Nadler and State Secrets

Yesterday, Jerrold Nadler announced he will hold a hearing on state secrets on Thursday.

Congressman Jerrold Nadler (NY-08), Chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, will chair a legislative hearing on H. R. 984, the State Secret Protection Act of 2009, his bill to reform the state secret privilege. This hearing will examine the standard of review for what qualifies as a state secret and how best this privilege should be reformed. The hearing will take place on Thursday, June 4th at 2:00pm in Rayburn House Office Building, Room 2141, Washington, D.C.

The state secret privilege allows the government to withhold evidence in litigation if its disclosure would harm national security. The purpose of the privilege is to protect legitimate state secrets; but if not properly policed, it can be abused to conceal embarrassing or unlawful conduct whose disclosure poses no genuine threat to national security. Nadler’s bipartisan bill, the State Secret Protection Act of 2009, co-sponsored by Rep. Thomas Petri (WI-6), would ensure meaningful judicial review of the privilege and prevent premature dismissal of claims. The bill aims to curb abuse of the privilege while protecting valid state secrets.

As it happens, at the same time they announced this, Nadler was speaking on a panel with me about accountability for torture (I’m looking for video–but it may take a while to find it). And he focused closely on state secrets.

Interestingly, he was speaking of state secrets as a means of accountability for not just torture but (obviously) illegal wiretapping. 

Mind you, Nadler is also pushing for an independent prosecutor on torture, so he’s not proposing lawsuits as the sole means for accountability. But he’s thinking of it as a means for accountability.

It seems there are a few problems with that. First, timing. Yes, if state secrets were changed, Binyam Mohamad’s suits could move forward. But for others, a lawsuit would just begin to wend its ways through the courts, but take years and years to resolve.

Furthermore, it’s not just state secrets that protects the wrong-doers. It’s also protections of federal employees from suit. While a lawsuit might expose the wrong-doing of the Bush Administration, it’s not going to land Dick Cheney in jail.

And, ultimately, it’s a concession of Congress’ own failures. When Chris Anders, ACLU’s legislative counsel, argued that indefinite detention would not pass Congress, Nadler pointed to the FISA Read more

Conyers (et al) to Archivist: How Successful Were They at Destroying Evidence?

I’m unsurprised that John Conyers, Howard Berman, Jerry Nadler, and Bill Delahunt have written to Hillary Clinton asking for copies of Philip Zelikow’s dissent to Steven Bradbury’s torture memo.

Despite the reported effort he describes to destroy all copies of the memorandum, Professor Zelikow nevertheless believes that "one or two [copies] are still at least in the State Department’s archives."

Of course one of the Committees was going to get this document. 

I’m a lot more interested in their letter to the acting Archivist, asking for any copies in the George W Bush archives.

While we have requested this memorandum from the State Department archives, any copies available from the George W. Bush records are also necessary to determine as completely as possible the full circulation of this important document.

That’s because if the memo isn’t there, then not only is it suggestive of criminal intent, but it also violates the Presidential Records Act. In addition to the memo itself, they ask for:

(2) Copies of any "documentary materials" as defined in the President Records Act, that are related to or reflect any effort by an official of the Bush Administration to collect, destroy, or impede the preservation or retention of this memorandum, including records of any National Security Council meetings or National Security Council Deputies meetings at which the memorandum was discussed.

As you know, the National Security Council is a component of the Executive Office of the President, and its records are in almost all cases President Records which the Act requires to be preserved. Thus, depending on the precise circulation of Professor Zelikow’s dissenting memorandum, the effort he describes to "collect and destroy all copies" of the memorandum raises serious questions of a possible violation of, or conspiracy to violate, the Act, or another breach of federal law.

(3) Copies of any "documentary materials," as defined in the Presidential Records Act, that mention or refer to the Zelikow memorandum.


… the requested documents may shed light on the adequacy and completeness of the former Administration’s consideration of these issues over time. [my emphasis]

Well, the normally careful David Addington (if that’s who told Zelikow to destroy the memo) got himself into a pickle with this one. 

Addington’s Multiple Choice Torture Memos

When I read the transcript from the House Judiciary Committee’s Assholes Who Torture hearing after the torture memos got released, one thing became clear. Addington was hiding his involvement with the Bybee Two memo (about techniques) by answering questions only about Bybee One.

