defendants knew it was torture (and note, the judge in Padilla’s criminal case, as well as judges in other cases where the accused was tortured, always say the torture victim can make a Bivens complaint.)

But that’s not stopping them from saying that, by applying an arbitrary label with no review, they should be able to ignore very clear constitutional principles. And if it was okay for the government to use an arbitrary label in the past to completely ignore the Constitution, then it would be okay going forward to do the same.

ACLU FOIAs WikiLeaks Cables

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Back in April, the ACLU FOIAed a bunch of State Department cables that had been released via WikiLeaks. The State Department made no response. So now the ACLU is suing to get the cables.

The suit is interesting for several reasons. First, check out which cables ACLU has FOIAed:

The requested cables relate to the United States’ diplomatic response to foreign investigations of United States abduction, interrogation, detention, and rendition practices; efforts by the Federal government to prosecute or release former and current Guantanamo detainees; the United States’ use of unmanned aerial vehicles; and the diplomatic efforts surrounding President Obama’s decision to oppose the release of photographs depicting U.S. interrogations of persons suspected of terrorism.

The ACLU is focusing on cables that cut to the heart of America’s hypocrisy on human rights and international law.

As the suit suggests, it wants the government to have to confirm or deny whether the discussions depicted in the cables actually happened.

In spite of the urgent national interest and extensive media coverage surrounding the alleged diplomatic cables, at the time this FOIA request was made, DOS had not yet informed the American people whether the disclosed documents referred to actual federal government activity. Nor has it done so to date.

Mind you, we know they really happened–but by releasing the cables through FOIA, the State Department will have to admit it. And if they have to admit it, it will become harder to keep quashing these investigations.

(As luck would have it, the European Parliament yesterday just passed a resolution that “Calls on the EU and Member States authorities, as well as the US authorities, to ensure that full, fair, effective, independent and impartial inquiries and investigations are carried out into human rights violations and crimes under international, European and national law, and to bring to justice those responsible, including in the framework of the CIA extraordinary renditions and secret prisons programme;”)

Plus, this suit will be an interesting parallel proceeding to the government’s plodding formulation of guidelines that will allow Gitmo defense lawyers some access to the Gitmo Documents that describe their clients.

Finally, there’s one other interesting wrinkle here. Many of these documents seemingly should have been turned over in the ACLU’s (and CCR’s) previous FOIAs on torture and rendition. So will this FOIA suit force the State Department to admit whether it was blowing off a FOIA in the past?

Here’s the actual request from April. The cables they’ve requested are below:

SPAIN STILL INTERESTED IN GUANTANAMO DETAINEES, BUT NOT OPTIMISTIC ABOUT CONVICTION

SPAIN: PROSECUTOR WEIGHS GTMO CRIMINAL CASE VS. FORMER USG OFFICIALS

SPAIN: ATTORNEY GENERAL RECOMMENDS COURT NOT PURSUE GTMO CRIMINAL CASE VS. FORMER USG OFFICIALS

GARZON OPENS SECOND INVESTIGATION INTO ALLEGED U.S. TORTURE OF TERRORISM DETAINEES

GOT ASKS EUROPEANS NOT TO TAKE TUNISIAN GUANTANAMO DETAINEES

SUBJECT: REQUEST FOR EXPLANATION OF RETURNED DETAINEE ARM DISABILITY

COUNSELOR, CSIS DIRECTOR DISCUSS CT THREATS, PAKISTAN, AFGHANISTAN, IRAN

TO HELL AND BACK: GITMO EX-DETAINEE STUMPS IN LUXEMBOURG

FRENCH JUDGE SAYS C/T FOCUS IS ON “JIHADISTS TO IRAQ”

