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Context of 'January-September 2004: British Terror Suspect ‘Rendered’ to ‘Dark Prison’ in Afghanistan'

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Deputy Attorney General James Comey, who has already tendered his resignation, gives his farewell speech to an assemblage in the Justice Department. Comey makes what author and reporter Charlie Savage will later call “a cryptic reference to the fights over warrantless surveillance and torture issues that he had fought alongside [former Office of Legal Counsel chief Jack] Goldsmith and the other non-team players” (see Late 2003-2005 and June 17, 2004). Comey tells the assembled employees that, during his tenure, he had dealt with issues that “although of consequence almost beyond my imagination, were invisible because the subject matter demanded it.” In these disputes, he says he worked with people whose loyalty “to the law… would shock people who are cynical about Washington.” Those people, he says, “came to my office, or my home, or called my cell phone late at night, to quietly tell me when I was about to make a mistake; they were people committed to getting it right—and to doing the right thing—whatever the price. These people know who they are. Some of them did pay a price for their commitment to [do] right, but they wouldn’t have it any other way.” [US Department of Justice, 8/15/2005; Consortium News, 2/8/2006; Savage, 2007, pp. 199] Comey will later testify that one of the people he is referring to is former Justice Department lawyer Patrick Philbin. [Savage, 2007, pp. 199]

Entity Tags: Patrick F. Philbin, Jack Goldsmith, Charlie Savage, US Department of Justice, James B. Comey Jr.

Timeline Tags: Civil Liberties

The FBI begins to build cases against high value detainees held by the US in Guantanamo Bay, due to Defense Department fears that evidence obtained from the detainees by the CIA will be inadmissible or too controversial to present at their upcoming war crimes tribunals. The investigation, which involves up to 300 agents in a “Guantanamo task force,” runs for at least two years and FBI agents travel widely to collect evidence. According to former officials and legal experts, “The [FBI] process is an embarrassment for the Bush administration, which for years held the men incommunicado overseas and allowed the CIA to use coercive means to extract information from them that would not be admissible in a US court of law—and might not be allowed in their military commissions….” In fact, the techniques used to extract the confessions even cause some CIA officials to question whether they are believable, much less sustainable in court, particularly as CIA officers are not trained to obtain evidence that can be used in such a setting. In addition, if the information is used, this may focus the trials on the actions of the CIA and not the accused. The detainees will be designated enemy combatants in 2007 in preparation for military commissions (see March 9-April 28, 2007 and August 9, 2007), but this process will be questioned by a judge (see June 4, 2007). The Los Angeles Times will also comment, “The FBI’s efforts appear in part to be a hedge in case the commissions are ruled unconstitutional or never occur, or the US military detention center at Guantanamo Bay is closed. Under those scenarios, authorities would have to free the detainees, transfer them to military custody elsewhere, send them to another country, or have enough evidence gathered by law enforcement officials to charge them with terrorism in US federal courts.” [Los Angeles Times, 10/21/2007]

Entity Tags: Central Intelligence Agency, Federal Bureau of Investigation, US Department of Defense

Timeline Tags: Torture of US Captives, Complete 911 Timeline, 9/11 Timeline, Civil Liberties

The Washington Post reports that four years after the 2001 anthrax attacks (see October 5-November 21, 2001), the FBI investigation is growing cold. [Washington Post, 9/16/2005] A New York Times article from the same day also concludes the investigation has stalled. The FBI has found itself on the defensive amid claims that they publicly smeared Steven Hatfill when lacking other viable suspects. [New York Times, 9/16/2005]

Entity Tags: Federal Bureau of Investigation, Steven Hatfill

Timeline Tags: 2001 Anthrax Attacks, US Domestic Terrorism

A Spanish court sentences a number of people to prison for connections to al-Qaeda. The main defendant, Imad Eddin Barakat Yarkas, is convicted of leading an al-Qaeda cell in Madrid and conspiring to commit the 9/11 attacks by hosting a meeting in Spain in July 2001 attended by Mohamed Atta, Ramzi bin al-Shibh, and others (see July 8-19, 2001). He is sentenced to 27 years in prison. [New York Times, 9/27/2005] However, in 2006, Spain’s supreme court will overturn his 9/11 conspiracy conviction, after prosecutors reverse themselves and ask that the conviction be dismissed. One of the reasons for the dismissal is that the US, which possesses evidence supporting the convictions, is reluctant to provide it (see Mid-2002-June 1, 2006). This will leave Zacarias Moussaoui the only person in the world jailed for a role in the 9/11 attacks. Yarkas will still have to serve a 12-year sentence for leading an al-Qaeda cell. [London Times, 6/1/2006] Seventeen men besides Yarkas, mostly Syrians, are also found guilty and are given sentences of six to eleven years. One of these is Tayseer Allouni, a correspondent for the Al Jazeera satellite network. He is convicted of giving $4,500 to a family of Syrian exiles in Afghanistan. The prosecutor alleged the family were al-Qaeda operatives, while Allouni argued he gave the money for humanitarian reasons. Two others, a Moroccan named Driss Chebli and a Syrian named Ghasoub al-Abrash Ghalyoun, were acquitted of being involved in the 9/11 plot, but Chebli was convicted of collaborating with a terrorist group. Ghalyoun was accused of videotaping the World Trade Center and other American landmarks in 1997 for the 9/11 plotters, but he claimed he was just a tourist (see 1998). [New York Times, 9/27/2005; Washington Post, 9/27/2005; Financial Times, 9/27/2005]

Entity Tags: Driss Chebli, Ghasoub al-Abrash Ghalyoun, Barakat Yarkas, Tayseer Allouni

Timeline Tags: Complete 911 Timeline

Damage to a restaurant in Kuta, Bali, in 2005.Damage to a restaurant in Kuta, Bali, in 2005. [Source: Associated Press]Three suicide bombers blow themselves up in restaurants on the island of Bali, Indonesia. Twenty-two people are killed and over 100 are injured. No group takes credit for the bombings, but Jemaah Islamiyah (JI), al-Qaeda’s main affiliate in Southeast Asia, is widely blamed. Several days later, Indonesian police announce they are searching for five men linked to Imam Samudra, who has been sentenced to death for his role in the 2002 Bali bombings (see October 12, 2002). Three of the five had already served jail sentences for holding explosives linked to Samudra and were under police surveillance but somehow escaped. The Indonesian government also blames Noordin Mohammed Top and Azhari Husin for masterminding the bombing. [CNN, 10/5/2005] The two men had been members of JI and acted on direction from al-Qaeda, but JI’s leadership has largely been destroyed through arrests and killings, and it is believed they now form ad hoc groups to carry out new attacks. [New York Times, 10/7/2005] Husin is killed in a raid on his hideout in Java two months later, but Top remains at large. One year later, it will be revealed that a computer laptop and a cell phone were smuggled to Samudra in his death row prison cell several months before the bombings, and he raised funds and communicated with the bombers while remaining imprisoned. An unnamed prison warden will reportedly be detained for helping Samudra get the laptop, but no one will be tried for any involvement in the bombings. [London Times, 8/24/2006; Australian Broadcasting Corporation, 9/24/2006]

Entity Tags: Azhari Husin, Noordin Mohammed Top, Imam Samudra, Jemaah Islamiyah

Timeline Tags: Complete 911 Timeline

In a speech, President Bush lists ten terrorist plots the US has supposedly foiled since 9/11, as well as five “casings and infiltrations.” Here are the plots, exactly as they are described in a White House press release, rearranged into a rough chronological order:
West Coast Airliner Plot - In mid-2002 the US disrupted a plot to attack targets on the West Coast of the United States using hijacked airplanes. The plotters included at least one major operational planner involved in planning the events of 9/11.
Jose Padilla Plot - In May 2002 the US disrupted a plot that involved blowing up apartment buildings in the United States. One of the plotters, Jose Padilla, also discussed the possibility of using a “dirty bomb” in the US.
2002 Straits of Hormuz Plot - In 2002 the US and partners disrupted a plot to attack ships transiting the Straits of Hormuz.
2002 Arabian Gulf Shipping Plot - In late 2002 and 2003 the US and a partner nation disrupted a plot by al-Qaeda operatives to attack ships in the Arabian Gulf.
2003 Karachi Plot - In the spring of 2003 the US and a partner disrupted a plot to attack Westerners at several targets in Karachi, Pakistan.
East Coast Airliner Plot - In mid-2003 the US and a partner disrupted a plot to attack targets on the East Coast of the United States using hijacked commercial airplanes.
2003 Tourist Site Plot - In 2003 the US and a partner nation disrupted a plot to attack a tourist site outside the United States.
Heathrow Airport Plot - In 2003 the US and several partners disrupted a plot to attack Heathrow Airport using hijacked commercial airliners. The planning for this attack was undertaken by a major 9/11 operational figure.
2004 UK Plot - In the spring of 2004 the US and partners, using a combination of law enforcement and intelligence resources, disrupted a plot to conduct large-scale bombings in [Britain].
2004 [British] Urban Targets Plot - In mid-2004 the US and partners disrupted a plot that involved urban targets in [Britain]. These plots involved using explosives against a variety of sites.
Here are the five additional “casings and infiltrations”:
2001 Tasking - In 2001, al-Qaeda sent an individual to facilitate post-September 11 attacks in the US. US law enforcement authorities arrested the individual.
2003 Tasking - In 2003, an individual was tasked by an al-Qaeda leader to conduct reconnaissance on populated areas in the US.
Gas Station Tasking - In approximately 2003, an individual was tasked to collect targeting information on US gas stations and their support mechanisms on behalf of a senior al-Qaeda planner.
Iyman Faris and the Brooklyn Bridge - In 2003, and in conjunction with a partner nation, the US government arrested and prosecuted Iyman Faris, who was exploring the destruction of the Brooklyn Bridge in New York. Faris ultimately pleaded guilty to providing material support to al-Qaeda and is now in a federal correctional institution.
US Government & Tourist Sites Tasking - In 2003 and 2004, an individual was tasked by al-Qaeda to case important US Government and tourist targets within the United States. [White House, 10/6/2005]
However, later in the month the Washington Post publishes a story questioning the importance of most of these plots. The article states that the plot list “has confused counterterrorism experts and officials, who say they cannot distinguish between the importance of some incidents on the list and others that were left off. Intelligence officials who spoke on the condition of anonymity said the White House overstated the gravity of the plots by saying that they had been foiled, when most were far from ready to be executed. Others noted that the nation’s color-coded threat index was not raised from yellow, or ‘elevated’ risk of attack, to orange, or ‘high’ risk, for most of the time covered by the incidents on the list.” An anonymous former CIA counterterrorism official tells the Post that Bush made it “sound like well-hatched plans… I don’t think they fall into that category.” Another anonymous counterterrorism official says, “We don’t know how they came to the conclusions they came to… It’s safe to say that most of the [intelligence] community doesn’t think [the list is] worth very much.” [Washington Post, 10/23/2005]

Entity Tags: Al-Qaeda, Bush administration (43), George W. Bush

Timeline Tags: Complete 911 Timeline

The Fourth Circuit Court of Appeals rules that President Bush, as commander in chief, can continue to hold Jose Padilla (see June 9, 2002), a US citizen arrested on US soil (see June 8, 2002), indefinitely as an enemy combatant. Padilla is to be treated the same as an American captured on a foreign battlefield (see June 28, 2004). The majority ruling is written by Judge J. Michael Luttig, often thought of as a potential Bush Supreme Court nominee. Luttig rules there is “no difference in principle between [Yaser Esam] Hamdi (see June 28, 2004) and Padilla.” Bush’s “powers include the power to detain identified and committed enemies such as Padilla, who associated with al-Qaeda and the Taliban regime, and who entered the United States for the avowed purpose of further prosecuting [terrorism] by attacking American citizens and targets on our own soil.” Luttig ignores the fact that Padilla has never been charged, much less convicted, of any crime. When the Bush administration later charges Padilla as an ordinary criminal—and does not charge him with with any of the terrorist activities it had long alleged he had committed—many administration critics will conclude that, just as in the Hamdi case, the administration had used inflammatory rhetoric and baseless charges to obtain a judicial decision it wanted (see October 10, 2004). When Luttig learns of the administration’s actions, he will issue a supplementary opinion excoriating the White House (see December 21, 2005). [Savage, 2007, pp. 200]

Entity Tags: Jose Padilla, J. Michael Luttig

Timeline Tags: Civil Liberties

Abdurrahman Wahid.Abdurrahman Wahid. [Source: Indonesian Embassy in the Netherlands]In an interview with the Australian public television station SBS, Abdurrahman Wahid, president of Indonesia from 1999 to 2001, suggests that the country’s military or police may have been behind the 2002 Bali bombings (see October 12, 2002). The Australian reports: “Wahid told SBS’s Dateline program that he had grave concerns about links between Indonesian authorities and terrorist groups and believed that authorities may have organized the larger of the two 2002 Bali bombings which hit the Sari Club, killing the bulk of the 202 people who died.… Asked who he thought planted the Sari Club bomb, Mr Wahid said: ‘Maybe the police… or the armed forces. The orders to do this or that came from within our armed forces, not from the fundamentalist people.’” Wahid believes the smaller bomb was indeed planted by Islamist militants. [SBS Dateline, 10/12/2005; Australian, 10/13/2005] Counterterrorism expert John Mempi also comments, “Why this endless violence [in Indonesia]? Why are there acts of terrorism year in, year out? Regimes change, governments change, but violence continues. Why? Because there is a sort of shadow state in this country. A state within a state ruling this country.” [SBS Dateline, 10/12/2005] In 2008, Imam Samudra, imprisoned and sentenced to death for being one of the Bali bombings masterminds, will make comments similar to Wahid’s. While he admits being involved in the bombings, he claims that they never meant to kill so many people. He says the second explosion was much bigger than they had expected and suggests that “the CIA or KGB or Mossad” had somehow tampered with the bomb. [Sunday Times (London), 3/2/2008]

Entity Tags: Imam Samudra, Abdurrahman Wahid, John Mempi

Timeline Tags: Alleged Use of False Flag Attacks, Complete 911 Timeline

The Justice Department decides not to prosecute in most cases where detainees were abused and killed by the CIA. The cases, of which there are apparently eight, had been referred to the department by the CIA’s inspector general (see (August 2004)) and were investigated primarily by the US Attorneys Office for the Eastern District of Virginia, although officials at department headquarters in Washington are also involved in the decision not to prosecute. Although some of the cases are still technically under review at this time, the department indicates it does not intend to bring charges. [New York Times, 10/23/2005] The cases include:
bullet The death of Iraqi prisoner Manadel al-Jamadi in CIA custody in November 2003 (see Between 4:30 a.m. and 5:30 a.m. November 4, 2003 and (7:00 a.m.) November 4, 2003);
bullet The asphyxiation of Major General Abed Hamed Mowhoush in Iraq, also in November 2003 (see November 24 or 25, 2003 and November 26, 2003). This incident involved the military, as well as at least one CIA contractor; [New York Times, 10/23/2005]
bullet The intimidation of al-Qaeda leader Abd al-Rahim al-Nashiri by a CIA officer named “Albert” using a gun and drill (see September 11, 2003).
bullet The death of detainee Gul Rahman, who froze to death at the Salt Pit prison in Afghanistan (see November 20, 2002). The case was examined by prosecutors, but, in the end, a recommendation not to prosecute the officer who caused the detainee to die is made. [Washington Post, 9/19/2009] The officer’s first name is not known, although his last name is Zirbel. [Mahoney and Johnson, 10/9/2009, pp. 29 pdf file] The decision is made because prosecutors conclude that the prison was outside the reach of US law; although the CIA funded it and vetted its Afghan guards, it was technically an Afghan prison. In addition, it is unclear whether Rahman, who was captured in Pakistan and then taken to Afghanistan, would have died from injuries sustained during his capture, rather than by freezing. Although hypothermia was listed as the cause of death in the autopsy, the body was not available to investigators. According to the Washington Post, “questions remain whether hypothermia was used as a cover story in part to protect people who had beaten the captive.” However, according to a “senior official who took part in the review,” the decision not to prosecute in this case is not initially that clear, and an indictment is considered. However, the prosecutors decide not to press charges against Zirbel and a memo explaining this decision is drafted. An official involved in the review will later say there is “absolutely no pressure” from the Justice Department’s management to decide not to prosecute. However, a later report by the Post will indicate there may be a split among prosecutors over the decision, and that a political appointee, US Attorney for the Eastern District of Virginia Paul McNulty, assesses the case. McNulty will be nominated for the position of deputy attorney general around this time (see October 21, 2005). [Washington Post, 9/19/2009]
However, one CIA employee, a contractor named David Passaro, has been charged with detainee abuse (see June 18-21, 2003). [New York Times, 10/23/2005] The department will begin a second review of some or all of these cases in 2009 (see August 24, 2009).