Twice during the hearing, David Addington answered a question about the  Bybee One memo (abstract authorization for torture–which had been declassified long before this hearing), but made sure to clarify in the record that his answer pertained specifically to that memo. This suggests his answers may have been dramatically different had he been asked about the Bybee Two memo (concrete techniques–the one released last month). If I’m right, it suggests that Addington discussed the Bybee Two memo on his September 25, 2002 field trip to Gitmo with John Yoo, Jim Haynes, and John Rizzo (and others). 

In the first of these exchanges, Jerry Nadler asks Addington what role he had in drafting the Bybee memo (without specifying which one he meant).

Mr. NADLER.  Mr. Addington, It has been reported in several books and in the The Washington Post that you contributed to the analysis or assisted in the drafting of the August 1, 2002 interrogation memo signed by Jay Bibey. [sic] Is this correct?


Mr. NADLER. You had nothing to do with that.

Mr. ADDINGTON. No. I didn’t say I had nothing to do with it. You asked if I assisted in contribution, and let me read to you something I think will be helpful to you.

Addington filibusters for a bit, so Nadler interrupts and instructs him to tell what his role was (did I mention this was the Assholes Who Torture hearing?). 

Mr. NADLER. Wait a minute. Mr. Addington, please, we don’t need all these quotes.


Mr. NADLER. Just tell us what your role was, if you can.

Mr. ADDINGTON. Yes, I will.

At which point Addington asks precisely which one Nadler was talking about.

Mr. NADLER. Because you said it wasn’t nonexistant but you didn’t help shape it. So what was it?

Mr. ADDINGTON. Mr. Chairman, my recollection, first of all, I would be interested in seeing the document you are questioning me about. I think you are talking about a document of August 2002.

Mr. NADLER. Yes.

Mr. ADDINGTON. It would be useful to have that in front of me so I can make sure that what I am remembering relates to the document you have and not a lot of other legal opinions I looked at. Read more

Jerrold Nadler: We Must Investigate Torture … and Fix State Secrets

nadler.thumbnail.jpgJane and I had a chat yesterday with Jerrold Nadler (D-NY), the Chair of the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties, to talk about his call for a special prosecutor to investigate the torture program. Chairman Nadler was clear:  "You don’t have much choice under the law–you have to investigate." The law requires, he explained, that such allegations be investigated. And if warranted, suspected crimes associated with torture must be prosecuted.

Nadler repeated, though, an important point. That the Justice Department, not the White House, must make these decisions. But, since the Department is implicated because of Bybee’s and Yoo’s role in the memos, we should have a Special Prosecutor to conduct the investigation.

As important as are Congressman Nadler’s calls for a special prosecutor, I was just as interested in his discusison about his efforts to introduce some checks on the use of state secrets to avoid prosecution. Nadler has introduced a bill that would introduce a process akin to the CIPA process (used during the Scooter Libby trial), where a judge would review evidence both to determine standing in a case, as well as determine whether substitutions for sensitive national security information could be used to litigate the case.

The bill, Nadler explained, is awaiting a committee hearing. But he is trying to get some support from DOJ for the bill before entering into hearings. Nadler recently met with Attorney General Eric Holder on this and a host of other issues (enemy combatant doctrine, the al-Marri case, warrantless wiretapping, the OPR investigation, as well as the torture memos). And, Nadler says, Holder seemed to agree to the principle, at least, of having some kind of CIPA-like process to state secrets.

Ultimately, Nadler contends (absolutely correctly, IMO), that the government should not be able to dismiss a suit by withholding evidence under state secrets. 

Between the Jeppesen Dataplan suit, the Binyam Mohammed suit, al-Haramain and all the rest of the warrantless wiretapping suits, preventing the government from demanding dismissal of a suit because of state secrets would go a long way to ensuring accountability when the government breaks the law. 