TWO EX-GTMO DETAINEES CHARGED WITH TERRORIST CONSPIRACY BUT ONE ORDERED RELEASED ON BAIL

DOD INTEL FLIGHTS: FCO CLARIFIES

EMERGING CONSTRAINTS ON U.S. MILITARY TRANSITS AT SHANNON

PORTUGUESE FM OFFERS TO RESIGN IF CIA FLIGHT ALLEGATIONS PROVE TRUE

GENERAL PETRAEUS’ MEETING WITH SALEH ON SECURITY ASSISTANCE, AQAP STRIKES

GILANI TO CODEL SNOWE: HELP US HIT TARGETS

USDP EDELMAN’S OCTOBER 15 MEETINGS IN LONDON

SPECIAL ADVISOR HOLBROOKE’S MEETING WITH SAUDI ASSISTANT INTERIOR MINISTER PRINCE MOHAMMED BIN NAYEF

SWISS COUNTERTERRORISM OVERVIEW – SCENESETTER FOR FBI DIRECTOR MUELLER

GOS “HEADS UP”: SWISS FEDERAL PROSECUTOR TO ANNOUNCE FINDINGS ON OVERFLIGHT INVESTIGATION

SECDEF MEETING WITH ITALIAN PRIME MINISTER SILVIO BERLUSCONI, FEBRUARY 6, 201…

NETHERLANDS: TOUR D’HORIZON WITH FOREIGN MINISTER BOT

AL-MASRI CASE — CHANCELLERY AWARE OF USG CONCERNS

Newly Released OLC Opinion Reveals How Yoo Relied on Eliminating Fourth Amendment to Wiretap Illegally

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As Josh Gerstein and Jack Goldsmith note, DOJ just released two of the opinions underlying the warrantless wiretap programs. They both focus on the May 6, 2004 opinion Goldsmith wrote in the wake of the hospital confrontation; I’ll have far more to say about that opinion later today and/or tomorrow.

But I wanted to look at what the highly redacted opinion John Yoo wrote on November 2, 2001 tells us.

The opinion is so completely redacted we only get snippets. Those snippets are, in part:

FISA only provides safe harbor for electronic surveillance, and cannot restrict the President’s ability to engage in warrantless searches that protect the national security.

[snip]

Thus, unless Congress made a clear statement that it sought to restrict presidential authority to conduct warrantless searches in the national security area–which it has not–then the statute must be construed to avoid such a reading.

[snip]

intelligence gathering in direct support of military operations does not trigger constitutional rights against illegal searches and seizures.

[snip]

A warrantless search can be constitutional “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”

To understand what those quotes mean, it helps to recall that on October 23, 2001, John Yoo and Robert Delahunty wrote another memo assessing whether the military could deploy in the US in a war against terrorists. It concludes, in part, that,

Fourth, we turn to the question whether the Fourth Amendment would apply to the use of the military domestically against foreign terrorists. Although the situation is novel (at least in the nation’s recent experience), we think that the better view is that the Fourth Amendment would not apply in these circumstances. Thus, for example, we do not think that a military commander carrying out a raid on a terrorist cell would be required to demonstrate probable cause or to obtain a warrant.

Fifth, we examine the consequences of assuming that the Fourth Amendment applies to domestic military operations against terrorists. Even if such were the case, we believe that the courts would not generally require a warrant, at least when the action was authorized by the President or other high executive branch official. The Government’s compelling interest in protecting the nation from attack and in prosecuting the war effort would outweigh the relevant privacy interests, making the search or seizure reasonable.

It relies on the hypothetical in which a military commander searches an entire apartment building for the WMD inside.

Consider, for example, a case in which a military commander, authorized to use force domestically, received information that, although credible, did not amount to probable cause, that a terrorist group had concealed a weapon of mass destruction in an apartment building. In order to prevent a disaster in which hundreds or thousands of lives would be lost, the commander should be able to immediately seize and secure the entire building, evacuate and search the premises, and detain, search, and interrogate everyone found inside.

As I have suggested in the past, it helps to replace “apartment building” with “email server” to understand the implications of such an opinion given that our wiretapping is done by military commanders at the NSA.

In other words, on October 23, 2001, Yoo wrote an opinion largely justifying searches by military commanders domestically.

And then on November 2, 2001, he interpreted wiretapping as a search (presumably arguing that since we were vacuuming up all data signals, we were obtaining physical possession of them that thereby got around restrictions on electronic surveillance, at least in Yoo’s addled little mind).

Of course, the Fourth Amendment opinion is utterly ridiculous. But they were still relying on it until October 6, 2008, even while equivocating to members of Congress about doing so.

So you see, Cheney’s illegal wiretapping program was totally legal. What you didn’t know, though, is that the Fourth Amendment is just a quaint artifact of time before 9/11.

Judge: Government Can Shield Its Conversations about Engaging in Torture

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Josh Gerstein reports that a Federal Judge has rejected ACLU’s effort to get the government to remove more of the redactions in the OPR Report on the torture memos. Judge Rosemary Collyer basically argued that the President’s need to get candid advice on how to make torture legal trumps citizens’ right to know about such illegal activity.