Entity Tags: Matthew Zirbel, Paul J. McNulty, Gul Rahman, Central Intelligence Agency, Abed Hamed Mowhoush, Manadel al-Jamadi, US Department of Justice

Timeline Tags: Torture of US Captives

John Rizzo.John Rizzo. [Source: C-SPAN]Guidance is issued by CIA lawyers Robert Eatinger and Steven Hermes to the CIA’s National Clandestine Service (NCS) on the preservation of videotapes of detainee interrogations made by the CIA. [New York Times, 12/19/2007] The guidance is apparently used as justification for the tapes’ destruction (see November 2005), but its content is unclear. According to one account, “Lawyers within the clandestine branch of the Central Intelligence Agency gave written approval in advance to the destruction in 2005 of hundreds of hours of videotapes documenting interrogations of two lieutenants from al-Qaeda.” [New York Times, 12/11/2007] Another account supports this, saying the lawyers give “written guidance to [CIA manager Jose] Rodriguez that he had the authority to destroy the tapes and that the destruction would violate no laws.” [New York Times, 12/19/2007] However, according to another account: “[The guidance] advises that there is no explicit legal reason why the Clandestine Service had to preserve the tapes… The document does not, however, directly authorize the tapes’ destruction or offer advice on the wisdom or folly of such a course of action.” [Newsweek, 12/11/2007] Some CIA videotapes have been requested for court proceedings, meaning such tapes should not be destroyed, but it is unclear if the tapes that are destroyed in November 2005 have been requested by courts or not (see May 7-9, 2003 and November 3-14, 2005). The CIA’s top lawyer, John Rizzo, is not asked for an opinion, although he has been involved in discussions about what to do with the tapes for years and several high-ranking officials and legislators are of the opinion that the tapes should not be destroyed (see November 2005). [New York Times, 12/11/2007] Eatinger and Hermes apparently inform Rizzo they have issued the guidance and expect Rodriguez will consult him before destroying the tapes, but Rodriguez does not do so. [New York Times, 12/19/2007] The New York Times will comment, “It is unclear what weight an opinion from a lawyer within the clandestine service would have if it were not formally approved by Mr. Rizzo. But [an anonymous former official] said Mr. Rodriguez and others in the clandestine branch believed the legal judgment gave them the blessing to destroy the tapes.” The former official will also say they “didn’t need to ask Rizzo’s permission.” [New York Times, 12/11/2007] A lawyer acting for Rodriguez will later say, “He had a green light to destroy them.” [New York Times, 12/19/2007] However, other former CIA officers will express surprise that a lawyer junior to Rizzo would approve such a controversial decision without asking for his input. Former CIA lawyer John Radsan will say, “I’d be surprised that even the chief [NCS] lawyer made a decision of that magnitude without bringing the General Counsel’s front office into the loop.” He adds, “Although unlikely, it is conceivable that once a CIA officer got the answer he wanted from a [NCS] lawyer, he acted on that advice… But a streamlined process like that would have been risky for both the officer and the [NCS] lawyer.” [New York Times, 12/11/2007]

Entity Tags: Robert Eatinger, National Clandestine Service, Jose Rodriguez, Jr., Steven Hermes, John Radsan, Central Intelligence Agency, John Rizzo, Directorate of Operations

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

The Central Intelligence Agency destroys videotapes of the interrogations of two high-ranking detainees, Abu Zubaida and Abd al-Rahim al-Nashiri, which were made in 2002 (see Spring-Late 2002). One anonymous senior intelligence official later claims that “Several hundred hours” of videotapes are destroyed. [Washington Post, 12/18/2007] The tapes are destroyed at the CIA station in Thailand by station chief Michael Winograd, as Zubaida and al-Nashiri apparently were tortured at a secret CIA prison in that country. [Newsweek, 6/28/2008; Associated Press, 7/26/2010] The decision to destroy the tapes is apparently made by Jose Rodriguez, chief of the CIA’s Directorate of Operations, despite previous advice not to destroy them (see November 2005). However, some accounts will suggest that Rodriguez received clearance to destroy the tapes (see December 7, 2007). [New York Times, 12/8/2007] The CIA’s treatment of detainees has recently come under increased scrutiny. As the Wall Street Journal will later remark, “the Abu Ghraib prison pictures were still fresh, the existence of secret CIA prisons had just been revealed, and politicians on Capitol Hill were talking about curtailing ‘extreme techniques,’ including the Central Intelligence Agency’s own interrogation tactics.” [Wall Street Journal, 12/10/2007] Beginning on November 2, 2005, there are some pivotal articles revealing details about the CIA’s handling of detainees, suggesting that some of them were illegally tortured (see November 2-18, 2005). According to a 2007 statement by future CIA Director Michael Hayden, the tapes are destroyed “in the absence of any legal or internal reason to keep them” and because they apparently pose “a serious security risk”; if they were leaked, they could be used for retaliation by al-Qaeda and its sympathizers. [Central Intelligence Agency, 12/6/2007] However, this rationale will be questioned when the destruction is revealed in late 2007 (see December 6, 2007). Senator Carl Levin (D-MI) will call this “a pathetic excuse.… You’d have to burn every document at the CIA that has the identity of an agent on it under that theory.” CBS News will offer an alternative explanation, saying that the tapes are destroyed “to protect CIA officers from criminal prosecution.” [CBS News, 12/7/2007] CIA Director Porter Goss and the CIA’s top lawyer, John Rizzo, are allegedly not notified of the destruction in advance, and Rizzo will reportedly be angry at this failure. [New York Times, 12/8/2007] But Newsweek will later claim that Goss and Rizzo were involved in extensive discussions with the White House over what to do with the tapes. Goss supposedly thought there was an understanding the tapes would be saved and is upset to learn they have been destroyed (see Between 2003-Late 2005 and Before November 2005). [Newsweek, 12/11/2007] Congressional officials responsible for oversight are not informed for a year (see March 14, 2007). A White House spokeswoman will say that President Bush has “no recollection” of being made aware of the tapes’ destruction before 2007 (see December 11, 2007). It is also unclear whether the Justice Department is notified in advance or not. [New York Times, 12/8/2007] The CIA still retains tapes of interrogations of at least one detainee (see September 19 and October 18, 2007).

Entity Tags: Abd al-Rahim al-Nashiri, Abu Zubaida, Jose Rodriguez, Jr., CIA Bangkok Station, John Rizzo, Porter J. Goss, Michael K. Winograd, Central Intelligence Agency

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

Following a request that the CIA be exempted from a US ban on torture, claims about alleged CIA mistreatment of prisoners begin to appear in the media, apparently fueled by CIA employees unhappy with the practices the CIA is employing. On November 2, the Washington Post reveals information about the CIA’s network of secret prisons, including facilities in Europe, which is kept secret from “nearly all members of Congress charged with overseeing the CIA’s covert actions.” The rationale for the policy is that the CIA apparently needs to hold people without the restrictions imposed by the US legal system, in order to keep the country safe. Detainees are said to be tortured, and this is not only questionable under US law, but, in some cases, against the law of the host country. [Washington Post, 11/2/2005] On November 9, the New York Times reveals that in 2004, the CIA’s Inspector General secretly concluded that the CIA’s aggressive interrogation techniques in use up until that time were likely in violation of a 1994 international treaty against torture signed by the US (see May 7, 2004). [New York Times, 11/9/2005] After the network is revealed, there is much interest in what actually goes on in it and more important details are uncovered by ABC News on November 18. Apparently, the CIA’s interrogation techniques have led to the death of one detainee and include sleep deprivation, physical violence, waterboarding, and leaving prisoners in cold cells (see Mid-March 2002). The intelligence generated by these techniques is said to be questionable, and one source says: “This is the problem with using the waterboard. They get so desperate that they begin telling you what they think you want to hear.” [ABC News, 11/18/2005] Some videotapes of CIA interrogations of detainees are destroyed this same month, although what date this happens exactly is unclear (see November 2005). The CIA is also so alarmed by these revelations that it immediately closes its secret prisons in Eastern Europe and opens a new one in a remote section of the Sahara desert (see November 2005).

Entity Tags: Central Intelligence Agency

Timeline Tags: Torture of US Captives, Complete 911 Timeline

On November 3, 2005, Leonie Brinkema, the judge in the Zacarias Moussaoui trial, asks the CIA about recordings of interrogations of detainees who are related to the Moussaoui case. Eleven days later, the CIA again incorrectly claims to prosecutors in that trial that it has no such recordings. The CIA made a similar claim in 2003 (see May 7-9, 2003), but in fact the CIA secretly videotaped detainee interrogations in 2002 (see Spring-Late 2002). Some of these videotapes are destroyed this month (see November 2005), however it is unknown if the destruction takes place before or after this date. In late 2007, the CIA will reveal that it did have some videotapes after all and prosecutors will finally be able to view some of them (see September 19 and October 18, 2007). But it will also be revealed that most of the videotapes were destroyed (see December 6, 2007). Prosecutors will later claim that neither the video nor the audio recordings contained material relevant to the Moussaoui trial, and some of the content of the interrogations was provided during discovery. [US District Court for the Eastern District of Virginia, Alexandria Division, 7/31/2006; US District Court for the Eastern District of Virginia, Alexandria Division, 10/25/2007 pdf file; Reuters, 11/13/2007]

Entity Tags: Leonie Brinkema, Zacarias Moussaoui, Central Intelligence Agency

Timeline Tags: Torture of US Captives, Complete 911 Timeline, 9/11 Timeline, Civil Liberties

The US charges British citizen Binyam Ahmed Mohamed (see May-September, 2001), who has allegedly used the aliases Talha al-Kini, Foaud Zouaoui, Taha al-Nigeri, and John Samuel, with conspiracy to foment and carry out terrorist attacks against US targets. Mohamed, who was arrested in Pakistan in April 2002, is charged with “attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; destruction of property by an unprivileged belligerent; and terrorism,” though the charge sheet is unclear whether Mohamed carried out any of these actions himself, or whether he was part of a larger conspiracy by the al-Qaeda terrorist organization. The charges allege links between Mohamed and “shoe bomber” Richard Reid (see December 22, 2001), radical Islamist Abu Zubaida, 9/11 plotter Khalid Shaikh Mohammed, and alleged “dirty bomber” Jose Padilla. Mohamed is alleged to have been part of the Padilla bomb plot. [US Defense Department, 11/4/2005 pdf file] Much of the evidence against Mohamed comes from confessions he allegedly made while in US custody at the detention camp at Bagram Air Force Base (see January-September 2004), and in Guantanamo Bay (see September 2004 and After). He was also held in Pakistan (see April 10-May, 2002 and May 17 - July 21, 2002), and “rendered” to a secret prison in Morocco (see July 21, 2002 -- January 2004). Through his lawyers, Mohamed has claimed that he was tortured in all four detention sites. The British judiciary will later establish that British officials facilitated Mohamed’s interrogation in Pakistan, and had “full knowledge of the reported conditions of his detention and treatment” (see February 24, 2009). [Guardian, 2/5/2009] As with Padilla, the charges relating to the “dirty bomb” plot will later be dropped due to lack of evidence, and all charges against Mohamed will eventually be dropped (see October-December 2008 and February 4, 2009).

Entity Tags: Binyam Mohamed

Timeline Tags: Torture of US Captives

Brett Tolman.Brett Tolman. [Source: ABC4 (.com)]Brett Tolman, a Republican Senate Judiciary Committee official, tells Assistant Attorney General William Moschella that he will perform a “comprehensive fix” to the USA Patriot Act reauthorization coming up for approval in Congress (see March 9, 2006). Tolman and Moschella are referring to a provision in the reauthorization legislation that would allow the attorney general to appoint interim US Attorneys on an indefinite basis without having them go through Senate confirmation, and remove the ability of a federal court to appoint a US Attorney (see July 2005 - March 2006). Moschella suggests Tolman use the “comprehensive fix” of repealing Section 546 of Title 28 of the United States Code, subsections C and D, and replacing them with the following language: “A person appointed as United States Attorney under this section may serve until the qualification of a United States Attorney for such district appointed by the president under section 541 of this title.” Late the same evening, Tolman receives an email from Moschella instructing him to quietly insert the provision in the USA Patriot Act reauthorization bill that would eliminate a 120-day limit for “interim” US Attorneys to serve without Senate confirmation. In essence, the provision would allow such “interims” to serve indefinitely, cutting the Senate entirely out of the process of naming US Attorneys and allowing the attorney general to make political appointments without oversight. Tolman replies, “I will get the comprehensive fix done.” He slips the provision into a draft of the bill while it is in conference committee. None of the members notice the provision, and it is part of the bill as signed into law in March 2006 (see March 9, 2006). Tolman himself is one of the first beneficiaries of the new provision, becoming the US Attorney for Utah. When the new provision comes to light in early 2007, both chambers of Congress vote overwhelmingly to repeal it. This is one of numerous “stealth provisions” the White House will have inserted into legislation with the help of compliant Congressional Republicans and staffers. [Savage, 2007, pp. 316; US Department of Justice, 3/23/2007 pdf file] Moschella will later take the credit for the provision, and will tell reporters that he made the change on behalf of the Justice Department “without the knowledge or coordination of his superiors at the Justice Department or anyone at the White House.” [Talking Points Memo, 2011]

Entity Tags: William E. Moschella, USA Patriot Act, Senate Judiciary Committee, Bush administration (43), Brett Tolman, US Department of Justice

Timeline Tags: Civil Liberties

Attorney General Alberto Gonzales sends a letter to a federal judge in Montana, assuring him that US Attorney William W. Mercer is not violating federal law by spending almost all of his time in Washington as a temporary Justice Department official. The same day, Mercer has a Republican Senate staffer insert language into the USA Patriot reauthorization bill (see March 9, 2006) that would retroactively change the rules and allow federal prosecutors such as himself to live outside their districts and serve in other positions. Congress will include the language in the bill when it passes the legislation. Mercer and a small number of other Justice Department employees are the only ones to benefit from the provision. In 2007, when the provision is revealed to the public, Justice Department officials will say the provision was necessary to ensure that prosecutors such as Mercer could fill temporary positions in Washington, Iraq, and elsewhere. Critics will accuse Gonzales of being, in the Washington Post’s words, “less than truthful” about the actions of himself, his staff, and the White House. The question surrounding Mercer involves residency. Mercer is the US Attorney for Montana, appointed in 2001. In June 2005, he was appointed to serve as principal associate deputy attorney general, at Gonzales’s request. US District Chief Judge Donald W. Molloy of Billings has become increasingly irked at Mercer’s absence from Montana for the last two years. In October, Molloy wrote Gonzales to say that Mercer was violating federal law because he “no longer resides in Montana” and was living with his family in the Washington area. Gonzales replies three weeks later to tell Molloy that Mercer “is in compliance with the residency requirement” under federal law because he “is domiciled there, returns there on a regular basis, and will live there full-time as soon as his temporary assignment is completed.” At the same time Gonzales writes Molloy, Mercer has a Senate staffer, Brett Tolman, insert the provision into the Patriot Act legislation. Tolman is the counsel for Senator Arlen Specter (R-PA), chairman of the Senate Judiciary Committee. Tolman will later be named the US Attorney for Utah. Specter’s office will characterize the provision as “unremarkable” and aboveboard. Mercer currently serves as acting associate attorney general and has been nominated for the position on a permanent basis. He spends only about three days a month in Montana and delegates almost all of his duties as US Attorney to underlings. [ePluribus Media, 3/26/2007; Washington Post, 5/2/2007] Mercer will be nominated to serve as associate attorney general, the third-highest position in the Justice Department, in September 2006. He will not be confirmed for the position by the Senate, as confirmation would require his leaving the position of US Attorney. In June 2007, Mercer will resign from the associate attorney general position, retaining his position as US Attorney for Montana (see June 22, 2007). [ePluribus Media, 3/26/2007; Washington Post, 6/22/2007]

Entity Tags: Donald W. Molloy, Alberto R. Gonzales, Brett Tolman, Washington Post, Arlen Specter, Senate Judiciary Committee, William W. Mercer, US Department of Justice