The State Secret Protection Act

This will get dragged into court right away, even assuming Congressmen Conyers, Nadler, Delahunt, Petri and Congresswoman Lofgren can get it passed. Still, with Obama’s inexcusable support for Bush’s state secrets invocation the other day, there’s no time like the present to really push this bill, which would establish a CIPA-like process to allow the admission of evidence over which the executive has invoked State Secrets. (via email)

Congressmembers Jerrold Nadler (NY-08), Chair of the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, Thomas Petri (WI-6), House Judiciary Chairman John Conyers, Jr. (MI-14), Bill Delahunt (MA-10) and Zoe Lofgren (CA-16) today reintroduced legislation that would ensure meaningful judicial determination of the state secrets privilege. The bi-partisan State Secret Protection Act of 2009 would curb abuse of the privilege while providing protection for valid state secrets.

"The Administration’s decision this week to adopt its predecessor’s argument that the state secret privilege requires the outright dismissal of a case challenging rendition to torture was a step in the wrong direction and a reminder that legislation is required to ensure meaningful review of the state secret privilege," said Rep. Nadler. "This important bill recognizes that protecting sensitive information is an important responsibility for any administration and requires that courts protect legitimate state secrets while preventing the premature and sweeping dismissal of entire cases. The right to have one’s day in court is fundamental to protecting basic civil liberties and it must not be sacrificed to overbroad claims of secrecy."

Rep. Petri commented, "Imagine the government locks you up but says you can’t see the evidence for reasons of national security. I’m sure there are cases where national security is truly at risk, and that information must be protected. But we shouldn’t have to simply take the executive branch’s word for it. Shouldn’t an independent, responsible party apart from the executive branch review the material to determine when and how national security really necessitates restricting the use of sensitive material? The answer is, quite obviously, yes. We have a procedure for criminal cases, and we need one for civil cases as well."

"National security and the search for justice are not mutually exclusive," said Rep. Zoe Lofgren. "By allowing a neutral arbiter to evaluate assertions of the state secret privilege with appropriate safeguards to protect national security information, the State Secret Protection Act strikes the appropriate balance between protecting our national security and protecting the rights of citizens."

Read more

Pat Leahy Calls for Truth Commission

I want prosecutions. But seeing as how it looks increasingly likely we won’t get that, I want some accounting for the crimes of the Bush Administration. Today, Pat Leahy joined his counter-part in the House, John Conyers, as well as the Chair of the Senate Armed Services Committee, Carl Levin, in calling for a committee to examine the wrong-doing of the Bush Administration. 

The President is right that we need to focus on fixing the problems that exist and improving the future for hardworking Americans. I wholeheartedly agree and expect the Judiciary Committee and the Senate to act accordingly. But that does not mean that we should abandon seeking ways to provide accountability for what has been a dangerous and disastrous diversion from American law and values. Many Americans feel we need to get to the bottom of what went wrong. We need to be able to read the page before we turn it.

We will work with the Obama administration to fix those parts of our government that went off course. The Office of Legal Counsel at the Justice Department is one of those institutions that was hijacked and must be restored. There must be review and revision of that office’s legal work of the last eight years, when so much of that work was kept secret.

We have succeeded over the last two years in revitalizing our Committee’s oversight capabilities. The periodic oversight hearings with the Attorney General, the FBI Director, the Secretary of Homeland Security, and others will continue. The past can be prologue unless we set things right.

As to the best course of action for bringing a reckoning for the actions of the past eight years, there has been heated disagreement. There are some who resist any effort to investigate the misdeeds of the recent past. Indeed, some Republican Senators tried to extract a devil’s bargain from the Attorney General nominee in exchange for their votes, a commitment that he would not prosecute for anything that happened on President Bush’s watch. That is a pledge no prosecutor should give, and Eric Holder did not, but because he did not, it accounts for many of the partisan votes against him.

There are others who say that, even if it takes all of the next eight years, divides this country, and distracts from the necessary priority Read more

The Logic Behind the Script “The Removal of Clothing Is Not Nudity”

Watching the lawyers who established the torture regime a few weeks ago was particularly stunning in one respect. Jim Haynes, Dougie Feith, Jane Dalton, Diane Beaver–all of them at some point in the hearings repeated the non-sensical claim, "the removal of clothing is not nudity" (or naked).

In this video, for example, Jerrold Nadler asks Dougie Feith,

Nadler: How could you force someone to be naked and undergo a twenty hour interrogation?

Feith: It doesn’t say naked. It doesn’t say naked. This is why the words…

Nadler: Removal of clothing doesn’t mean naked?

Feith: Removal of clothing is different from naked.

