Torture Overseas

The ACLU–conducting more oversight these days than Congress and the mainstream media combined–has gotten a hold of some previously unreleased documents detailing the torture of detainees at Guantanamo Bay and other overseas facilities. Here (PDF file), for instance:

[Wisam] Abd-Al-Rahman described his reported period of detention in Afghanistan from January 2002 until April 2003 as moving from ‘one American prison to another’, staying in cold, dark, and crowded rooms. He said he stayed, without charges or interrogation, with nine other persons in a 25 square foot room without sunlight and fed only bread and rice for a period of about 77 days. He said that sanitary and hygiene conditions were terrible, and that he did not receive medical care nor see the sun during the period of detention in Afghanistan. He also reported sleep deprivation, undressing in front of female soldiers, desecration of the Koran by a dog, beatings, and threats of harm from barking dogs while blindfolded.

Abd-al-Rahman was later found to be innocent.

Here’s a series of accounts (PDF file) of the deaths of four detainees killed in captivity in Iraq.

Here’s a list of talking points (PDF file) about torture, as conveyed in a State Department cable transmission. Note that the people who received them were warned that they should “not be given to non-usg [U.S. Government] persons or left behind after meetings.”

And there’s plenty more that I haven’t read through yet. Give them a look yourself, and I’ll post anything interesting I come across as I peruse them.

See more tagged with: civil liberties and torture

Contempt In Court

On Friday, White House lawyers filed a motion in civil court, arguing
against the House’s own filing last month in its attempt to enforce
subpoenas against Josh Bolten and Harriet Miers. As I reported at the
time, the White House appears to be arguing that the courts ought to
stay out of the fight and let the House use other means of leverage
to get the information it seeks from the executive branch.

the Legislative Branch may vindicate its interests
without enlisting judicial support: Congress has a variety of other
means by which it can exert pressure on the Executive Branch, such as
the withholding of consent for Presidential nominations, reducing
Executive Branch appropriations, and the exercise of other powers
Congress has under the Constitution.

The entire document runs 83 pages. I’ll try to get my hands on a
copy, to see what other dubious arguments the administration is making.

See more tagged with: contempt citation and house judiciary

Senate Leader Reid: No “Mad Rush for Immunity”

audio courtesy Talk Radio News Service

In a meeting this morning with reporters and bloggers, Senate Majority Leader Harry Reid (D-Nev.) signaled that civil libertarians may have less to fear than expected from a surveillance bill currently being negotiated in a conference of House and Senate committees.

Reid made the remarks during a meeting with reporters in the U.S. Capitol building, in answer to my question about current negotiations between House and Senate committees on legislation governing wiretapping in terrorism investigations. The legislation would renew post-9/11 amendments to the Foreign Intelligence Surveillance Act (FISA) that expired last year. At issue between the House and Senate bills is the question of retroactive immunity from prosecution for telecom companies who provided customer data to the government, without a court order to do so.

Earlier this year, the Senate passed a version of the legislation, known as the Protect America Act, that provided immunity to the telecoms, effectively shielding from scrutiny government officials who ordered the collection of such data. Critics contend that the immunity provisions in the Senate bill ultimately protects President George W. Bush and Vice President Richard B. Cheney from prosecution for civil rights violations. The House version confers no such immunity. The Senate bill also grants, with little judicial involvement or oversight, for widespread surveillance involving Americans. The conference committee is working to reconcile the two versions.

Even though the Senate version contains the immunity language, Reid’s heart, he says, is in another place. “I personally don’t believe that the phone companies should have immunity,” he told reporters, “and I certainly don’t believe that Bush and Cheney should have immunity.”

When the House passed a version of the bill that failed to include the immunity provisions, President Bush accused House Democrats of leaving the United States vulnerable to attack by terrorists. “Everyone was in a panic,” Reid said. “If we didn’t pass FISA…the world was going to fall apart — and it didn’t.” Because of that, Reid said, “I think the mad rush for immunity is not as intense as it was.”