Timeline Tags: Civil Liberties

McCain speaking against torture on Fox News.McCain speaking against torture on Fox News. [Source: Daily Gadfly (.com)]Senator John McCain (R-AZ), a former prisoner of war during the Vietnam War and a victim of torture, writes an impassioned op-ed for Newsweek exhorting the US not to resort to torture in its interrogations of terror suspects. He writes: “I do, respectfully, take issue with the position that the demands of this war require us to accord a lower station to the moral imperatives that should govern our conduct in war and peace when they come in conflict with the unyielding inhumanity of our vicious enemy.… We should not torture or treat inhumanely terrorists we have captured. The abuse of prisoners harms, not helps, our war effort.”
Produces False Information - He gives numerous reasons: abusing prisoners does not produce reliable information, but instead “often produces bad intelligence because under torture a person will say anything he thinks his captors want to hear—whether it is true or false—if he believes it will relieve his suffering.” McCain recounts his own example of providing false information under torture, giving his captors the names of the Green Bay Packers’ offensive line instead of the names of his flight squadron. “It seems probable to me that the terrorists we interrogate under less than humane standards of treatment are also likely to resort to deceptive answers that are perhaps less provably false than that which I once offered.”
Betrays America's 'Commitment to Basic Humanitarian Values' - Moreover, McCain writes, America’s “commitment to basic humanitarian values affects—in part—the willingness of other nations to do the same. Mistreatment of enemy prisoners endangers our own troops who might someday be held captive.” We cannot expect al-Qaeda and other such enemies to be “bound by the principle of reciprocity,” but “we should have concern for those Americans captured by more traditional enemies, if not in this war then in the next.” Global public criticism of North Vietnam’s brutality towards US prisoners resulted in a substantial decrease in their abuse of POWs. The war against terrorism is “a war of ideas,” he writes, “a struggle to advance freedom in the face of terror in places where oppressive rule has bred the malevolence that creates terrorists. Prisoner abuses exact a terrible toll on us in this war of ideas. They inevitably become public, and when they do they threaten our moral standing, and expose us to false but widely disseminated charges that democracies are no more inherently idealistic and moral than other regimes.” To defeat the idea of terrorism, “we must prevail in our defense of American political values as well. The mistreatment of prisoners greatly injures that effort.”
'We Are Different and Better than Our Enemies' - McCain writes that while he does not “mourn the loss of any terrorist’s life… [w]hat I do mourn is what we lose when by official policy or official neglect we allow, confuse, or encourage our soldiers to forget that best sense of ourselves, that which is our greatest strength—that we are different and better than our enemies, that we fight for an idea, not a tribe, not a land, not a king, not a twisted interpretation of an ancient religion, but for an idea that all men are created equal and endowed by their Creator with inalienable rights.”
Waterboarding Is Torture - McCain states flatly that any interrogation technique that simulates an execution, including waterboarding, is torture. “[I]f you gave people who have suffered abuse as prisoners a choice between a beating and a mock execution, many, including me, would choose a beating. The effects of most beatings heal. The memory of an execution will haunt someone for a very long time and damage his or her psyche in ways that may never heal. In my view, to make someone believe that you are killing him by drowning is no different than holding a pistol to his head and firing a blank. I believe that it is torture, very exquisite torture.”
Exceptions Do Not Require New Laws - There is always the extreme circumstance bandied about in discussions: what should be done with a terror suspect who holds critical information about an imminent terrorist attack? While such an extreme circumstance may well require extreme interrogation methods, McCain writes, “I don’t believe this scenario requires us to write into law an exception to our treaty and moral obligations that would permit cruel, inhumane, and degrading treatment. To carve out legal exemptions to this basic principle of human rights risks opening the door to abuse as a matter of course, rather than a standard violated truly in extremis. It is far better to embrace a standard that might be violated in extraordinary circumstances than to lower our standards to accommodate a remote contingency, confusing personnel in the field and sending precisely the wrong message abroad about America’s purposes and practices.” [Newsweek, 11/21/2005]

Entity Tags: John McCain

Timeline Tags: Torture of US Captives

Jose Padilla being escorted by federal agents in January 2006.Jose Padilla being escorted by federal agents in January 2006. [Source: Alan Diaz / Associated Press]Jose Padilla, a US citizen and “enemy combatant” alleged to be an al-Qaeda terrorist (see May 8, 2002) and held without charges for over three years (see October 9, 2005), is charged with being part of a North American terrorist cell that sent money and recruits overseas to, as the indictment reads, “murder, maim, and kidnap.” The indictment contains none of the sensational allegations that the US government has made against Padilla (see June 10, 2002), including his supposed plan to detonate a “dirty bomb” inside the US (see Early 2002) and his plans to blow up US hotel and apartment buildings (see March 2002). Nor does the indictment accuse Padilla of being a member of al-Qaeda. Attorney General Alberto Gonzales says, “The indictment alleges that Padilla traveled overseas to train as a terrorist (see September-October 2000) with the intention of fighting a violent jihad.” He refuses to say why the more serious charges were not filed. Some provisions of the Patriot Act helped the investigation, Gonzales adds: “By tearing down the artificial wall that would have prevented this kind of investigation in the past, we’re able to bring these terrorists to justice,” he says. The Padilla case has become a central part of the dispute over holding prisoners such as Padilla without charge; by charging Padilla with lesser crimes, the Bush administration avoids the possibility of the Supreme Court ruling that he and other “enemy combatants,” particularly American citizens, must either be tried or released. Law professor Eric Freedman says the Padilla indictment is an effort by the administration “to avoid an adverse decision of the Supreme Court.” Law professor Jenny Martinez, who represents Padilla, says: “There’s no guarantee the government won’t do this again to Mr. Padilla or others. The Supreme Court needs to review this case on the merits so the lower court decision is not left lying like a loaded gun for the government to use whenever it wants.” Padilla’s lawyers say the government’s case against their client is based on little more than “double and triple hearsay from secret witnesses, along with information allegedly obtained from Padilla himself during his two years of incommunicado interrogation.” Padilla will be transferred from military custody to the Justice Department, where he will await trial in a federal prison in Miami. He faces life in prison if convicted of conspiracy to murder, maim, and kidnap overseas. The lesser charges—providing material support to terrorists and conspiracy—carry maximum prison terms of 15 years each. [Associated Press, 11/22/2005; Fox News, 11/23/2005]
'Dirty Bomb' Allegations 'Not Credible,' Says Former FBI Agent - Retired FBI agent Jack Cloonan, an expert on al-Qaeda, later says: “The dirty bomb plot was simply not credible. The government would never have given up that case if there was any hint of credibility to it. Padilla didn’t stand trial for it, because there was no evidence to support it.” [Vanity Fair, 12/16/2008]
Issue with CIA Videotapes - In 2002, captured al-Qaeda leader Abu Zubaida identified Padilla as an al-Qaeda operative (see Mid-April 2002) and the government cited Zubaida as a source of information about Padilla after Padilla’s arrest. Yet, sometime this same month, the CIA destroys the videotapes of Zubaida’s interrogations from the time period where he allegedly identified Padilla (see November 2005). The Nation’s Aziz Huq will later comment: “Given the [Bush] administration’s reliance on Zubaida’s statements as evidence of Padilla’s guilt, tapes of Zubaida’s interrogation were clearly relevant to the Padilla trial.… A federal criminal statute prevents the destruction of any record for a foreseeable proceeding, even if the evidence is not admissible.… [I]t seems almost certain that preservation of the tapes was legally required by the Jose Padilla prosecution.” [Nation, 12/11/2007]

Entity Tags: Jenny Martinez, Jose Padilla, US Supreme Court, Jack Cloonan, Eric Freedman, Alberto R. Gonzales, Bush administration (43), Al-Qaeda, Aziz Huq, Central Intelligence Agency

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

The Supreme Court declines, without comment, to hear the case (see August 4, 2005) brought by former FBI translator Sibel Edmonds. [New York Times, 11/28/2005; Reuters, 11/28/2005] The decision puts an end to Edmonds’ legal efforts to hold the bureau accountable for its failure to address several security issues raised by Edmonds in late 2001 and early 2002 (see December 2, 2001 and Afternoon February 12, 2002, respectively). On August 4, Edmonds had filed a petition with the Supreme Court asking it “to provide guidance to the lower courts about the proper scope and application of the state secrets privilege (see March 9, 1953), and to prevent further misuse of the privilege to dismiss lawsuits at the pleading stage.” The petition also urged the court to affirm that the press and public may not be barred from court proceedings in civil cases without just cause. (In May, the federal appeals court had closed the courtroom to the public and media.) Had the Supreme Court had ruled in favor of Edmonds, she would have been able to return to the lower courts and start her case again. [Petition for a writ of certiorari. Sibel Edmonds v. Department of Justice, et all., 8/4/2005, pp. 2 pdf file; Government Executive, 8/8/2005]

Entity Tags: US Supreme Court, Sibel Edmonds

Timeline Tags: Complete 911 Timeline

Deputy Director of National Intelligence Michael Hayden learns that the CIA has videotaped some detainee interrogations (see Spring-Late 2002). Hayden will later say he finds this out towards the end of his time as deputy director of national intelligence, a position he leaves in May 2006. Although the tapes were destroyed several months previously (see November 2005), Hayden will later say he is not aware of their destruction at this point: “I did not personally know before they were destroyed, not at all… I was aware of the existence of the tapes but really didn’t become focused on it until the summer of ‘06.” It appears that Hayden does not inform any congressional oversight committees of the destruction until 2007 (see March 14, 2007 and December 7, 2007), even though he becomes CIA director in the summer of 2006 (see May 5, 2006). [Associated Press, 12/12/2007; Fox News, 12/13/2007]

Entity Tags: Michael Hayden, Central Intelligence Agency

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

Arthur Sulzberger.Arthur Sulzberger. [Source: New York Times]George W. Bush summons New York Times publisher Arthur Sulzberger and Times editor Bill Keller to the Oval Office to try to dissuade them from running a landmark story revealing the NSA’s illegal wiretapping program (see December 15, 2005) that he authorized in 2002 (see Early 2002). In the meeeting, Bush warns Sulzberger and Keller that “there’ll be blood on your hands” if another terrorist attack were to occur, obviously implying that to reveal the nature of the program would invite terrorist strikes. Bush is unsuccessful in his attempt to quash the story. [Newsweek, 12/21/2005; Newsweek, 12/22/2008]

Entity Tags: New York Times, Arthur Sulzberger, George W. Bush, National Security Agency, Bill Keller

Timeline Tags: Civil Liberties

In his weekly radio address, President Bush claims that the US always obtains court warrants before launching electronic surveillance efforts. “The Patriot Act is helping America defeat our enemies while safeguarding civil liberties for all our people,” he says. “The judicial branch has a strong oversight role in the application of the Patriot Act. Under the act, law enforcement officers need a federal judge’s permission to wiretap a foreign terrorist’s phone or search his property. Congress also oversees our use of the Patriot Act. Attorney General Gonzales delivers regular reports on the Patriot Act to the House and the Senate.” [White House, 12/10/2005] Bush has made similar claims in the recent past (see April 19-20, 2004, June 9, 2005, and April 19-20, 2004). Former AT&T senior technician Mark Klein (see July 7, 2009 and May 2004), who helped install the equipment used by the National Security Agency (NSA) and his firm to intercept foreign and domestic Internet communications (see January 16, 2004), will later say that Bush’s insistence that the administration gets court orders before wiretapping communications is false. AT&T, on behalf of the NSA, was monitoring “billions of messages a second,” Klein will write, all without court orders. [Klein, 2009, pp. 47-48]

Entity Tags: Mark Klein, AT&T, George W. Bush, USA Patriot Act, National Security Agency

Timeline Tags: Civil Liberties

The Army adopts a new, classified set of interrogation methods that some feel may change the nature of the debate over cruel and inhuman treatment of detainees in US custody. The Detainee Treatment Act (DTA—see December 30, 2005), which bases its definition of torture in part on Army standards, is currently wending its way through Congress. The new set of instructions are being added to the revised Army Field Manual, after they are approved by undersecretary of defense Stephen Cambone. The addendum provides exact details on what kinds of interrogation procedures can and cannot be used, and under what circumstances, pushing the legal limit of what interrogations can be used in ways that the Army has never done before. Some military observers believe that the new guidelines are an attempt by the Army to undercut the DTA, and many believe the bill’s sponsor, Senator John McCain (R-AZ) will be unhappy with the addendum. “This is a stick in McCain’s eye,” one official says. “It goes right up to the edge. He’s not going to be comfortable with this.” McCain has not yet been briefed on the contents of the new guidelines. McCain spokesman Mark Salter says, “This is politically obtuse and damaging. The Pentagon hasn’t done one molecule of political due diligence on this.” One Army officer says that the core of the definition of torture—what is and is not “cruel, inhumane, and degrading” treatment—“is at the crux of the problem, but we’ve never defined that.” The new Army Field Manual specifically prohibits such tactics as stress positioning, stripping prisoners, imposing dietary restrictions, using police dogs to intimidate prisoners, and sleep deprivation. The new manual is expected to be issued before the end of the year. [New York Times, 12/14/2005] The day after this is reported, President Bush agrees not to veto the DTA (see December 15, 2005).

Entity Tags: Stephen A. Cambone, Detainee Treatment Act, US Department of Defense, John McCain, US Department of the Army

Timeline Tags: Torture of US Captives, Civil Liberties

New York Times headline from article revealing NSA surveillance.New York Times headline from article revealing NSA surveillance. [Source: CBS News]The New York Times reveals that after the 9/11 attacks, President Bush granted the National Security Agency (NSA) secret authorization to eavesdrop on Americans and others inside the US without going through the Foreign Intelligence Surveillance Act (FISA) court to obtain legal warrants (see Early 2002. The administration justifies its actions by claiming such eavesdropping, which includes wiretapping phones and reading e-mails, is necessary to find evidence of terrorist activities, and says the nation needs the program after the 9/11 attacks exposed deficiencies in the US intelligence community’s information gathering process, and because of what they characterize as the “handcuffing” of US intelligence agencies by restrictive laws. The Times has had the article for over a year; the White House prevailed on the Times not to publish its findings for that time, arguing that publication would jeopardize continuing investigations and warn potential terrorists that they were under scrutiny. Many believe that the White House wanted to delay the publication of the article until well after the 2004 presidential elections. The Times delayed publication for over a year, and agreed to suppress some information that administration officials say could be useful to terrorists. (Less than two weeks before the article is published, Bush tries to convince the Times not to print the article at all: see December 6, 2005.) Two days after the Times publishes its article, Bush will acknowledge the order, and accuse the Times of jeopardizing national security (see December 17, 2005). The NSA program eavesdrops without warrants on up to 500 people in the US at any given time, officials say; the overall numbers have likely reached into the thousands. Overseas, up to 7,000 people suspected of terrorist ties are being monitored. Officials point to the discovery of a plot by Ohio trucker and naturalized US citizen and alleged al-Qaeda supporter Iyman Faris to bring down the Brooklyn Bridge with blowtorches as evidence of the program’s efficacy. They also cite the disruption of an al-Qaeda plot to detonate fertilizer bombs outside of British pubs and train stations by the program. But, officials say, most people targeted by the NSA for warrantless wiretapping have never been charged with a crime, and many are targeted because of questionable evidence and groundless suspicion. Many raise an outcry against the program, including members of Congress, civil liberties groups, immigrant rights groups, and others who insist that the program undermines fundamental Constitutional protections of US citizens’ civil liberties and rights to privacy. Several other government programs to spy on Americans have been challenged, including the Federal Bureau of Investigation (FBI)‘s surveillance of US citizens’ library and Internet usage, the monitoring of peaceful antiwar protests, and the proposed use of public and private databases to hunt for terrorist links. In 2004, the Supreme Court overturned the administration’s claim that so-called “enemy detainees” were not entitled to judicial review of their indefinite detentions. Several senior officials say that when the warrantless wiretapping program began, it operated with few controls and almost no oversight outside of the NSA itself. The agency is not required to seek the approval of the Justice Department or anyone else outside the FISA court for its surveillance operations. Some NSA officials wanted nothing to do with a program they felt was patently illegal, according to a former senior Bush administration official. Internal concerns about the program prompted the Bush administration to briefly suspend the program while Justice Department officials audited it and eventually provided some guidelines for its operations. A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees the FISA Court, helped spur the suspension, according to officials. Kollar-Kotelly questioned whether information obtained under the program was being improperly used as the basis for FISA wiretap warrant requests from the Justice Department. Some government lawyers say that the Justice Department may have deliberately misled Kollar-Kotelly and the FISA court about the program in order to keep the program under wraps. The judge insisted to Justice Department officials that any material gathered under the program not be used in seeking wiretap warrants from her court. The question also arose in the Faris case, when senior Justice Department officials worried that evidence obtained by warrantless wiretapping by the NSA of Faris could be used in court without having to lie to the court about its origins. [New York Times, 12/15/2005]

Entity Tags: US Supreme Court, George W. Bush, US Department of Justice, Iyman Faris, National Security Agency, New York Times, Al-Qaeda, Foreign Intelligence Surveillance Court, Colleen Kollar-Kotelly