Rather than arguing that exemptions (b)(1) and (3) are inapplicable under the Executive Order or the proffered statutes, Plaintiffs argue that the substance of the redactions: (1) the names of the detainees; and (2) the “actual and potential implementation” of “enhanced interrogation techniques,” including “conditions of confinement” that functioned as part of the “enhanced interrogation techniques,” are unlawful, and therefore fall outside the protection of “intelligence sources and methods” granted by those exemptions. Pls.’ Mem. at 11–24. But, as recently stated by the D.C. Circuit, the illegality of information is immaterial to the classification of such information under exemptions (b)(1) and (3) as intelligent sources or methods.

[snip]

While the Court recognizes the public’s interest, this interest does not overcome the need for frank discussions on serious issues that confront a President. Without a free and candid dialectic, the President cannot be properly armed with the tools required to make difficult decisions on consequential issues. Because the declaration sufficiently details its rationale for redaction, and because the public’s interest does not overcome the privilege in this case, the Court finds that Defendant has satisfied its burden as to the limited redactions withheld pursuant to the presidential communications privilege.

Mind you, the Judge is reading broadly here. For at least one of the meetings, we have evidence a decision was made without the input of the President. Yet she has interpreted meetings of Administration officials where Bush was absent as Presidential communications.

So in reality, she’s not just shielding Bush’s decisions, she’s shielding Cheney’s and Alberto Gonzales’ decisions as well. Eh, I guess she thinks Cheney was really in charge?

Where Judge Collyer’s opinion gets really crazy is where she accepts the government’s argument that, having left its discussion about “mock burial” unredacted in one instance, it does not have to reveal the other instances.

Plaintiffs next argue that the name of the interrogation technique that the CIA considered using, i.e. “mock burial,” has already been unclassifed and thus should be disclosed. It is true that when the government has officially acknowledged information, a FOIA plaintiff may compel disclosure of that information even over an agency’s otherwise valid exemption claim. See Wolf, 473 F.3d at 378; Fitzgibbon, 911 F.2d at 765. For information to qualify as “officially acknowledged,” however, it must satisfy three criteria: (1) the information requested must be as specific as the information previously released; (2) the information requested must match the information previously disclosed; and (3) the information requested must already have been made public through an official and documented disclosure. Id. After reviewing additional information in camera, the Court finds that the redacted information does not match the very broad information previously disclosed. Due to the specificity and context of the redacted information, coupled with the agency affidavit that affirmatively states that: “notwithstanding these prior disclosures (which I took into account when reviewing the Report), many details of the detention and interrogation program and the intelligence activities undertaken in support of it remain classified,” Payne Decl. ¶ 28, the Court is satisfied that this redacted information has not been already “officially acknowledged,” and thus is appropriately redacted pursuant to exemptions (b)(1) and (3) as “intelligent sources or methods.”

Maybe this is particularly sensitive because they actually did use mock burial and mock executions with detainees but didn’t prosecute? Or maybe the CIA just asked her, on the basis that they sometimes referred to mock execution and other times referred to mock burial and other times referred to death threats, these are different specifics?

It gets worse. If you want to ruin your appetite, click through and see how she justified sustaining the redactions of Jennifer Koester’s name.

Dear Judge Hellerstein: Ask About the OLC Torture Documents, Too

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On Friday, Judge Alvin Hellerstein had a hearing to figure out how to end the contempt suit the ACLU brought against the CIA for destroying the torture tapes. The ACLU asked that he hold the CIA in contempt. Hellerstein said that wouldn’t serve much purpose. The ACLU suggested that he could hold individuals–presumably meaning Jose Rodriguez–in contempt. In the end, Hellerstein asked the two sides to brief him with suggestions. He seems likely, however, to do two things:

  • Require the CIA to do a report for him to explain how they’ll prevent such a thing from happening in the future
  • Meet with John Durham to hear what he learned in his investigation and make as much of that public as possible

Now, I’m all in favor of getting a very complete report very public report of how the CIA destroyed evidence of torture. The citizens of this country deserve–at the very least–an overview of the investigation and a clear explanation of the roles of the public figures like Porter Goss and John Rizzo. We deserve to know what John McPherson said about the earlier damage done to the torture tapes after John Durham immunized him–and whether Jose Rodriguez and George Tenet pressured him to lie about it. We deserve to know how this relates to all the lies CIA told Congress. We deserve to know each point when the White House got involved in this process.

But I bet you a quarter that Durham will say he can’t make any of this public, because of that mythic ongoing investigation into torture.

It’s what they do.

But as for the homework assignment Hellerstein plans on giving the CIA, to provide him with a report that will convince them they will prevent this kind of evidence disappearing in the future?

It has to go further than the torture tapes themselves.