Critics of the bill, such as leaders of the American Civil Liberties Union (ACLU), have suggested that Sen. Jay Rockefeller, who leads the negotiations for the Senate bill, was ready to side with the administration on the matter of immunity for telecom companies. Reid appeared to suggest this is not necessarily the case.

Until the legislation is passed, wiretapping on matters concerning foreign intelligence is governed by the FISA law as it was written in 1978.

See more tagged with: FISA, harry reid, Surveillance, telecoms and warrentless wiretapping

Torture Subpoenas?

John Yoo, former Attorney General John Ashcroft, and Vice Presidential Chief of Staff David Addington have now all declined to testify before the House Judiciary committee on the White House’s torture policies. Committee Chairman John Conyers first responded to their objections, and now has threatened to issue subpoenas.

“I will have no choice,” Conyers says, “but to consider the use of compulsory process.” Stay tuned.

See more tagged with: torture

Preserving White House Emails… Eventually

The missing White House email scandal raises one very obvious set of questions. Namely: Where’d they go and what did they say? Those questions will hopefully be addressed as Congress investigates the controversy, but the inquiries won’t answer another, perhaps equally important question: How can this be prevented from happening again?

The solution may lie in a new piece of House legislation, a summary of which was circulated at an unexpectedly pre-empted Oversight hearing that had been scheduled for today. Rep. William Lacy Clay (D-MO), chair of the Information Policy, Census, and National Archives subcommittee has sponsored the Electronic Communications Preservation Act, which modernizes the Presidential Records Act and the Federal Records Act and “directs the Archivist [of the United States] to issue regulations requiring agencies to preserve electronic communication in an electronic format.”

The bill comes on the heels of two recent reports–one by the Government Accountability Office and another by the non-profit government watchdog organization Citizens for Responsibility and Ethics in Washington–each of which found that federal agencies, lacking uniform guidelines for preserving electronic records, have regularly resorted to “print and file” systems, resulting in significant losses of official documents.

The hearing itself was postponed at the last minute because of a series of votes on the House floor, but in prepared testimony (which remains unofficial and subject to change until the rescheduled hearing is conducted) one open-government advocate suggests that the bill doesn’t go far enough. Addressing the portion of the bill which updates the Federal Records Act, Patrice McDermott, director of openthegovernment.org noted that the National Archives and Record Administration “has been talking since at least 1996 about working ‘with agencies on the design of recordkeeping systems for creating and maintaining records of values.’”

“[T]he agencies,” she wrote, “have done nothing. NARA and the agencies don’t need another 18 months to ‘establish mandatory minimum functional requirements…’ Nor do the agencies need three more years–beyond the 18 months–to comply with a requirement to implement the regulations and an electronic records management system.” The bill summary notes that the Archivist will have “18 months to promulgate the regulations,” and that agencies “will have no more than four years following the enactment of the Act to comply.”

See more tagged with: executive privilege

Iran: Sabers and Sobriety

Much has been written already about General David Petraeus’ and Ambassador Ryan Crocker’s two days of marathon testimony on Capitol Hill this week, including plenty about the degree to which they also testified about Iran’s influence both in Iraq and in the greater Middle East. Petraeus was quick to call Iran’s influence in Iraq “malevolent”, but less quick to reconcile that influence with the fact that Iran is on friendly terms with the U.S.-backed Iraqi government. Just hours after the two men wrapped up their show, President Bush kicked up the rhetoric. According to the Times of London, “President Bush warned Iran [] that if it did not stop arming and training Shia militia in Iraq then ‘America will act to protect our interests and our troops’.”

Interestingly, while Petraeus and Crocker sat before the Senate Foreign Relations Committee on Tuesday, the National Iranian American Council hosted a conference, drawing on the expertise of journalists, scholars, former chief U.N. Weapons Inspector Hans Blix, and Sen. Dianne Feinstein (D-CA), to examine America’s best options if it seeks to keep Iran’s nuclear weapons program dormant. Iran, which recently claimed to be installing 6,000 new centrifuges at its uranium enrichment plant in Natanz, could restart its weapons program, and preventing that, the guests noted, will likely require direct U.S. diplomatic engagement with the Islamic Republic.