Timeline Tags: Civil Liberties

Times executive editor Bill Keller.Times executive editor Bill Keller. [Source: New York Times]The New York Times’s executive editor, Bill Keller, defends his paper’s decision to reveal the Bush administration’s warrantless wiretapping program, conducted through the NSA (see December 15, 2005), after holding the story for over a year. Keller writes: “We start with the premise that a newspaper’s job is to publish information that is a matter of public interest. Clearly a secret policy reversal that gives an American intelligence agency discretion to monitor communications within the country is a matter of public interest.… A year ago, when this information first became known to Times reporters, the administration argued strongly that writing about this eavesdropping program would give terrorists clues about the vulnerability of their communications and would deprive the government of an effective tool for the protection of the country’s security. Officials also assured senior editors of The Times that a variety of legal checks had been imposed that satisfied everyone involved that the program raised no legal questions. As we have done before in rare instances when faced with a convincing national security argument, we agreed not to publish at that time. We also continued reporting, and in the ensuing months two things happened that changed our thinking. First, we developed a fuller picture of the concerns and misgivings that had been expressed during the life of the program. It is not our place to pass judgment on the legal or civil liberties questions involved in such a program, but it became clear those questions loomed larger within the government than we had previously understood. Second, in the course of subsequent reporting we satisfied ourselves that we could write about this program—withholding a number of technical details—in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record. The fact that the government eavesdrops on those suspected of terrorist connections is well-known. The fact that the NSA can legally monitor communications within the United States with a warrant from the Foreign Intelligence Surveillance Court is also public information. What is new is that the NSA has for the past three years had the authority to eavesdrop on Americans and others inside the United States without a warrant. It is that expansion of authority—not the need for a robust anti-terror intelligence operation—that prompted debate within the government, and that is the subject of the article.” [CNN, 12/16/2005]

Entity Tags: Foreign Intelligence Surveillance Court, New York Times, George W. Bush, Bill Keller

Timeline Tags: Civil Liberties

President Bush acknowledges that he issued a 2002 executive order authorizing the National Security Agency (NSA) to wiretap US citizens’ phones and e-mails without proper warrants, and accuses the New York Times of jeopardizing national security by publishing its December 15 article (see Early 2002 and December 15, 2005). Bush says he was within the law to issue such an order, which many feel shatters fundamental Constitutional guarantees of liberty and privacy, but accuses the Times of breaking the law by publishing the article. Bush tells listeners during his weekly radio address that the executive order is “fully consistent” with his “constitutional responsibilities and authorities.” But, he continues, “Yesterday the existence of this secret program was revealed in media reports, after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk.” He admits allowing the NSA to “to intercept the international communications of people with known links to al-Qaeda and related terrorist organizations” in a program designed to “detect and prevent terrorist attacks.” Under the law, the NSA must obtain warrants from the Foreign Intelligence Surveillance Act (FISA) Court, but after Bush’s executive order, it was no longer required to do so. Bush justifies the order by citing the example of two 9/11 hijackers, Khalid Almihdhar and Nawaf Alhazmi, who, he says, “communicated while they were in the United States to other members of al-Qaeda who were overseas, but we didn’t know they were here until it was too late.” Because of the unconstitutional wiretapping program, it is “more likely that killers like these 9/11 hijackers will be identified and located in time, and the activities conducted under this authorization have helped detect and prevent possible terrorist attacks in the United States and abroad.” Bush also admits to reauthorizing the program “more than thirty times,” and adds, “I intend to do so for as long as our nation faces a continuing threat from al-Qaeda and related groups.” [CNN, 12/16/2005] Bush fails to address the likelihood that the domestic surveillance program began well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002).

Entity Tags: National Security Agency, George W. Bush, Khalid Almihdhar, Foreign Intelligence Surveillance Act, Nawaf Alhazmi, Al-Qaeda

Timeline Tags: Civil Liberties

After the NSA’s warrantless wiretapping program is revealed (see Early 2002 and December 15, 2005), some commentators criticize the program. Americans have fundamental Constitutional protections that are enforceable in court whether their conversations are domestic or international, says law scholar Geoffrey Stone. Stone says that President Bush’s emphasis that NSA wiretapping only takes place on US calls to overseas phones or overseas e-mails “is no different, as far as the law is concerned, from saying we only do it on Tuesdays.” Former FBI national security law chief Michael Woods, who served in the position when Bush signed the NSA directive, calls the program “very dangerous.” Though Woods says the program was justifiable in the immediate aftermath of 9/11, “[By now] we ought to be past the time of emergency responses. We ought to have more considered views now…. We have time to debate a legal regime and what’s appropriate.” [Washington Post, 12/18/2005] Kate Martin, director of the Center for National Security Studies, says the secret order may amount to Bush authorizing criminal activity in direct violation of FISA. “This is as shocking a revelation as we have ever seen from the Bush administration,” she says. “It is, I believe, the first time a president has authorized government agencies to violate a specific criminal prohibition and eavesdrop on Americans.” The American Civil Liberties Union’s Caroline Frederickson says of the program, “It’s clear that the administration has been very willing to sacrifice civil liberties in its effort to exercise its authority on terrorism, to the extent that it authorizes criminal activity.” [Washington Post, 12/16/2005]

Entity Tags: Center for National Security Studies, Geoffrey Stone, American Civil Liberties Union, National Security Agency, Caroline Frederickson

Timeline Tags: Civil Liberties

Attorney General Alberto Gonzales and NSA chief Lieutenant General Michael Hayden conduct their own “briefing” on the recently revealed NSA wiretapping program (see December 15, 2005) with the White House press corps. Gonzales and Hayden make the following points:
bullet Gonzales says that he will not discuss the internal workings of the still-classified program, only what he calls its “legal underpinnings.”
bullet He claims that the program, which he calls “the most classified program that exists in the United States government,” is legal because President Bush authorized it, and says that the idea that “the United States is somehow spying on American citizens” is wrong: it is “[v]ery, very important to understand that one party to the communication has to be outside the United States.”
bullet He says that for the NSA to eavesdrop on a US citizen’s telephone or e-mail communications, “we have to have a reasonable basis to conclude that one party to the communication is a member of al-Qaeda, affiliated with al-Qaeda, or a member of an organization affiliated with al-Qaeda, or working in support of al-Qaeda.” The wiretapping program is an essential part of the administration’s war against terror, he says.
bullet He goes on to claim that “the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes” legal grounds for “this kind of signals intelligence.” [White House, 12/19/2005] The White House signed Congress’s Authorization to Use Military Force (AUMF) into law on September 18, 2001 (see September 14-18, 2001. [White House, 9/18/2001]
Hayden Claims Supreme Court Backing - While he admits that the Congressional authorization to use force against international terrorism does not specifically mention any kind of electronic surveillance, he refers the listeners to the Supreme Court case concerning alleged US terrorist Yaser Esam Hamdi (see June 28, 2004), in which the Court ruled that Hamdi had the legal right to challenge his detention. “[T]he United States government took the position that Congress had authorized that detention in the authorization to use force, even though the authorization to use force never mentions the word ‘detention.’ And the Supreme Court, a plurality written by Justice O’Connor agreed. She said, it was clear and unmistakable that the Congress had authorized the detention of an American citizen captured on the battlefield as an enemy combatant for the remainder—the duration of the hostilities. So even though the authorization to use force did not mention the word, ‘detention,’ she felt that detention of enemy soldiers captured on the battlefield was a fundamental incident of waging war, and therefore, had been authorized by Congress when they used the words, ‘authorize the President to use all necessary and appropriate force.’ For the same reason, we believe signals intelligence is even more a fundamental incident of war, and we believe has been authorized by the Congress. And even though signals intelligence is not mentioned in the authorization to use force, we believe that the Court would apply the same reasoning to recognize the authorization by Congress to engage in this kind of electronic surveillance.”
Bush 'Very Concerned' With Protecting Civil Liberties - Gonzales insists, Bush “is very concerned about the protection of civil liberties, and that’s why we’ve got strict parameters, strict guidelines in place out at NSA to ensure that the program is operating in a way that is consistent with the President’s directives.” He adds, “[W]e feel comfortable that this surveillance is consistent with requirements of the Fourth Amendment. The touchstone of the Fourth Amendment is reasonableness, and the Supreme Court has long held that there are exceptions to the warrant requirement in—when special needs outside the law enforcement arena. And we think that that standard has been met here.”
Wiretapping Essential in Catching Terrorists - Hayden reiterates how important the wiretapping is to catching terrorists and stopping potential attacks against US targets, though he and Gonzales both refuse to say what, if any, terrorist plots or what terror suspects might have been captured through the NSA wiretapping program. Hayden does say, “This program has been successful in detecting and preventing attacks inside the United States.…I can say unequivocally, all right, that we have got information through this program that would not otherwise have been available,” though he refuses to cite specifics. He admits that there have been some errors in surveilling innocent US citizens, though he refuses to give any details, and says those errors were quickly corrected.
Administration Not Required to Go Through FISA - Gonzales, who is the main speaker in the briefing, reiterates that while the administration continues to seek warrants from the Foreign Intelligence Surveillance (FISA) court, “we are not legally required to do, in this particular case, because the law requires that we—FISA requires that we get a court order, unless authorized by a statute, and we believe that authorization has occurred.” He justifies the administration’s refusal to use the FISA court for obtaining warrants by insisting that NSA officials “tell me that we don’t have the speed and the agility that we need, in all circumstances, to deal with this new kind of enemy. You have to remember that FISA was passed by the Congress in 1978. There have been tremendous advances in technology… since then.” Hayden adds, “I don’t think anyone could claim that FISA was envisaged as a tool to cover armed enemy combatants in preparation for attacks inside the United States. And that’s what this authorization under the President is designed to help us do.”
'Balancing' of Civil Liberties, National Security - Hayden says the warrantless wiretapping program is part of “a balancing between security and liberty,” a more “aggressive” operation “than would be traditionally available under FISA. It is also less intrusive. It deals only with international calls. It is generally for far shorter periods of time. And it is not designed to collect reams of intelligence, but to detect and warn and prevent about attacks. And, therefore, that’s where we’ve decided to draw that balance between security and liberty.”
Media Leaks Damaging to National Security - Gonzales refuses to talk about when any members of Congress were briefed on the program or what they were told, but he does imply that there will be some sort of leak investigation as to how the New York Times found out about the program: “[T]his is really hurting national security, this has really hurt our country, and we are concerned that a very valuable tool has been compromised. As to whether or not there will be a leak investigation, we’ll just have to wait and see.”
No Evidence of Compromised National Security - When asked whether he can cite any evidence that the revelation of the program’s existence has actually compromised anything—“Don’t you assume that the other side thinks we’re listening to them? I mean, come on,” one reporter says—Gonzales responds, rather confusingly, “I think the existence of this program, the confirmation of the—I mean, the fact that this program exists, in my judgment, has compromised national security, as the President indicated on Saturday.”
Easier to Sidestep FISA Instead of Seek Congressional Approval - He does admit that the administration decided to sidestep the FISA court entirely instead of attempt to work with Congress to rewrite the FISA statutes because “we were advised that that would be difficult, if not impossible” to amend the law to the White House’s satisfaction. Gonzales says those who are concerned about the program being excessively intrusive or a threat to American civil liberties simply “don’t understand the specifics of the program, they don’t understand the strict safeguards within the program.… Part of the reason for this press brief today is to have you help us educate the American people and the American Congress about what we’re doing and the legal basis for what we’re doing.” He adds that any legal experts who believe the program is illegal are basing their judgments “on very limited information.”
Tough Questioning - One reporter asks an unusually tough series of questions to Gonzales: “Do you think the government has the right to break the law?”, to which Gonzales replies, “Absolutely not. I don’t believe anyone is above the law.” The reporter then says, “You have stretched this resolution for war into giving you carte blanche to do anything you want to do,” to which Gonzales replies cryptically, “Well, one might make that same argument in connection with detention of American citizens, which is far more intrusive than listening into a conversation.” The reporter insists, “You’re never supposed to spy on Americans,” and Gonzales deflects the responsibility for the decision back onto the Supreme Court.
Administration Will Tell Nation What It Needs to Know - Gonzales says the administration has no intention of releasing any of the classified legal opinions underpinning the program, and this press briefing is one of the methods by which the administration will “educat[e] the American people…and the Congress” to give them what they need to know about the program. [White House, 12/19/2005]

Entity Tags: White House press corps, Michael Hayden, Al-Qaeda, National Security Agency, Alberto R. Gonzales, George W. Bush, Foreign Intelligence Surveillance Court

Timeline Tags: Civil Liberties

DARPA logo.DARPA logo. [Source: Duke University]The computer and technology experts at Ars Technica, a well-regarded Web publication which describes itself as focusing on “the art of technology,” speculate on the technology behind the NSA warrantless wiretapping program recently revealed to the public (see December 15, 2005). The Ars Technica experts believe that Senator Jay Rockefeller (D-WV)‘s 2003 comparison between the program and the Total Information Awareness (TIA) project (see March 2002) is the most apt. They believe that the NSA wiretapping program may be built upon the foundation of a shadowy, highly classified surveillance program called Echelon. They write, “This system’s purpose would be to monitor communications and detect would-be terrorists and plots before they happen… This project is not interested in funding ‘evolutionary’ changes in technology, e.g., bit-step improvements to current data mining and storage techniques. Rather, the amount of data that the directors are anticipating (petabytes!) would require massive leaps in technology (and perhaps also some massive leaps in surveillance laws).” [Ars Technica, 12/20/2005; Ars Technica, 2007] Data storage measured in petabytes is a colossal capacity; a petabyte is 1,024 terabytes, and a single terabyte is 1,024 gigabytes, the usual measurement for hard drive capacity. [TechTerms, 2007] The Ars Technica experts continue, “According to DARPA, such data collection ‘increases information coverage by an order of magnitude,’ and ultimately ‘requires keeping track of individuals and understanding how they fit into models.’” They go on to note that the NSA wiretapping program was instituted shortly after the TIA project was quashed by Congress, and say they believe the NSA program is an extension and an outgrowth of TIA. They note that “the FBI requested the legal authorization to do very high-volume monitoring of digital calls” in 1995, that there is “no way for the judicial system to approve warrants for the number of calls that the FBI wanted to monitor,” and that the FBI “could never hire enough humans to be able to monitor that many calls simultaneously, which means that they’d have to use voice recognition technology to look for ‘hits’ that they could then follow up on with human wiretaps.” The Ars Technica experts believe the NSA is using “some kind of high-volume, automated voice recognition and pattern matching system,” employing a form of “smart filtering” that would weed through perhaps hundreds of thousands of computer-monitored calls and turning a fraction of those calls over to human analysts for evaluation: “[Y]es, this kind of real-time voice recognition, crude semantic parsing and pattern matching is doable with today’s technology, especially when you have a budget like the NSA.” In a follow-up, Ars Technica technology specialist and self-described conservative and “privacy nazi” Jon Stokes writes of his own concerns over the program, noting that the program is too wide-reaching and too blunt to actually catch many real terrorists, and that the program is a tremendous intrusion into Americans’ fundamental privacy: “The problem is not that such large-scale industrial fishing invariably catches a few dolphins along with the tuna, but that between 99.999 and 100 percent of what you’re going to get is dolphin.” Stokes also warns that such an intrusive surveillance program will not only violate privacy rights, but be quite ineffective: “As the TSA, with its strip-searching of people’s elderly grandparents, abundantly proves every holiday season, blunt instruments and scorched earth tactics are of dubious value in catching genuine bad actors. In fact, blunt instruments and wide nets are the easiest for professional bad guys to evade. All you need to beat such surveillance tools is patience and know-how.…Blunt instruments like airport facial recognition software and random subway bag searches produce much more noise than they do signal, and any engineer or computer scientist worth his or her salt will tell you that an intelligent, targeted, low-tech approach beats a brute-force high-tech approach every time. There is no high-tech substitute for human intelligence gathering. In fact…an overload of crudely processed information is actually more likely to lead an analyst astray than it is to produce any useful insight.…In the end, brute force security techniques are not only corrosive to democratic values but they’re also bad for national security. They waste massive resources that could be spent more effectively elsewhere, and they give governments and countries a false sense of security that a savvy enemy can exploit to devastating effect.…[I]t’s not just enough to have sound intelligence; you also need political leaders who have the wisdom to use that intelligence appropriately.” [Ars Technica, 12/20/2005]

Entity Tags: Transportation Safety Administration, Total Information Awareness, Federal Bureau of Investigation, John D. Rockefeller, Defense Advanced Research Projects Agency, Jon Stokes, National Security Agency