As I cataloged last year, a great deal of evidence pertaining to torture disappeared over the years:

  • Before May 2003: 15 of 92 torture tapes erased or damaged
  • Early 2003: Gitmo commander Mike Dunlavey’s paper trail documenting the torture discussions surrounding Mohammed al-Qahtani “lost”
  • Before August 2004: John Yoo and Patrick Philbin’s torture memo emails deleted
  • June 2005: most copies of Philip Zelikow’s dissent to the May 2005 CAT memo destroyed
  • November 8-9, 2005: 92 torture tapes destroyed
  • July 2007 (probably): 10 documents from OLC SCIF disappear
  • December 19, 2007: Fire breaks out in Cheney’s office

While we have no idea what, if anything, got destroyed in Cheney’s fire, we do know that CIA, DOD, DOJ, and the State Department (along with whoever owned the server on which John Yoo sent his most classified emails about torture) all somehow “lost” evidence pertaining to torture. It’s not just CIA’s problem, it’s the entire executive branch, seemingly losing torture evidence left and right.

And at the very least, Hellerstein ought to demand the very same kind of report from DOJ as he’s asking for from CIA. I mean, has DOJ done anything to make sure the drafts that go into our secret legal opinions authorizing the executive branch to ignore the law don’t disappear, as they did here?? Has DOJ done even the presumably minimal things CIA has done to make sure such documents don’t keep disappearing when they become inconvenient or dangerous? And what about John Yoo’s emails? What has DOJ done, Judge Hellerstein should ask, to find John Yoo’s missing emails and make sure similar emails don’t go missing in the future?

It’s not just the CIA that treated Judge Hellerstein’s order with contempt. So did DOJ. And yet our Justice Department is not even being held to the very low standard that our nation’s spooks are.

Obama Signs Non-Signing Statement

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Obama has signed the Defense Authorization Act that barred funding for closing Gitmo. And his signing statement–really more of a complaint than an actual signing statement–reads in part:

Section 1032 bars the use of funds authorized to be appropriated by this Act for fiscal year 2011 to transfer Guantanamo detainees into the United States, and section 1033 bars the use of certain funds to transfer detainees to the custody or effective control of foreign countries unless specified conditions are met.  Section 1032 represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests.  The prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must be among the options available to us.  Any attempt to deprive the executive branch of that tool undermines our Nation’s counterterrorism efforts and has the potential to harm our national security.

With respect to section 1033, the restrictions on the transfer of detainees to the custody or effective control of foreign countries interfere with the authority of the executive branch to make important and consequential foreign policy and national security determinations regarding whether and under what circumstances such transfers should occur in the context of an ongoing armed conflict.  We must have the ability to act swiftly and to have broad flexibility in conducting our negotiations with foreign countries.  The executive branch has sought and obtained from countries that are prospective recipients of Guantanamo detainees assurances that they will take or have taken measures reasonably designed to be effective in preventing, or ensuring against, returned detainees taking action to threaten the United States or engage in terrorist activities.  Consistent with existing statutes, the executive branch has kept the Congress informed about these assurances and notified the Congress prior to transfers.  Requiring the executive branch to certify to additional conditions would hinder the conduct of delicate negotiations with foreign countries and therefore the effort to conclude detainee transfers in accord with our national security.

Despite my strong objection to these provisions, which my Administration has consistently opposed, I have signed this Act because of the importance of authorizing appropriations for, among other things, our military activities in 2011.

Nevertheless, my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.

Now, don’t get me wrong, I’m happy Obama hasn’t issued a real signing statement (a la “Dear Congress: Fuck you. Cheney George”). But this is basically a big punt. It doesn’t talk about constitutional limits on the President (again, of that I’m glad). It doesn’t note that the defense authorization only limits what he can do with defense funds, not DOJ or DHS funds (as ACLU noted). Neither does he use ACLU’s other suggestion: to point out to Congress that these provisions amount to a Bill of Attainder.

At the same time, he does argue for the importance of these issues: “The prosecution of terrorists in Federal court … must be among the options available to us” … “Requiring the executive branch to certify to additional conditions would hinder the conduct of delicate negotiations with foreign countries.” He should practice these statements in front of a mirror, along with his point about how they affect national security, because making these statements forcefully in some kind of public venue might actually pressure Congress on this point.

But ultimately, the statement accepts the statements as is–so long as they don’t get bigger!

Nevertheless, my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.

From my perspective, I guess, this punt is as good as can be expected. I prefer this to an expansive signing statement of the Dick Cheney variety. I recognize that the time for Obama to act on this was two years ago and two weeks ago, not now.

But hey! At least he said nice things about civilian courts!