That process would no doubt have an impact on Iran’s influence in Iraq, and it might well prove to be a positive one. “Iran recently proved helpful in brokering a ceasefire between Prime Minister al-Maliki and Muqtada al-Sadr’s JAM militias in Basra, Feinstein noted. “Clearly, a more positive relationship with Iran might be helpful in stabilizing Iraq.” That ceasefire is by no means destined to hold, and will by no means solve the fundamental political rifts that keep Iraq ablaze. But it has knocked violence down noticeably, which is something all sides no doubt welcome.

See more tagged with: Iran

Yoo To Testify?

John Conyers sends John Yoo a gentle invitation to testify before his House Judiciary committee in early May(with a quiet threat at the bottom to “compel”–read: subpoena–his appearance if Yoo refuses).

I’m not quite sure why he’s convinced Yoo will demur. It’s not like former and current Bush administration officials have a tendency to blow off congressional oversight! More seriously, Yoo, who penned the famed (and discredited) DOJ legal justifications for torture (and, apparently, another memo suspending the fourth amendment for domestic military operations) hasn’t been all that averse to discussing his time in Washington and his role in the torture fiasco. Just last week, he spoke to Esquire magazine and The Washington Post about the release of the March 2003 memo (which the ACLU recently acquired after a lengthy battle with the administration). And, as Glenn Greenwald notes, John Yoo will be appearing live and unplugged on April 14 at the Bancroft Hotel (just across the street from his offices at UC Berkeley’s Boalt Hall school of law) as part of a conversation about “the intersection between privacy and national security law.”

If Yoo declines Conyers’ invitation before that date, Congressional staffers know where to find him.

See more tagged with: john conyers, john yoo and torture

Probing Mukasey?

Last week, speaking in San Francisco, Attorney General Michael Mukasey said that government agents:

“shouldn’t need a warrant when somebody with a phone in Iraq picks up a phone and calls somebody in the United States because that’s the call that we may really want to know about. And before 9/11, that’s the call that we didn’t know about. We knew that there has been a call from someplace that was known to be a safe house in Afghanistan and we knew that it came to the United States. We didn’t know precisely where it went….We’ve got three thousand people who went to work that day and didn’t come home to show for that.”

There are just a couple major problems with this. For one, FISA–as it existed before the terrorist attacks, as it exists now, and as it would exist under the House’s latest amendments bill–doesn’t require a warrant for the sort of phone call Mukasey’s referring to. Relatedly, if the White House knew such calls were taking place it was obligated to listen in. Its failure to do so is an indictment of itself, not of FISA (which Mukasey suggests led to the attacks and the deaths of 3000 Americans).

So either the government screwed up big time, or Mukasey–the nation’s chief law enforcer–just told a whopper (perhaps with the hope that it would be repeated in the press) as part of his ongoing efforts to help the White House get its way in the FISA fight. Either way, somebody’s got some ’splainin to do. And, as such, John Conyers, chairman of the House Judiciary committee, has begun asking questions.

The Honorable Michael Mukasey

Attorney General of the United States

U.S. Department of Justice

950 Pennsylvania Ave., NW

Washington, DC 20530

Dear Mr. Attorney General:

We are writing about two disturbing recent revelations concerning the actions and inactions by the Department of Justice and the federal government to combat terrorism. These include a public statement by you that appears to suggest a fundamental misunderstanding of the federal government’s existing surveillance authority to combat terrorism, as well as possible malfeasance by the government prior to 9/11, and the partial disclosure of the contents of a secret Department memorandum concerning Executive Branch authority to combat terrorism, which has been previously requested to be provided to Congress. We ask that you promptly provide that memorandum and that you clarify your public statement in accordance with the questions below.