Timeline Tags: Civil Liberties

Judge James Robertson.Judge James Robertson. [Source: US Courts.gov]US District Judge James Robertson resigns from the Foreign Intelligence Surveillance Court (FISC), a special, secret court set up to oversee government surveillance operations. Robertson refuses to comment on his resignation from FISC, but two of Robertson’s associates say that Robertson’s resignation stems from his deep concerns that the NSA’s warrantless domestic wiretapping program (see Early 2002) is not legal, and has tainted the work of the court. Robertson, formerly one of ten “revolving” members of FISC who periodically rotate in and out of duty on the court, continues to serve as a Washington, DC district judge. Colleagues of Robertson say that he is concerned that information gained from the warrantless surveillance under Bush’s program subsequently could have been used to obtain warrants under the FISA program, a practice specifically prohibited by the court. Robertson, a Clinton appointee selected for FISC by Chief Justice William Rehnquist, has also been critical of the Bush administration’s treatment of detainees at the Guantanamo Bay prison camp, and recently issued a decision that sidetracked Bush’s use of military tribunals for some Guantanamo detainees (see November 8, 2004). Even though Robertson was hand-picked for FISC by the deeply conservative Rehnquist, who expressly selected judges who took an expansive view of wiretapping and other surveillance programs, [Associated Press, 12/21/2005] some conservative critics such as Jim Kouri, a vice-president of the National Association of Chiefs of Police, call Robertson a “left-leaning, liberal” “Clintonista” jurist with ties to “ultra-liberal” civil rights associations and a desire for media attention (though Robertson has refused to speak to the press about his resignation). Critics also demand that less attention be directed at the NSA wiretapping program and more on finding out who leaked the information that led to the New York Times’s recent revelatory articles on the program (see Early 2002). GOP strategist Mike Baker says in response to Robertson’s resignation, “Only the Democrats make confirmations and appointments of people by Republican President [sic] a question of ideology. The news media try to portray [Robertson] as non-partisan. He’s as liberal as they come and as partisan as they come.” [Men's News, 12/23/2005] Presiding judge Colleen Kollar-Kotelly is arranging for a classified briefing of all the remaining FISC judges on the wiretapping program, partly in order to bring any doubts harbored by other justices into the open. Sources say Kollar-Kotelly expects top NSA and Justice Department officials to outline the program for the judges. No one on FISC except for Kollar-Kotelly and her predecessor, Judge Royce Lambeth, have ever been briefed on the program. If the judges are not satisfied with the information provided in this briefing, they could take action, which could include anything from demanding proof from the Justice Department that previous wiretaps were not tainted, could refuse to issue warrants based on secretly-obtained evidence, or, conceivably, could disband the entire court, especially in light of Bush’s recent suggestions that he has the power to bypass the court if he so desires. [Washington Post, 12/22/2005]

Entity Tags: US Department of Justice, Royce Lambeth, William Rehnquist, National Security Agency, Jim Kouri, Mike Baker, Foreign Intelligence Surveillance Court, George W. Bush, James Robertson, Colleen Kollar-Kotelly

Timeline Tags: Civil Liberties

Chart showing NSA surveillance network.Chart showing NSA surveillance network. [Source: NSA Watch] (click image to enlarge)The National Security Agency has built a far larger database of information collected from warrantless surveillance of telephone and Internet communications to and from US citizens than the NSA or the Bush administration has acknowledged (see October 2001). On December 15, the New York Times exposed the NSA’s program (see December 15, 2005), which was authorized by President Bush in early 2002 (see Early 2002), but which actually began far earlier (see Spring 2001). The NSA built its database with the cooperation of several major American telecommunications firms (see June 26, 2006), and much of the information was mined directly into the US telecommunications system’s major connections. Many law enforcement and judicial officials question the legality of the program (see May 12, 2006 and December 18, 2005), and many say the program goes beyond the bounds of the Foreign Intelligence Surveillance Act (see 1978). One question is whether the FISA Court, or FISC, can authorize monitoring of international communications that pass through US-based telephonic “switches,” which handle much of the US’s electronic communications traffic. “There was a lot of discussion about the switches” in conversations with FISC, says a Justice Department official. “You’re talking about access to such a vast amount of communications, and the question was, How do you minimize something that’s on a switch that’s carrying such large volumes of traffic? The court was very, very concerned about that.” While Bush and his officials have insisted that the warrantless wiretaps only target people with known links to al-Qaeda, they have not acknowledged that NSA technicials have not only eavesdropped on specific conversations between people with no known links to terrorism, but have combed through huge numbers of electronic communications in search of “patterns” that might point to terrorism suspects. Such “pattern analysis” usually requires court warrants before surveillance can begin, but in many cases, no such warrants have been obtained or even requested. Other, similar data-mining operations, such as the Total Information Awareness program, developed by the Defense Department to track terror suspects (see March 2002), and the Department of Homeland Security’s CAPPS program, which screened airline passengers (see (6:20 a.m.-7:48 a.m.) September 11, 2001), were subjected to intense public scrutiny and outrage, and were publicly scrapped. The Bush administration has insisted that it has no intention of scrapping the NSA’s warrantless wiretapping program, because, as its officials have said, it is necessary to identify and track terrorism suspects and foil terrorist plots before they can be hatched. Administration officials say that FISC is not quick enough to respond to its need to respond to potential terrorist acts. A former technology manager at a major telecommunications company says that after 9/11, the leading telecom firms have been storing information on calling patterns and giving it to the federal government to aid in tracking possible terrorists. “All that data is mined with the cooperation of the government and shared with them, and since 9/11, there’s been much more active involvement in that area,” says the former manager. “If they get content, that’s useful to them too, but the real plum is going to be the transaction data and the traffic analysis. Massive amounts of traffic analysis information—who is calling whom, who is in Osama Bin Laden’s circle of family and friends—is used to identify lines of communication that are then given closer scrutiny.” And, according to a government expert on communications privacy who used to work at the NSA, says that in the last few years, the government has quietly encouraged the telecom firms to rout more international traffic through its US-based switches so it can be monitored. Such traffic is not fully addressed by 1970s-era laws that were written before the onset of modern communications technology; neither does FISA adequately address the issues surrounding that technology. Computer engineer Phil Karn, who works for a major West Coast telecom firm, says access to those switches is critical: “If the government is gaining access to the switches like this, what you’re really talking about is the capability of an enormous vacuum operation to sweep up data.” [New York Times, 12/24/2005]

Entity Tags: US Department of Defense, US Department of Justice, Total Information Awareness, New York Times, US Department of Homeland Security, Computer Assisted Passenger Prescreening System, Bush administration (43), Foreign Intelligence Surveillance Act, Foreign Intelligence Surveillance Court, George W. Bush, National Security Agency, Phil Karn

Timeline Tags: Civil Liberties

Suzanne Spaulding, a former counsel for the CIA, the Senate and House intelligence commission, and executive director of the National Terrorism Commission from 1999 through 2000, writes an op-ed criticizing the Bush administration for its domestic surveillance program. She writes that the three main sources of oversight and restraint on Bush’s unfettered efforts to monitor US citizens—Congress, the judiciary, and the American people—have failed to halt what she calls “this extraordinary exercise of presidential power.” Spaulding, who will testify along similar lines before the Senate over a year later (see April 11, 2007), writes, “Ironically, if it is ultimately determined that this domestic surveillance program reflects the exercise of unchecked power in contravention of law, it will wind up weakening the presidency. Once again, we will confront the challenge of restoring Americans’ faith in the rule of law and our system of checks and balances.” The pretense of oversight by the administration, in providing limited and perhaps misleading briefings on the program only to the so-called “Gang of Eight” Congressional leaders, is superficial and ineffective, she writes; the entire process “effectively eliminates the possibility of any careful oversight.” She notes that because of the severe restrictions both in the information doled out to these Congressional leaders, and their strict prohibition on discussing the information with anyone else, even other intelligence panel members, “[i]t is virtually impossible for individual members of Congress, particularly members of the minority party, to take any effective action if they have concerns about what they have heard in one of these briefings. It is not realistic to expect them, working alone, to sort through complex legal issues, conduct the kind of factual investigation required for true oversight and develop an appropriate legislative response.” Congressional oversight is key to retaining the trust of the US citizenry, she writes, and adds that that particular principle was well understood at the CIA while she was there. Oversight “is vital for a secret agency operating in a democracy. True oversight helps clarify the authority under which intelligence professionals operate. And when risky operations are revealed, it is important to have members of Congress reassure the public that they have been overseeing the operation. The briefings reportedly provided on the National Security Agency (NSA) surveillance program reflect, instead, a ‘check the box’ mentality—allowing administration officials to claim that they had informed Congress without having really achieved the objectives of oversight.” While those few members of Congress are given little real information, the judiciary, particularly the Foreign Intelligence Surveillance Court (FISC), is cut out of the process entirely. “Instead of going to a judge on the secret court that was specifically established to authorize foreign intelligence surveillance inside the United States, we are told that an NSA shift supervisor was able to sign off on the warrantless surveillance of Americans,” she writes. “That’s neither a check nor a balance. The primary duty of the NSA shift supervisor, who essentially works for the president, is to collect intelligence. The task of the judge is to ensure that the legal standards set out in the 1978 Foreign Intelligence Surveillance Act (FISA) have been met. Which one has stronger independence to say no, if no needs to be said? The objectives of the surveillance program, as described in news reports, seem laudable. The government should be running to ground the contacts listed in a suspected terrorist’s cell phone, for example. What is troubling is that this domestic spying is being done in apparent contravention of FISA, for reasons that still are not clear.” In her piece she takes issue with the Bush administration’s insistence that its surveillance program is legal and necessary. She makes the following case:
Specious Arguments to Duck FISA Court - The argument that the FISA Court is too slow to respond to immediate needs for domestic surveillance is specious, she says. “FISA anticipates situations in which speed is essential. It allows the government to start eavesdropping without a court order and to keep it going for a maximum of three days. And while the FISA application process is often burdensome in routine cases, it can also move with remarkable speed when necessary, with applications written and approved in just a few hours.” Instead, she says that the Bush administration must have dodged FISC because their wiretaps didn’t meet FISA standards of probable cause. Since FISC is staffed by judges hand-picked by conservative then-Supreme Court Chief Justice William Rehnquist, “who presumably felt that they had the right temperament and expertise to understand the national security imperatives as well as the need to protect civil liberties,” and since FISC has granted all but four of the more than 5,645 requests for wiretaps and surveillance made by the administration since 2001, to argue that FISC is unresponsive is simply wrong-headed. And, she notes, if the administration felt that FISA’s standards were too strict, it could have moved to amend the law to allow more leniency in obtaining such warrants. It has not done so since the passage of the 2001 Patriot Act. She writes, “The administration reportedly did not think it could get an amendment without exposing details of the program. But this is not the first time the intelligence community has needed a change in the law to allow it to undertake sensitive intelligence activities that could not be disclosed. In the past, Congress and the administration have worked together to find a way to accomplish what was needed. It was never previously considered an option to simply decide that finding a legislative solution was too hard and that the executive branch could just ignore the law rather than fix it.”
No Justification for Keeping Program Secret - In addition, the administration has consistently failed to make a case for keeping the domestic wiretapping policy secret for four years. US-designated terrorist groups already know that the government listens to their cell phone conversations whenever possible, and they are well aware of the various publicly known programs to search through millions of electronic communications, such as the NSA’s Echelon program (see April 4, 2001). “So what do the terrorists learn from a general public discussion about the legal authority being relied upon to target their conversations?” she asks. “Presumably very little. What does the American public lose by not having the public discussion? We lose the opportunity to hold our elected leaders accountable for what they do on our behalf.”
Assertions that Program Authorized by Congress Fallacious - The argument advanced by Attorney General Alberto Gonzales that says the program does not violate the law because Congress’s post-9/11 authorization of force against terrorists gives the administration the right to circumvent FISA is equally specious, she argues. “FISA does provide for criminal penalties if surveillance is conducted under color of law ‘except as authorized by statute.’ This is a reference to either FISA or the criminal wiretap statute. A resolution, such as the Use of Force resolution, does not provide statutory authority. Moreover, FISA specifically provides for warrantless surveillance for up to 15 days after a declaration of war. Why would Congress include that provision if a mere Use of Force resolution could render FISA inapplicable? The law clearly states that the criminal wiretap statute and FISA are ‘the exclusive means by which electronic surveillance…and the interception of domestic wire, oral, and electronic communications may be conducted.’ If these authorities are exclusive, there is no other legal authority that can authorize warrantless surveillance. Courts generally will not view such a clear statutory statement as having been overruled by a later congressional action unless there is an equally clear indication that Congress intended to do that.” Therefore, by any legal standard, the administration’s program is, apparently, illegal.
No Inherent Presidential Authority - The ultimate argument by Bush officials, that the president has some sort of inherent authority as commander-in-chief to authorize illegal wiretaps, is the same groundless legal argument recently used to justify the use of torture by US intelligence and law enforcement agents (see December 28, 2001). That argument was withdrawn, Spaulding notes, after it became publicly known. While the courts have not specifically ruled on this particular argument, Spaulding notes that the Supreme Court refused to recognize then-President Harry Truman’s attempt to seize control of the nation’s steel mills to avert a possible strike during the Korean War. The Supreme Court ruled “that the president’s inherent authority is at its weakest in areas where Congress has already legislated. It ruled that to find inherent presidential authority when Congress has explicitly withheld that authority—as it has in FISA—‘is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between president and Congress.’” She notes that in 2004, the Supreme Court rejected the argument for unchecked presidential power in the Hamdi case (see June 28, 2004), with Justice Sandra Day O’Connor writing for the court, “We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation’s citizens. …Whatever power the United States Constitution envisions for the Executive in its exchanges with… enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” Spaulding concludes, “The rule of law and our system of checks and balances are not a source of weakness or a luxury of peace. As O’Connor reminded us in Hamdi, ‘It is during our most challenging and uncertain moments…that we must preserve our commitment at home to the principles for which we fight abroad.’” [Washington Post, 12/25/2005]

Entity Tags: Sandra Day O’Connor, William Rehnquist, USA Patriot Act, Suzanne Spaulding, National Security Agency, US Supreme Court, Harry S. Truman, Alberto R. Gonzales, “Gang of Eight”, National Commission on Terrorism, Central Intelligence Agency, Foreign Intelligence Surveillance Act, Foreign Intelligence Surveillance Court, Echelon, Bush administration (43)

Timeline Tags: Civil Liberties

The Justice Department opens an investigation into the leak of classified information about the Bush domestic surveillance program. The investigation focuses on disclosures to the New York Times about the secret warrantless wiretapping program conducted by the National Security Agency since shortly after the 9/11 attacks (see Early 2002). The White House claims that the Justice Department initiated the investigation on its own after receiving a request from the NSA, and that it was not even informed of the investigation until the decision had already been made. But White House spokesman Trent Duffy hails the investigation, and implicitly accuses the Times of aiding and abetting terrorists by printing its stories. “The leaking of classified information is a serious issue,” Duffy says. “The fact is that al-Qaeda’s playbook is not printed on Page One, and when America’s is, it has serious ramifications.” [Associated Press, 12/30/2005] President Bush fuels the attack on the Times when he says, “The fact that we’re discussing this program is helping the enemy.” [New York Times, 12/30/2005] Many outside of the administration have accused the wiretapping program, which functions without external oversight or court warrants, of being illegal, and Bush of breaking the law by authorizing it. Administration officials insist that Bush has the power to make such a decision, both under the Constitution’s war powers provision and under the post-9/11 Congressional authorization to use military force against terrorism, even though, as former Senate Majority Leader Tom Daschle recalls, Congress explicitly refused to give Bush the authority to take military action inside the US itself (see December 21-22, 2005). And, in a recent letter to the chairs of the House and Senate Intelligence Committees, the White House claimed that the nation’s security needs outweigh the needs of the citizenry to be secure from secret government surveillance. [Associated Press, 12/30/2005] Others disagree. The American Civil Liberties Union’s Anthony Romero says, “President Bush broke the law and lied to the American people when he unilaterally authorized secret wiretaps of US citizens. But rather than focus on this constitutional crisis, Attorney General [Alberto] Gonzales is cracking down on critics of his friend and boss. Our nation is strengthened, not weakened, by those whistle-blowers who are courageous enough to speak out on violations of the law.” And Marc Rotenberg, the executive director of the Electronic Privacy Information Center, says the NSA should be the focus of an investigation to determine if it broke federal surveillance laws. Tom Devine of the Government Accountability Project suggests a middle course. His group does not object to a limited investigation into the leak of classified information, but, he says, if the administration does “a blanket witch hunt, which I fear, it would trample all over good government laws” designed to protect government workers who expose wrongdoing. “The whole reason we have whistle-blower laws is so that government workers can act as the public’s eyes and ears to expose illegality or abuse of power.” [New York Times, 12/30/2005] Ultimately, this leak investigation may not achieve much, according to law professor Carl Tobias. “It doesn’t seem to me that this leak investigation will take on the importance of the Plame case,” Tobias says. “The bigger story here is still the one about domestic spying and whether the president intends, as he said, to continue doing it.” [Washington Post, 12/31/2005]