Haynes repeated the mantra in his testimony before the Senate Armed Services Committee.

Haynes: Some conflation. Two of items for Qahtani included clothing and use of phobia. What was approved by SecDef. Widely held understanding of what was in those two categories. Use of dogs not intended to be dogs in interrogation room with detainee. Muzzled dogs in perimeter. Removal of clothing not nudity. You then jumped to dogs in room and naked people.

Jane Dalton explained that in context (remember, she’s talking about a two page memo with no footnotes) the removal of clothing is not nudity.

Dalton: If conducted with oversight. In context in which discussed. Removal of clothing not nudity, working dogs not dogs unmuzzled and snarling, stress limited to standing for four hours. When you put them together, those techniques could be consistent with domestic and intl law.

And Claire McCaskill gave Jane Dalton and Diane Beaver a short reading lesson.

McCaskill Reading memo. You understand words matter. Removal of clothing. It says Using detainee phobias such as fear of dogs. I’m trying to figure out as a lawyer, how that does not envision naked people having dogs sicced on them. How does that not occur?

Beaver When you develop a plan, if someone had said, lets sic the dogs on them. That did not happen.

McCaskill Dogs were used with naked people.

Beaver Not at Gitmo

mcCaskill Within our military. It happened/

Beaver I can’t comment..

McCaskill Ms Dalton

Dalton: Those approved for Gitmo and did not involve nudity.

McCaskill Removal of clothing. When you were discussing safeguards. Did any one talk putting in the word all. If I saw removal of clothing and I was trying to get info, how would anyone know?

Read more

Dougie Feith Visits HJC

Before Nadler’s Subcommittee. I’ll liveblog until Levin shows up at FDL–note, there’s an 11 ET vote scheduled in the Senate, so Levin’s likely to show up closer to 11:15.

Nadler speaking now: "Perhaps there’s something in the WH drinking water these days that causes amnesia."

Also note, the Republicans are in a really ornery mood. When Nadler moved to assert the ability to recess without objection, Franks objected. Should be interesting–looks like Darrell Issa’s ready to do his thing.

Franks: Speaker Pelosi never objected. Zubaydah caught building a bomb. Complains about Nadler’s statement that Republicans can’t respond to a request for ticking bomb scenario. "Tenth hearing dedicated to protecting the rights of terrorists."

Conyers: Can Franks tell us about the ten hearings?

Franks: I think this is one of the examples, this is a repetitive hearing.

Conyers: Can I have a list of the hearing? This is the Constitutional Committee of the Judiciary. This is to protect the rights of Americans. To prevent our own government from violating the laws and treaties that pertain to torture. I counted some hearings myself. This is the fourth hearing. The first hearing was when Sands came. Ordered from the top, not a few bad apples. Dan Levin, told us flaws in Professor Yoo’s memos. Forced out of OLC while attempt to impose constraints on torture. Wilkinson, Powell worried about torture and the President was complicit. Third hearing Yoo and Addington. Could not or would not remember the facts. Fourth hearing was necessitated bc we had trouble getting Feith to the hearing. Khadr kept up 50 days, ICRC, Administration committed war crimes. Taguba has also written that war crimes were committed. How high does responsibility go? Mukasey refuses to appoint special counsel. Said these people acted in good faith, so not fair to prosecute them. That starts out sounding fairly reasonable. But let’s look more closely.

Update on Levin chat: It is back to the original time: 11AM.

King: 9/11 9/11 9/11. Success success success. People on this committee despise the Administration. People here disagree with that legal analysis. Let’s think about what Dougie was thinking when the open hole was still smoking.

Nadler: Point out, regardless of the situation of the country, we do have laws, that’s what distinguishes us from other countries. Read more

HJC Testimony: Mr. Unitary Executive and Mr. Yoo, Two


Coverage of the hearing is on CSPAN3, the Committee stream, and good coverage (featuring Scott Horton and Jane Mayer) on KPFA.

Scott; Yoo, any discussion of SERE techniques?

Yoo: Can’t discuss.

Nadler: We need to know why.

Yoo: According to DOJ, privilege both attorney-client privilege and classified.

Nadler: Attorney-client not valid here. Classified is valid if it applies.

Yoo: I have to follow it.

Nadler: It’s difficult to assert your assertion of privilege on this issue bc Bradbury testified earlier this year and said it was adapted from SERE. How can this be privileged?