First, according to press reports, in response to questions at a March 27 speech, you defended Administration wiretapping programs and proposals to change the Foreign Intelligence Surveillance Act (FISA) by referring to a pre-9/11 incident. Before the 9/11 terrorist attacks, you stated, “we knew that there had been a call from someplace that was known to be a safe house in Afghanistan and we knew that it came to the United States. We didn’t know precisely where it went. You’ve got 3,000 people who went to work that day, and didn’t come home, to show for that.”1

This statement is very disturbing for several reasons. Initially, despite extensive inquiries after 9/11, I am aware of no previous reference, in the 9/11 Commission report or elsewhere, to a call from a known terrorist safe house in Afghanistan to the United States which, if it had been intercepted, could have helped prevent the 9/11 attacks. In addition, if the Administration had known of such communications from suspected terrorists, they could and should have been intercepted based on existing FISA law. For example, even assuming that a FISA warrant was required to intercept such calls, as of 9/11 FISA specifically authorized such surveillance on an emergency basis without a warrant for a 48 hour period.2 If such calls were known about and not intercepted, serious additional concerns would be raised about the government’s failure to take appropriate action before 9/11.

Accordingly, we ask that you promptly answer the following questions:

1. Were you referring to an actual pre-9/11 incident in the portion of your statement quoted above? If not, what were you referring to?

2. Do you believe that a FISA warrant would have been required to intercept a telephone call from a known terrorist safe house in Afghanistan to the United States in 2001? If so, please explain.

3. Even assuming that such a warrant would have been required, do you agree that even before 9/11, FISA authorized emergency interception without a warrant for a 48-hour period of phone calls from a known terrorist safe house in Afghanistan to the United States?

4. Assuming that you were referring to an actual pre-9/11 incident in your statement, please explain why such phone calls were not intercepted and appropriately utilized by federal government authorities in seeking to prevent terrorist attacks.

See more tagged with: FISA, house judiciary and michael mukasey

The Optional Constitution

Smarter people have already commented on the release of the Yoo memos, and frankly I don’t have much to add. What I can say is that I’d been tracking Congress’ movement on those memos for some time. A long while back, at an event at the Georgetown Law Center, I asked Patrick Leahy whether, as chairman of the Judiciary Committee, he’d use his subpoena power to make them public and he said it might come to that. What followed, of course, was a series of very angry-sounding letters and public statements from various corners of Capitol Hill, until finally the ACLU had to step in where public servants had either failed, middled, or ignored the issue entirely.

Now we learn of the existence of yet another memo, still unreleased, which, for the 16-or-more months the administration honored it, effectively “concluded that the Fourth Amendment had no application to domestic military operations.” The Fourth Amendment, you’ll recall, is that annoying little cockroach in the bill of rights which protects people like you from things such as warrantless wiretapping and other means of internal espionage.

So, by my count, the White House has, at various times, concluded that the First, Fourth, Fifth, Sixth, and Eighth Amendments are unacceptable impediments to its violation of the First, Fourth, Fifth, Sixth, and Eighth Amendments, and, as such, chose to wish them out of existence as if they were minor headaches like congressional subpoenas or the national debt. Half of the bill of rights. Pretty neat trick, no?

See more tagged with: Congress, torture and wiretapping

FISA Movement

Wall Street Journal says:

The White House, seeking to break a months-long standoff, has signaled to Democratic lawmakers it is open to negotiation over a proposal to expand government spy powers, according to officials familiar with the conversations.

House leadership confirms:

House Majority Leader Steny H. Hoyer , D-Md., said Tuesday he has received indications the Bush administration is interested in negotiating a compromise extension of stalled electronic surveillance legislation.

Of course, the White House will have to be willing to specifically negotiate the matter of immunity. In recent weeks, they have rejected all Democratic offers of limited immunity–proposals that would, for instance, limit damages while keeping lawsuits against telecommunications companies alive. If this olive branch is really an olive branch, that will have to change.

See more tagged with: FISA