Entity Tags: Anthony D. Romero, Tom Devine, Trent Duffy, American Civil Liberties Union, Al-Qaeda, Tom Daschle, Senate Intelligence Committee, US Department of Justice, National Security Agency, Carl Tobias, Electronic Privacy Information Center, Alberto R. Gonzales, New York Times, Government Accountability Project, George W. Bush, Marc Rotenberg, House Intelligence Committee

Timeline Tags: Civil Liberties

Retired AT&T technician Mark Klein (see July 7, 2009 and May 2004), angered by the Bush administration’s counterattack against government and media members who have helped to expose its warrantless wiretapping operation (see December 15-31, 2005), decides to go public with a memo he wrote about his own knowledge of the collusion between AT&T and the National Security Agency (NSA) in eavesdropping on American citizens’ communications (see January 16, 2004). He updates the memo with a brief preface, selects eight pages of the 121 pages of AT&T documentation he possesses which he believes gives a good overview of the NSA’s surveillance equipment installation, and includes the two photographs he has taken of the NSA’s “secret room” at the AT&T facility in San Francisco and the Internet research he has done on the Narus STA 6400 equipment the NSA is using to sort the communications being captured and recorded (see Late 2003). Instead of entrusting his newly refurbished memo to the Internet, he uses the PGP (Pretty Good Privacy) security protocol for anticipated dissemination, burns the data onto a CD, and begins searching online for civil liberties groups that might be interested in his work. [Wired News, 5/17/2006; Klein, 2009, pp. 53-55]

Entity Tags: AT&T, National Security Agency, Mark Klein

Timeline Tags: Civil Liberties

Attorney General Alberto Gonzales testifies before the Senate Judiciary Committee that the new “reasonable belief” standard for wiretaps is just another term for “probable cause.” Gonzales’s claim is legally false. The difference between the two standards is significant: while administration officials must present relatively compelling evidence that a US citizen has ties to US-designated terrorist organizations or is involved in terror plots to meet the “probable cause” standard for authorizing electronic surveillance, the “reasonable belief” standard is far more lenient. Gonzales also repeats for the committee President Bush’s claims that the Foreign Intelligence Surveillance Court (FISC) isn’t “agile” or “nimble” enough to assist the Justice Department and the US intelligence community in finding and arresting terrorists, a claim that FISC judges find baffling. FISC routinely approves almost all warrant requests, and FISA allows the government to conduct surveillance for 72 hours before even applying for a warrant. Additionally, FISC has consistently worked with the government to expedite requests and streamline the warrant-issuance procedure. For example, in March 2002, when the FBI and Pakistani police arrested al-Qaeda operative Abu Zubaida, agents found that almost all of Zubaida’s contacts were already being monitored under FISA warrants or through international surveillance efforts (see March 28, 2002). One government official says that the Zubaida discovery gave them “some comfort” that surveillance efforts were working as needed. [Washington Post, 2/9/2006]

Entity Tags: Foreign Intelligence Surveillance Court, Abu Zubaida, Al-Qaeda, Alberto R. Gonzales, US Department of Justice, Senate Judiciary Committee

Timeline Tags: Civil Liberties

Vice President Cheney mentioned NSA intercepts of the 9/11 hijackers’ calls in a speech to the Heritage Foundation.Vice President Cheney mentioned NSA intercepts of the 9/11 hijackers’ calls in a speech to the Heritage Foundation. [Source: David Bohrer / White House]Vice President Dick Cheney uses calls between the 9/11 hijackers in the US and an al-Qaeda communications hub in Yemen that were intercepted by the NSA (see Early 2000-Summer 2001) to justify the NSA’s warrantless wiretapping program (see December 15, 2005). Cheney points out that, “There are no communications more important to the safety of the United States than those related to al-Qaeda that have one end in the United States,” and says that if the NSA’s warrantless program had been implemented before 9/11, “we might have been able to pick up on two hijackers [Nawaf Alhazmi and Khalid Almihdhar] who subsequently flew a jet into the Pentagon.” He adds: “They were in the United States, communicating with al-Qaeda associates overseas. But we did not know they were here plotting until it was too late.” [White House, 1/4/2006] Other administration officials make similar claims about the calls by Almihdhar and Alhazmi in the years after the program is revealed by the New York Times (see December 17, 2005).

Entity Tags: Khalid Almihdhar, Nawaf Alhazmi, Richard (“Dick”) Cheney

Timeline Tags: Complete 911 Timeline, 9/11 Timeline, Civil Liberties

President Bush’s rationale for authorizing warrantless surveillance against US citizens is of questionable legality and “may represent an exercise of presidential power at its lowest ebb,” according to a Congressional analysis. The Congressional Research Service (CRS), the independent and nonpartisan research bureau of the legislature, answers the question raised around the nation since the revelation of the secret program by the New York Times (see Early 2002): did Bush break the law when he ordered the National Security Agency to eavesdrop on US citizens without court orders or judicial oversight? The CRS report does not give a definitive yes or no answer to that question, but finds Bush’s legal rationale dubious at best. That rationale “does not seem to be as well-grounded” as administration lawyers have claimed, and the report finds that, despite assertions to the contrary by Bush and administration officials, Congress did not authorize warrantless wiretaps when it gave the executive branch the authority to wage war against al-Qaeda in the days after the 9/11 attacks. Unsurprisingly, Bush administration officials criticize the report. But some Republicans and Democrats find the report’s conclusions persuasive, and hold up the report as further evidence that Bush overextended his authority by authorizing the wiretaps. For instance, Republican Thomas Kean, the former chairman of the 9/11 commission (see January 27, 2003, says he doubts the program’s legality. Kean, who has not spoken publicly about the program until now, says the 9/11 commission was never told about the program, and he strongly doubts its legality. “We live by a system of checks and balances, and I think we ought to continue to live by a system of checks and balances,” Kean says. [Congressional Research Service, 1/5/2006 pdf file; New York Times, 1/6/2006]

Entity Tags: George W. Bush, 9/11 Commission, Congressional Research Service, New York Times, National Security Agency, Thomas Kean

Timeline Tags: Civil Liberties

John Yoo’s ‘The Powers of War and Peace.’John Yoo’s ‘The Powers of War and Peace.’ [Source: University of Maryland]Libertarian law professor Cass Sunstein reviews a recent book by former Bush legal adviser John Yoo, who authored several of the Bush administration’s most controversial legal opinions concerning terrorism and executive power (see September 21, 2001, September 25, 2001, September 25, 2001, October 4, 2001, October 23, 2001, October 23, 2001, November 2, 2001, November 6-10, 2001, November 15, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24, 2002, January 24-26, 2002, March 13, 2002, April 8, 2002, June 27, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and October 11, 2002). Yoo’s book, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11, is a compendium of his pre-9/11 academic writings that landed him his job at the Justice Department’s Office of Legal Counsel. Sunstein notes that Yoo, perhaps more than any other single legal scholar, has reshaped the government’s legal stance on any number of issues. He argued for the president’s unilateral ability to declare war without the approval of Congress, the use of “enhanced interrogation techniques” on suspected terrorists, the withdrawal of essential civil liberties and legal rights from suspected terrorists and enemy collaborators, the right of the administration to electronically eavesdrop on the American citizenry without judicial consent or oversight, the ability to ignore or withdraw from international treaties without congressional approval, and more besides. Sunstein writes: “[T]aken as a whole, the claims of the Bush administration may be properly regarded as an effort to create a distinctive set of constitutional understandings for the post-September 11 era. The White House is attempting to create a kind of 9/11 Constitution. A defining feature of these understandings is a strong commitment to inherent presidential authority over national security, including a belief that in crucial domains the president can act without congressional permission, and indeed cannot be checked by congressional prohibitions.” Yoo is a key figure in that effort. Sunstein calls his work interesting but completely one-sided, simply ignoring “the mountainous counter-evidence” against most of his constitutional claims. “Yoo’s reading would require us to ignore far too many statements by prominent figures in the founding generation,” Sunstein writes. “There are not many issues on which James Madison, Thomas Jefferson, John Marshall, Alexander Hamilton, George Washington, James Wilson, John Adams, and Pierce Butler can be said to agree. Were all of them wrong?” Sunstein concludes: “[W]ith respect to war, there is no reason for a 9/11 Constitution. The old one, read in the light of our traditions, will do just fine.” [New Republic, 1/9/2006; Savage, 2007, pp. 81-82]

Entity Tags: Bush administration (43), Office of Legal Counsel (DOJ), John C. Yoo, Cass Sunstein

Timeline Tags: Civil Liberties

Russell Tice.Russell Tice. [Source: ABC News]Former National Security Agency (NSA) official Russell Tice says that many of the wiretapping operations he once helped run were illegal. “I specialized in what’s called special access programs,” Tice tells ABC News. “We called them ‘black world’ programs and operations.” Tice is ready to testify before Congress about what he calls the illegal wrongdoings that are part of the Defense Department and the NSA’s wiretapping programs enacted after the 9/11 attacks. Many of these programs were targeted at innocent US citizens. “The mentality was we need to get these guys, and we’re going to do whatever it takes to get them,” he says. The technology used to track and sort through every domestic and international telephone center is impressive. “If you picked the word ‘jihad’ out of a conversation, the technology exists that you focus in on that conversation, and you pull it out of the system for processing.” Intelligence analysts use the information to develop graphs that resemble spiderwebs linking one suspect’s phone number to hundreds or even thousands more. While the president has admitted giving orders that allowed the NSA to eavesdrop on a small number of Americans without warrants, Tice says says the number of Americans subject to eavesdropping by the NSA could be in the millions if the full range of secret NSA programs is used. “That would mean for most Americans that if they conducted, or you know, placed an overseas communication, more than likely they were sucked into that vacuum.” Tice has been subjected to what appears to be bureaucratic punishment for his willingness to blow the whistle on the nation’s warrantless wiretapping programs; last year the NSA revoked his security clearance based on what it calls "psychological concerns," and later fired him. Tice says that is the way the NSA often deals with employees it considers troublemakers and whistleblowers (see January 25-26, 2006). [ABC News, 1/10/2006; ABC, 1/10/2006]

Entity Tags: US Department of Defense, National Security Agency, Russell Tice

Timeline Tags: Civil Liberties

Radical London imam Abu Hamza al-Masri is put on trial in Britain. Before the jury was sworn in, the defense had tried to have the case dismissed on the grounds that Abu Hamza’s notoriety was such that no jury could possibly approach the evidently impartially. However, these arguments were dismissed by the judge, Sir Anthony Hughes.
Charges of Murder, Racial Incitement - The charges include nine counts of soliciting to murder; three for encouraging followers to murder Jews, and six for encouraging them to murder “a person or persons that did not believe in the Islamic faith.” Four other counts are for using “threatening, abusive, or insulting words or behavior with intent to stir up racial hatred.” These charges are based on videos confiscated from Abu Hamza in which, according to authors Sean O’Neill and Daniel McGrory, he rages “against the decadent West, the treacherousness of Jews, the waywardness of women, the accursedness of homosexuals, the corruption of Muslim rulers, and the idleness of ordinary Muslims who had not yet gone to wage war for Allah.” The other two charges deal with his possession of the tapes themselves, and of an 11-volume encyclopedia of jihad.
Encyclopaedia of Jihad - The charge sheet describes the encyclopedia as “a document which contained information of a kind likely to be useful to a person committing or preparing an act of terrorism,” and the prosecutor describes it as “a manual, a blueprint for terrorism.… It contains anything anyone would ever need to know if they wanted to make home-made bombs or explosives.”
Disapproval of Court - Abu Hamza demonstrates his disapproval of the court in two ways: when he takes the witness stand he swears a secular oath, refusing to use the Koran in an infidel court; and he also refuses to stand at the end of each day as the judge departs. Even if he were to be acquitted, he would probably not be released, as deportation proceedings to the US have only been suspended because of the trial. An acquittal would also lead to renewed attempts by the British government to strip him of his British citizenship.
Koran Defense - Abu Hamza’s defense is that he was merely interpreting certain verses from the Koran, which, according to his lawyer, contains “the language of blood and retribution.” He alleges that simply reminding his listeners of these verses cannot be incitement to murder, and that his statements should be viewed against the context of events in the 1990s, when Muslim were under pressure in Kosovo, Kashmir, and Palestine.
Hamza's Testimony - Abu Hamza himself is put on the witness stand for five days from January 19, but, according to authors Sean O’Neill and Daniel McGrory, he treats it “as if it were a pulpit,” reciting Koranic verses and trying to dictate the direction of the discussion. Some of the things he says are damaging to him, for example he thinks the Jews control the media and banks, as well as having a hold over Western political leaders. He admits running a newsletter for Algerian radicals and being in constant telephone contact with their leaders (see Before October 1997), but claims he never actually read the encyclopedia of jihad because he is not a military man. He also says he had no idea that tapes of his sermons were being sold around Britain, nor can he recall the places he has preached up and down the country. He was an informer for MI5 and Special Branch (see Early 1997) and told them about his preaching. They said it was okay, so he simply carried on with it.
Hamza Convicted - He is convicted on 11 counts and acquitted on four, three of soliciting to murder, and one of inciting racial hatred. He gets seven years’ imprisonment for each of the six counts of soliciting murder, 21 months each for the three charges of inciting racial hatred, three years for possessing the tapes, and three and a half years for possessing the encyclopaedia. However, these sentences will run concurrently, meaning he will only be in jail for seven years. US authorities say that after he is released they may request his extradition to the US for crimes he is wanted for there (see May 27, 2004). [O'Neill and McGrory, 2006, pp. 168-169, 296-313]

Entity Tags: Daniel McGrory, Abu Hamza al-Masri, Anthony Hughes, Sean O’Neill

Timeline Tags: Complete 911 Timeline

The American Civil Liberties Union releases documents detailing prisoner abuse at US facilities in Iraq, Afghanistan, and Guantanamo. The documents prove the existence of a “Special Access Program,” involving a special operations unit, Task Force 6-26, that has been implicated in numerous abuse incidents in Iraq, and whose operatives used fake names to thwart an Army investigation. ACLU lawyer Amrit Singh says: “These documents confirm that the torture of detainees and its subsequent cover-up was part of a larger clandestine operation, in all likelihood, authorized by senior government officials. Despite mounting evidence of systemic abuse authorized or endorsed from above, however, not a single high-level official has thus far been brought to justice.”
Fake Names, Computer Malfunctions Avoid Accountability - An Army memorandum shows that a prisoner was captured by Task Force 6-26 in Tikrit, Iraq, and subsequently beaten into unconsciousness. The task force members used “fake names,” according to the Army memo, and the claim of a computer malfunction to avoid accountability.
SERE Techniques Used - A heavily redacted memo refers to the use of “Survival, Evasion, Resistance, and Escape” procedures at Guantanamo (see December 10, 2002). Sworn statements from military interrogators and a written “Chronology of Guard/Detainee Issues” show that the Army began receiving reports of prisoner abuse from Afghanistan as early as January 2002. The abuse continued, the documents show, through 2004 and perhaps beyond (see February 12-16, 2004, March 28, 2004, and May 6, 2004). Documents detail incidents where US soldiers poured peroxide and water over an Iraqi prisoner’s open wounds, and fired slingshot missiles at Iraqi children attempting to steal food from the base. [American Civil Liberties Union, 1/12/2006]

Entity Tags: Amrit Singh, American Civil Liberties Union, US Department of the Army