Yoo: Recognize that a-c does not apply. It is their privilege to raise. If you and DOJ have disagreement.

Nadler: Bradbury is the one making the decision on these privileges, but he answered the question.

Scott; Addington, SERE?

ADD: no, I don’t think I did, but no reason to dispute what Bradbury said.

Scott: Is torture illegal?

ADD: as defined by statute, it would be illegal.

Scott: international agreement of when it’s torture and when it isn’t?

ADD: Is a treaty in effect …

Scott: Don’t people know when it’s torture and when it’s not.

ADD: Senate put in reservation.

Scott: 9/11 did not change definition of torture.

Schroeder: it’d be hard to prosecute on opinion.

Scott: Does Administration have ability to write up such an opinion and torture people based on ridiculous memo.

Schroeder: No.

Scott: is it an excuse to torture if you got good information.

Schroeder: Treaty admits no exceptions.

Scott: If you’re going to go around torturing based on your memo, how do you know beforehand whether you’re going to get good information.

Yoo: Disagree with the premise of question.

Scott: If you can’t get information via other techniques, can you use harsher techniques?

Yoo: Nothing in statute that says anything about that.

Watt: Schroeder. Comment on your testimony, policy and law. In 22 years I practiced law, I had a client, who when he didn’t like my advice, he would say the lord told him to do otherwise. Are there things that go beyond Yoo’s memo?

Schroeder: Hope I’m not joining ADD and Yoo, not able to answer your question. We’ve read reports that water-boarding used on some subjects.

Watt: Would that go beyond Yoo’s memo?

Schroeder: I’d need to know more on water-boarding.

Watt: Recourse that public and Congress would have would be impeachment?

Schroeder: [Pondering] It would be difficult under legal theory in August 2002, to think of what remedy would be available other than impeachment.

Watt: What recourse does the public have against an Read more

HJC Testimony: Mr. Unitary Executive and Mr. Yoo


Here’s a post I did on David Addington’s testimony at the Libby trial.

Here is John Yoo’s prepared testimony.

Note this hearing is a Subcommittee Hearing–so it’s Jerrold Nadler’s baby, not Conyers’. That means a subset of HJC’s better questioners will appear today: Nadler, Davis, Wasserman Schultz, Ellison, Conyers, Scott, Watt, and Cohen, with Franks, Pence, Issa, King, and Jordan for the bad guys.

Nadler: Subject of utmost importance to integrity of nation. Will not be permitted to be disrupted–anyone will be expelled immediately. Legal memos defining torture out of existence. I speak for many of my colleagues when I say the more we hear the more appalled we become. One testifying voluntarily, one testifying under subpoena. We will not be deterred by unchecked delcaration of privilege.

Franks: Almost 60 hearings on detainee treatment. Torture banned by various laws. Severe interrogations do not involve torture and they are legal. Results of waterboarding KSM, Abu Zubaydah, and al-Nashiri valuable. Alan Dershowitz says we can torture, so everything’s okay.

Franks just asked to submit evidence into the record. Nadler went, whuh? Nadler complains about Addington stiffing the committee for written testimony, but then submitting his own exhibits.

Nadler: I want to defend Dershowitz against allegations he’s an ultra-liberal. He just wrote a book advocating torture through warrants.

Conyers: More concerned about what we’re going to do, not any individual citizen. I don’t know why giving someone a lawyer is shocking to anyone. We have reports stating that our witnesses played a central role in drafting legal opinions on torture.

[Note: both sides look unusually prepared today, with Franks and Conyers both showing video from earlier hearings.]

Addington: 3 points. Iran-Contra said I was working for Cheney, in fact designee for Broomfield of MI. An author of prep for minority views, I had left before the report was written. More important, Conyers mentioned, wanted to give benefit of doubt. There’s one subject in which there’s no doubt, I believe everyone on this committee want to defend this country, protect it from terrorism, differences on how that’s accomplished. Thank you.

Nadler: Sorry I gave you too much credit. Is that the entirety of your statement?

[Nadler seems befuddled by ADD]

Yoo: Thank you, appreciate Conyers open mind. Waive rest of my time.

Nadler: You don’t want to summarize it?

Yoo: I don’t need to. Read more