Timeline Tags: Torture of US Captives

Al Gore speaks to the Liberty Coalition and the American Constitution Society.Al Gore speaks to the Liberty Coalition and the American Constitution Society. [Source: American Constitution Society]Former Vice President Al Gore delivers a long, impassioned speech on civil liberties and constitutional issues to the Liberty Coalition and the American Constitution Society. Gore joins former Representative Bob Barr (R-GA) in speaking out against the Bush administration’s infringement on American civil liberties. Gore and Barr have what Gore calls a “shared concern that America’s Constitution is in grave danger.”
Patently Illegal Domestic Surveillance - Gore’s speech is sparked by recent revelations that the NSA has been spying on American citizens for years (see December 15, 2005), and in response, the administration “has brazenly declared that it has the unilateral right to continue without regard to the established law enacted by Congress precisely to prevent such abuses.” As the Foreign Intelligence and Surveillance Act (FISA) is perfectly sufficient, there was no need for the Bush administration to circumvent that law. “At present, we still have much to learn about the NSA’s domestic surveillance,” Gore says. “What we do know about this pervasive wiretapping virtually compels the conclusion that the president of the United States has been breaking the law, repeatedly and insistently. A president who breaks the law is a threat to the very structure of our government.” Gore says he agrees with Bush on the threat of terrorism, but disagrees that the US has to “break the law or sacrifice our system of government” to protect itself, as this will make it “weaker and more vulnerable.” In addition, he says, “once violated, the rule of law is itself in danger,” and, “Unless stopped, lawlessness grows, the greater the power of the executive grows, the more difficult it becomes for the other branches to perform their constitutional roles.” It is patently obvious that the Bush administration has broken the law in conducting and approving its warrantless wiretaps, Gore says, regardless of what arguments and defenses administration officials may put forth (see September 12-18, 2001 and Early 2002). So, Gore says, “When President Bush failed to convince Congress to give him the power he wanted when this measure was passed, he secretly assumed that power anyway, as if Congressional authorization was a useless bother. But as [Supreme Court] Justice [Felix] Frankfurter once wrote, ‘To find authority so explicitly withheld is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between the president and the Congress.‘… And the disrespect embodied in these apparent mass violations of the law is part of a larger pattern of seeming indifference to the Constitution that is deeply troubling to millions of Americans in both political parties.”
Illegal Seizure of American Citizens - Gore notes that Bush has declared that he has “a heretofore unrecognized inherent power to seize and imprison any American citizen that he alone determines to be a threat to our nation, and that notwithstanding his American citizenship that person in prison has no right to talk with a lawyer, even if he wants to argue that the president or his appointees have made a mistake and imprisoned the wrong person” (see November 13, 2001 and March 5, 2002). He says: “The president claims that he can imprison that American citizen—any American citizen he chooses—indefinitely, for the rest of his life, without even an arrest warrant, without notifying them of what charges have been filed against them, without even informing their families that they have been imprisoned.” Gore then says: “No such right exists in the America that you and I know and love. It is foreign to our Constitution. It must be rejected.”
Specious Authority to Torture - Neither does the executive branch have the right to authorize torture, Gore says. After citing horrific examples from Guantanamo and Abu Ghraib, he calls it “a shameful exercise of power that overturns a set of principles that you’re nation has observed since General George Washington first enunciated them during our Revolutionary War. They have been observed by every president since then until now. They violate the Geneva Conventions, the International Convention Against Torture, and our own laws against torture.”
Unlawful Kidnapping of Foreign Citizens - The president has no right to have foreign citizens kidnapped from their homes and brought to the US for interrogation and imprisonment, or worse, delivered to other nations for harsh interrogations and torture, says Gore. The closest allies of the US have been shocked by such claims.
No Restraint in the Constitution? - Gore asks whether the president really has such powers under the Constitution and, if so, “are there any acts that can on their face be prohibited?” He quotes the dean of Yale’s law school, Harold Koh, who said, “If the president has commander in chief power to commit torture, he has the power to commit genocide, to sanction slavery, to promote apartheid, to license summary execution.” Gore is “deeply troubl[ed]” that “our normal American safeguards have thus far failed to contain this unprecedented expansion of executive power.” He cites the numerous usage of “signing statements” by Bush that signal his intent “not to comply” with particular legislation (see December 30, 2005). When the Supreme Court struck down Bush’s indefinite detention of “enemy combatants” (see June 28, 2004), “the president then engaged in legal maneuvers designed to prevent the court from providing any meaningful content to the rights of the citizens affected.”
Historical Cycles - Since the founding of America, Gore says, the country has abrogated its citizens’ rights in one circumstance or another, and cites numerous examples. But those abrogations were always rectified to some degree in a repeated cycle of what he calls “excess and regret.” Gore is worried that the country may not be in such a cycle now. Instead, he says, the US may be on a path to permanent, state-sanctioned authoritarianism, with the constitutional safeguards American citizens have come to expect eroded and undermined to the point of irretrievability. Gore specifically cites the administration’s support for the so-called “unitary executive” theory of government, which he says “ought to be more accurately described as the unilateral executive.” That theory “threatens to expand the president’s powers until the contours of the Constitution that the framers actually gave us become obliterated beyond all recognition.”
Stark Authoritarianism - Why are Bush and his top officials doing this? Gore says that “[t]he common denominator seems to be based on an instinct to intimidate and control. The same pattern has characterized the effort to silence dissenting views within the executive branch, to censor information that may be inconsistent with its stated ideological goals, and to demand conformity from all executive branch employees.” Gore continues: “Intellectually, it is possible to carry on this process for an indefinite time. The only check on it is that, sooner or later, a false belief bumps up against solid reality, usually on a battlefield. Two thousand two hundred American soldiers have lost their lives as this false belief bumped into a solid reality.”
Gutting Congress - Though serious damage has been done to the judicial branch, Gore acknowledges, “the most serious damage in our constitutional framework has been to the legislative branch. The sharp decline of Congressional power and autonomy in recent years has been almost as shocking as the efforts by the executive to attain this massive expansion of its power.… [T]he legislative branch of government as a whole, under its current leadership, now operates as if it were entirely subservient to the executive branch.… [T]he whole process is largely controlled by the incumbent president and his political organization” (see February 1, 2004). Gore says each member of Congress, Republican and Democrat, must “uphold your oath of office and defend the Constitution. Stop going along to get along. Start acting like the independent and co-equal branch of American government that you are supposed to be under the Constitution of our country.”
We the People - The American people still, for the moment, have the power to enforce the Constitution, Gore says, quoting former President Dwight Eisenhower, who said, “Any who act as if freedom’s defenses are to be found in suppression and suspicion and fear confess a doctrine that is alien to America.” Gore continues: “Fear drives out reason. Fear suppresses the politics of discourse and opens the door to the politics of destruction.… The founders of our country faced dire threats. If they failed in their endeavors, they would have been hung as traitors. The very existence of our country was at risk. Yet in the teeth of those dangers, they insisted on establishing the full Bill of Rights. Is our Congress today in more danger than were their predecessors when the British army was marching on the Capitol? Is the world more dangerous than when we faced an ideological enemy with tens of thousands of nuclear missiles ready to be launched on a moment’s notice to completely annihilate the country?” [Congressional Quarterly, 1/16/2006; American Constitutional Society, 1/16/2006]

Entity Tags: National Security Agency, Liberty Coalition, US Supreme Court, Harold Koh, George W. Bush, Albert Arnold (“Al”) Gore, Jr., American Constitution Society, Bush administration (43), Convention Against Torture, Felix Frankfurter, George Washington, Geneva Conventions, Foreign Intelligence Surveillance Act, Robert “Bob” Barr

Timeline Tags: Civil Liberties

Journalist and columnist Joshua Micah Marshall says of former Vice President Al Gore’s speech on civil liberties the previous day (see January 16, 2006): “The point Gore makes in his speech that I think is most key is the connection between authoritarianism, official secrecy, and incompetence. The president’s critics are always accusing him of law-breaking or unconstitutional acts and then also berating the incompetence of his governance. And it’s often treated as, well… he’s power-hungry and incompetent to boot! Imagine that! The point though is that they are directly connected. Authoritarianism and secrecy breed incompetence; the two feed on each other. It’s a vicious cycle. Governments with authoritarian tendencies point to what is in fact their own incompetence as the rationale for giving them yet more power.… The basic structure of our Republic really is in danger from a president who militantly insists that he is above the law.” [Dean, 2006, pp. 170-171; Talking Points Memo, 1/17/2006]

Entity Tags: Albert Arnold (“Al”) Gore, Jr., George W. Bush, Joshua Micah Marshall

Timeline Tags: Civil Liberties

A memo from the nonpartisan Congressional Research Service (CRS) finds that President Bush appears to be in violation of the National Security Act of 1947 in his practice of briefing only select members of Congress on the National Security Agency’s warrantless wiretapping program. Bush has provided only limited briefings to the so-called “Gang of Eight,” the four Congressional leaders and the four ranking members of the House and Senate Intelligence Committees. But the 1947 law requires the US intelligence community to brief the full membership of both committees on the program. The memo is the result of a request by Representative Jane Harman (D-CA), who wrote Bush a letter saying that she believes he is required under the Act to brief both committees, and not just the Gang of Eight (see January 4, 2006). The White House claims that it has briefed Congressional leaders about the program over a dozen times, but refuses to provide details; the Congressional members so briefed are forbidden by law to discuss the content or nature of those classified briefings, even with their own staff members. “We believe that Congress was appropriately briefed,” says White House spokeswoman Dana Perino. The CRS agrees with Harman that the single exception to such full briefings under the law, covert actions taken under extraordinary threats to national security, is not applicable in this instance. Unless the White House contends the program is a covert action, the memo says, “limiting congressional notification of the NSA program to the Gang of Eight…would appear to be inconsistent with the law.” [US House of Representatives, 1/4/2006; Congressional Research Service, 1/18/2006 pdf file; Washington Post, 1/19/2006] The day after the CRS memo is released, Senate Democrats John D. Rockefeller (D-WV) and Harry Reid (D-NV), along with House Minority Leader Nancy Pelosi (D-CA) and Harman, the ranking member of the House Intelligence Committee, write to Vice President Dick Cheney demanding that the full committees be briefed on such intelligence matters in the future. [Washington Post, 1/20/2006] On February 9, Bush will allow Attorney General Alberto Gonzales and former NSA chief Michael Hayden to brief the full House Intelligence Committee on the program (see February 8-17, 2006).

Entity Tags: Jane Harman, John D. Rockefeller, National Security Agency, National Security Act, Richard (“Dick”) Cheney, Michael Hayden, House Intelligence Committee, George W. Bush, Dana Perino, “Gang of Eight”, Alberto R. Gonzales, Harry Reid, Congressional Research Service, Bush administration (43)

Timeline Tags: Civil Liberties

The Justice Department (DOJ) issues a 42-page “white paper” detailing its arguments that the National Security Agency’s warrantless wiretapping program (see February 2001, Spring 2001, After September 11, 2001, After September 11, 2001, October 2001, Early 2002, September 2002, Late 2003-Early 2004, April 19-20, 2004, June 9, 2005, June 9, 2005, December 15, 2005, December 17, 2005, December 19, 2005, December 24, 2005, January 5, 2006, January 18, 2006, January 18, 2006, January 23, 2006, and January 30, 2006) is legal. The DOJ reiterates two previous arguments (see December 19, 2005 and December 21-22, 2005)—that Congress implicitly authorized the program in 2001 when it authorized the Bush administration to begin military actions against al-Qaeda (see September 14-18, 2001), and that the president has the authority as commander in chief to conduct such a program—even though these arguments have been thoroughly refuted (see January 9, 2006) and overridden by the Supreme Court’s recent Hamdan v. Rumsfeld ruling (see December 15, 2005 and July 8, 2006). In its paper, the DOJ declares that if necessary, it will attack the legality of the Foreign Intelligence Surveillance Act (FISA) in order to stop that law from “imped[ing]” the president’s power to order domestic surveillance. In essence, according to columnist and civil liberties lawyer Glenn Greenwald, the DOJ is asserting that the president’s powers are limitless as long as he or she declares a given action necessary to battle terrorism. “Because the president has determined that the NSA activities are necessary to the defense of the United States from a subsequent terrorist attack in the armed conflict with al-Qaeda, FISA would impermissibly interfere with the president’s most solemn constitutional obligation—to defend the United States against foreign attack,” the DOJ claims. Neither Congress nor the court system has the right to limit or even review the president’s powers, according to the DOJ. Greenwald calls the DOJ’s argument “a naked theory of limitless presidential power.” In fact, Greenwald argues, the DOJ is asserting that FISA itself is unconstitutional, because no law can in any way limit the president’s power to conduct foreign policy or protect the nation’s security. The document is part of a larger Bush administration defense of the USA Patriot Act, and part of the administration’s push to convince Congress to reauthorize that legislation. Attorney General Alberto Gonzales sends the document to Congress. Justice Department official Steven Bradbury says, “When it comes to responding to external threats to the country… the government would like to have a single executive who could act nimbly and agilely.” [US Department of Justice, 1/19/2006 pdf file; Glenn Greenwald, 1/20/2006; Washington Post, 1/20/2006]
Dubious Legality - The program has already been found to be of questionable legality by two reports recently released by the nonpartisan Congressional Research Service (see January 5, 2006 and January 18, 2006). And author James Bamford, a US intelligence expert who has written extensively about the NSA, says that the Justice Department’s arguments are specious in light of Congress’s clear intent in its 1978 passage of FISA to block warrantless wiretapping, and its demonstrated lack of intent to allow any such operations within US borders in the October 2001 legislation. “You could review the entire legislative history in the authorization to use military force and I guarantee you won’t find one word about electronic surveillance,” he says. “If you review the legislative history of FISA, you will find Attorney General Griffin Bell testifying before the intelligence committee saying this was specifically passed to prevent a president from claiming inherent presidential powers to do this again.” [Washington Post, 1/20/2006]
Self-Contradictory Justifications - In 2007, author and reporter Charlie Savage will write of the “shaky foundation” supporting the administration’s “two-pronged attacks on critics of the wiretapping program and the Patriot Act,” which some officials have claimed authorizes the program. “Beneath the simplistic rhetoric, the administration’s position was self-contradicting,” Savage will write. If Bush has the inherent presidential authority to order warrantless wiretapping, then he needs no authorization from the Patriot Act or any other legislation. But if Congress is endangering the nation by delaying in reauthorizing the Patriot Act and thusly not rendering the program legal, then the wiretapping program is illegal after all. The memo attempts to “paper… over” this problem by claiming that, while Bush has the inherent authority to do whatever he feels is necessary to protect the country, the Patriot Act’s extra police powers are still necessary in “contexts unrelated to terrorism.” Savage will write, “In other words, the administration’s own position, hidden in the fine print, was that the Patriot Act was superfluous and irrelevant to the war on terrorism—a somewhat absurd stance made necessary by their desire to say the wiretapping program was legal.” [Savage, 2007, pp. 315]
Failure to Address Probable Beginning of Program Before Attacks - The Justice Department says nothing about the program apparently beginning well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002).

Entity Tags: National Security Agency, James Bamford, Steven Bradbury, US Department of Justice, Griffin Bell, Senate Judiciary Committee, Glenn Greenwald, Foreign Intelligence Surveillance Act, Alberto R. Gonzales, Arlen Specter, George W. Bush, Congressional Research Service, Charlie Savage

Timeline Tags: Civil Liberties

President Bush’s top political adviser, deputy White House chief of staff Karl Rove, tells a meeting of the Republican National Committee that the warrantless wiretapping controversy (see December 15, 2005 and December 18, 2005) can be used to boost Republicans’ election chances in the 2006 midterm elections. Republicans should emphasize that the wiretapping proves that Bush is willing to do whatever it takes to defeat terrorism and keep Americans safe. Critics of the program, therefore, can be painted as weak on terrorism. “The United States faces a ruthless enemy, and we need a commander in chief and a Congress who understand the nature of the threat and the gravity of the moment America finds itself in,” Rove says. “President Bush and the Republican Party do; unfortunately, the same cannot be said of many Democrats.… Let me be clear as I can be: President Bush believes if al-Qaeda is calling somebody in America, it is in our national security interests to know who they’re calling and why. Some important Democrats clearly disagree.” [WIS-TV, 1/20/2006; Savage, 2007, pp. 203]

Entity Tags: George W. Bush, Democratic Party, Republican Party, Republican National Committee, Karl C. Rove

Timeline Tags: Civil Liberties

In a public speech, former National Security Agency chief Michael Hayden claims that everything the NSA does is with authorization from the White House, specifically the warrantless wiretapping program that spies on US citizens (see Early 2002). “I didn’t craft the authorization,” he says. “I am responding to a lawful order.” Hayden claims that while the NSA continues to use court warrants from the Foreign Intelligence Surveillance Court (FISC), technological advances and terrorist threats have made the law that created and supports FISC, the Foreign Intelligence Surveillance Act of 1978 (see 1978), obsolete. Therefore, the NSA has carried out domestic surveillance operations with or without FISC warrants. Hayden says the warrantless surveillance operations are “operationally more relevant, operationally more effective” than anything FISA can handle. Hayden repeatedly denies, in the face of reams of evidence collected by journalists and others to the contrary, that the NSA is spying on domestic antiwar groups and religious organizations like the Quakers who publicly advocate nonviolence and peace. [Michael Hayden, 1/23/2006]

Entity Tags: Foreign Intelligence Surveillance Court, Al-Qaeda, Foreign Intelligence Surveillance Act, Religious Society of Friends (Quakers), Terrorist Surveillance Program, National Press Club, Bush administration (43), National Security Agency, Michael Hayden, George W. Bush

Timeline Tags: Civil Liberties

President Bush at the National Security Agency.President Bush at the National Security Agency. [Source: Eric Draper / White House]President George Bush uses calls between the 9/11 hijackers in the US and an al-Qaeda communications hub in Yemen that were intercepted by the NSA (see Early 2000-Summer 2001) to justify the NSA’s warrantless wiretapping program (see December 15, 2005). Bush says: “We know that two of the hijackers who struck the Pentagon [Nawaf Alhazmi and Khalid Almihdhar] were inside the United States communicating with al-Qaeda operatives overseas. But we didn’t realize they were here plotting the attack until it was too late.” Bush also quotes former NSA Director Michael Hayden, who previously said, “Had this program been in effect prior to 9/11… we would have detected some of the 9/11 al-Qaeda operatives in the United States, and we would have identified them as such” (see January 23, 2006). Bush and other administration officials make similar claims about the calls by Almihdhar and Alhazmi in the years after the program is revealed by the New York Times (see December 17, 2005). [White House, 1/25/2006] Bush made similar remarks at Kansas State University two days previously. [White House, 1/23/2006]

Entity Tags: Khalid Almihdhar, Nawaf Alhazmi, George W. Bush

Timeline Tags: Complete 911 Timeline, 9/11 Timeline, Civil Liberties

Washington Post reporter William Arkin reveals that the National Security Agency (NSA) is “building a new warning hub and data warehouse” in Aurora, Colorado, just outside of Denver, on the grounds of Buckley Air Force Base. The agency is transferring many key personnel from its Fort Meade, Maryland, headquarters to Aurora. Arkin calls the new NSA facility, named the Aerospace Data Facility (ADF), “massive,” and says he believes it is the hub of the NSA’s data mining operation (see January 16, 2004). According to Government Executive magazine, the NSA’s new data storage facility “will be able to hold the electronic equivalent of the Library of Congress every two days.” While the NSA explains that the new facility is a cost-cutting measure and part of the agency’s post-9/11 decentralization—“This strategy better aligns support to national decision makers and combatant commanders,” an NSA spokesman tells one reporter—Arkin says that the “NSA is aligning its growing domestic eavesdropping operations—what the administration calls ‘terrorist warning’ in its current PR campaign—with military homeland defense organizations, as well as the CIA’s new domestic operations [in] Colorado.… Colorado is now the American epicenter for national domestic spying.” Arkin notes that previous news reports have said that the CIA is planning to move much of its domestic National Resources Division to Aurora as well. He also notes that Colorado is the home of the US military’s Northern Command (NORTHCOM), the military arm responsible for homeland defense. The move also allows the NSA to better coordinate its efforts with private contractors such as Lockheed Martin, Northrup Grumman Mission Systems, and Raytheon, all of which have presences in Colorado. Arkin names all three firms as partners with the NSA in building the ADF. Former senior AT&T technician Mark Klein (see July 7, 2009 and May 2004) will later write, “Over months and years, the database would be huge, ready for data mining whenever the government wants to go after someone.” [Washington Post, 1/31/2006; Klein, 2009, pp. 40-41]

Entity Tags: National Security Agency, Aerospace Data Facility, Government Executive Magazine, Mark Klein, Northrup Grumman Mission Systems, William Arkin, Lockheed Martin Corporation, Raytheon, US Northern Command

Timeline Tags: Civil Liberties

Electronic Frontier Foundation logo.Electronic Frontier Foundation logo. [Source: Flickr.com]The Electronic Frontier Foundation (EFF), a civil liberties and privacy-advocacy organization, files a lawsuit against telecommunications giant AT&T for allegedly violating the law and the privacy of its citizens by cooperating with the National Security Agency in the NSA’s construction of what the EFF calls a “massive, illegal program to wiretap and data-mine Americans’ communications.” EFF lawyer Kevin Bankston says: “Our goal is to go after the people who are making the government’s illegal surveillance possible. They could not do what they are doing without the help of companies like AT&T. We want to make it clear to AT&T that it is not in their legal or economic interests to violate the law whenever the president asks them to.”
Unprecedented Access to Communications System - EFF alleges that as part of the NSA’s domestic spying program, AT&T has allowed the NSA direct access to the phone and Internet communications passing over its network, and has given the government “unfettered access to its over 300 terabyte ‘Daytona’ database of caller information—one of the largest databases in the world.” One of AT&T’s databases, nicknamed “Hawkeye,” contains 312 terabytes of data detailing nearly every telephone communication on AT&T’s domestic network since 2001, the lawsuit alleges. The suit goes on to claim that AT&T allowed the NSA to use the company’s powerful Daytona database management software to quickly search this and other communication databases. AT&T, the suit claims, is in violation of the First and Fourth Amendments, federal wiretapping statutes, telecommunications laws, and the Electronic Communications Privacy Act. The suit requests fines up to $22,000 for each AT&T customer, and punitive fines—damages that could potentially reach into the billions of dollars. The EFF lawsuit is one of over 30 lawsuits filed for similar reasons (see June 26, 2006). The lawsuit will survive a number of initial legal challenges by the Justice Department and AT&T, including AT&T’s contention that “whatever we did, the government told us to do” and therefore it should be immune from such lawsuits, and the Justice Department’s invocation of “national security” and the possibility of the revelation of “state secrets” (see March 9, 1953). EFF retorts, “In this country we follow the law, we don’t just follow orders.” Bankston tells a reporter, “If state secrecy can prevent us from preserving the rights of millions upon millions of people, then there is a profound problem with the law.”
Suit Alleges Criminal Actions, Does Not Challenge Government's Right to Wiretap - The lawsuit does not challenge the government’s right to electronically monitor legitimate terrorism suspects, nor does it challenge the judicial right to issue warrants for such surveillance. Rather, EFF writes: “Wiretaps on terrorists are allowed under the law, and this lawsuit is not challenging the wiretap laws. We have sued AT&T for breaking those laws—the telecommunications giant gave the government access to its communications switches and its huge databases of information on millions of ordinary Americans. These are AT&T customers who have not even been accused of affiliations with terrorists. Americans can be both safe and free: if the government truly believes it has cause to wiretap a suspect, it can order AT&T to provide information under FISA [the Foreign Intelligence Surveillance Act]—for up to 72 hours before going to the court. But AT&T has no business providing direct access to the communications of millions of ordinary Americans, without the checks and balances of Congress or the courts.” [Electronic Frontier Foundation, 1/31/2006; Wired News, 1/31/2006]

Entity Tags: Electronic Frontier Foundation, Foreign Intelligence Surveillance Act, National Security Agency, AT&T, US Department of Justice, Kevin Bankston

Timeline Tags: Civil Liberties

Retired AT&T technician Mark Klein (see December 15-31, 2005 and July 7, 2009), working with a civil liberties group and a reporter to expose the collusion of AT&T and the National Security Agency in pushing the government’s illegal surveillance program (see Early January 2006 and January 23, 2006 and After), contacts the office of Senator Dianne Feinstein (D-CA) at the advice of Electronic Frontier Foundation lawyer Kevin Bankston. Klein talks to Feinstein’s chief attorney in Washington, DC, Steven Cash. Klein will later write: “I instinctively recoiled at the thought of trying to approach her as my memory of her record told me she was no friend of civil liberties, though she plays one on TV. My instinct was not wrong.” After an initial discussion with Cash, Klein emails him his packet of documentation (see December 31, 2005). On the afternoon of February 3, Cash calls Klein and says he is very interested in his story, though Feinstein’s staff rates the probability of the NSA performing illegal acts at somewhere around “50-50,” according to Klein. Cash promises to get back in touch with Klein on February 6, but fails to do so. Neither Klein nor his attorneys (see Early January 2006) are able to talk to anyone on Feinstein’s staff from here on. Klein later writes: “The silent message was unmistakable: the senator did not want to sully her political skirts by having contact with a whistleblower. And this was a foretaste of her behavior and voting for the next two and a half years. At every turn, she was there pushing for immunity for the telecom companies in the Senate Intelligence and Judiciary Committees; peddling her toothless restatement of the ‘exclusive means’ clause of FISA [the Foreign Intelligence Surveillance Act—see 1978] as a substitute for any confrontation with the president over ongoing illegal NSA spying; ushering former NSA Director Michael Hayden through his nomination for CIA director; and backing Michael Mukasey as a clone replacement for the resigning Attorney General [Alberto] Gonzales. Moreover, this ultimately turned out to be the attitude of virtually the entire Democratic Party leadership, not to mention the Republicans.” Klein will explain that FISA’s “exclusive means” clause states that FISA should be the “exclusive means” for the federal government to conduct surveillance. Congress’s duty under the law was, Klein will state, to enforce the law against President Bush, “who openly flouted the law.” Instead, Klein will claim, Feinstein uses the “exclusive means” clause to protect the Bush administration and the telecom firms. [Klein, 2009, pp. 57-60]

Entity Tags: Electronic Frontier Foundation, AT&T, Dianne Feinstein, Mark Klein, National Security Agency, Steven Cash, Kevin Bankston

Timeline Tags: Civil Liberties

The Justice Department’s Office of Professional Responsibility (OPR) opens an internal investigation into the department’s role in approving the Bush administration’s domestic warrantless wiretapping program. OPR counsel Marshall Jarrett informs Representative Maurice Hinchey (D-NY) of the investigation into the program, initiated after the 9/11 attacks by the National Security Agency and authorized via a secret executive order from President Bush shortly thereafter (see Early 2002). Jarrett writes that the OPR probe will include “whether such activities are permissible under existing law.” Justice Department spokeswoman Tasia Scolinos says the inquiry will be quite limited: “They will not be making a determination on the lawfulness of the NSA program but rather will determine whether the department lawyers complied with their professional obligations in connection with that program.” Scolinos calls the OPR probe “routine.” Hinchey says he welcomes the probe, which may determine “how President Bush went about creating this Big Brother program.” [Washington Post, 2/16/2006] The OPR inquiry is derailed after the NSA, with Bush’s authorization, refuses to give routine security clearances to OPR lawyers that would allow them to examine the relevant documents (see May 9, 2006).

Entity Tags: US Department of Justice, Tasia Scolinos, H. Marshall Jarrett, National Security Agency, George W. Bush, Bush administration (43), Maurice Hinchey, Office of Professional Responsibility

Timeline Tags: Civil Liberties

Jaber Elbaneh.Jaber Elbaneh. [Source: Yahya Arhab / EPA / Corbi]Twenty-three suspected al-Qaeda operatives break out of a high-security prison in the Yemeni capital of Sana’a. Escapees include Jamal al-Badawi, wanted for a role in the bombing of the USS Cole (see October 12, 2000), and Jaber Elbaneh, a US citizen believed to be linked to the alleged al-Qaeda sleeper cell in Lackawanna, New York (see April-August 2001). The men allegedly tunnel their way from the prison to the bathroom of a neighboring mosque. However, the New York Times will later comment: “[T]hat account is viewed with great skepticism, both in the United States and in Yemen. Many in Yemen say the escape could not have taken place without assistance, whether from corrupt guards or through a higher-level plan.” [New York Times, 3/1/2008] The prison is located in the basement of the Political Security Organization (PSO), Yemen’s equivalent of the FBI. Several days later, a cable sent from the US embassy in Yemen notes “the lack of obvious security measures on the streets,” and concludes, “One thing is certain: PSO insiders must have been involved.” Newsweek comments: “[P]rivately, US officials say the plotters must have had serious—possibly high-level—help at the Political [Security Organization].…. [T]he head of the PSO, Ali Mutahar al-Qamish, is said to be under suspicion, according to two US officials.” [Newsweek, 2/13/2006] Al-Badawi and nine others escaped a Yemeni prison in 2003 and then were recaptured one year later (see April 11, 2003-March 2004). Al-Badawi and Elbaneh turn themselves in to the Yemeni government in 2007 and then are freed (see October 17-29, 2007 and February 23, 2008).

Entity Tags: Jamal al-Badawi, Ali Mutahar al-Qamish, Jaber Elbaneh, Yemeni Political Security Organization

Timeline Tags: Complete 911 Timeline

A Washington Post article repeats assertions by the National Security Agency (NSA) and the Bush administration that even if the NSA is automatically intercepting and storing millions of domestic phone calls and emails (see January 16, 2004), such computerized surveillance does not legally “count” unless it is examined—i.e. read or listened to—by human analysts. As the Post reports, NSA rules state that “‘acquisition’ of content does not take place until a conversation is interrupted and processed ‘into an intelligible form intended for human inspection.’” The Post article says that “nearly all” of the intercepted “overseas” communications from American citizens have been “dismissed” by intelligence officers who found nothing of interest in them. The Post observes: “Fewer than 10 US citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well. That step still requires a warrant from a federal judge, for which the government must supply evidence of probable cause.” And, according to the Post’s “knowledgeable sources,” no more than 5,000 Americans have had their conversations recorded or their emails examined by intelligence analysts. According to Bush administration officials, the Post reports, “[s]urveillance takes place in several stages… the earliest by machine. Computer-controlled systems collect and sift basic information about hundreds of thousands of faxes, emails, and telephone calls into and out of the United States before selecting the ones for scrutiny by human eyes and ears. Successive stages of filtering grow more intrusive as artificial intelligence systems rank voice and data traffic in order of likeliest interest to human analysts. But intelligence officers, who test the computer judgments by listening initially to brief fragments of conversation, ‘wash out’ most of the leads within days or weeks.” People who have helped develop the computer analysis technology say that “it is a triumph for artificial intelligence if a fraction of one percent of the computer-flagged conversations guide human analysts to meaningful leads.”
Controversy over Legality, Usefulness of Surveillance - National security lawyers say that the high proportion of false leads and innocent bystanders being wiretapped contravenes the “reasonable” search provisions of the Fourth Amendment. One government official says the success rate should be closer to 50 percent—one out of every two persons surveilled—and not less than one percent. “Those who devised the surveillance plan, the official says, “knew they could never meet that standard—that’s why they didn’t go through” the court that supervises the Foreign Intelligence Surveillance Act, or FISA. Bush officials refuse to say whether the NSA is discarding the more than 99 percent of communications that it intercepts and deems useless for further analysis. Jeff Jonas, an IBM scientist who invented a data-mining system now in use by both private and governmental entities, says that the kind of pattern-matching data analysis used by the NSA in its surveillance program is neither useful nor accurate. Those analysis techniques that “look at people’s behavior to predict terrorist intent,” he says, “are so far from reaching the level of accuracy that’s necessary that I see them as nothing but civil liberty infringement engines.” Psychology professor James W. Pennebaker disagrees. “Frankly, we’ll probably be wrong 99 percent of the time,” he says, “but one percent is far better than one in 100 million times if you were just guessing at random. And this is where the culture has to make some decisions.” [Washington Post, 2/5/2006]
Former AT&T Technician: AT&T, NSA Violating Fourth Amendment - Former AT&T senior technician Mark Klein (see July 7, 2009 and May 2004) will later take a different view of the issue. In 2009, he will write: “[T]he illegal act happens at the point of seizure by the government, i.e. the splitter—not later, whether or not a medium is involved (see January 16, 2004). That is the whole part of the Fourth Amendment, which demands the government get a warrant to show ‘probable cause’ for seizing things, whatever the government does with it afterwards. What they do later is unknown, and at any rate, their word on anything has proven to be an exercise in prevarication.” [Klein, 2009, pp. 48-49]

Entity Tags: Jeff Jonas, Foreign Intelligence Surveillance Act, Bush administration (43), James W. Pennebaker, Mark Klein, National Security Agency, Washington Post

Timeline Tags: Civil Liberties

In an interview with PBS’s Gwen Ifill, Representative Jane Harman (D-CA), the ranking Democrat on the House Intelligence Committee, says she supports the administration’s warrantless wiretapping program (see Spring 2001), a position that places her at odds with most Congressional Democrats. “Well, I said then and I say now that I support the program,” she tells Ifill. Harman is critical of the insider leaks that led to the public divulgance of the program (see December 15, 2005), saying, “Well, I think the leaks have done a lot of damage, and I deplore the leaks of this critical program.” She goes on to complain that the administration “says it adequately oversees this program,” but “the system of checks and balances that we have… requires that Congress as an independent branch of government pass the laws, fund the programs, and oversee how all that works.” In addition to requesting greater cooperation on oversight with Congress, she adds that “the courts need to be cut back in,” and thinks the “entire program” should be brought under the Foreign Intelligence Surveillance Act. [PBS, 2/8/2006] Four days later, Harman reiterates her position on NBC’s Meet the Press. She tells moderator Tim Russert, “If the press was part of the process of delivering classified information, there have to be some limits on press immunity.” Russert asks, “But if [the NSA leak] came from a whistleblower, should the New York Times reporter be prosecuted?” Harman answers: “Well, it’s not clear it was a whistleblower. You have to prove that first. If it’s protected by the whistleblower statute, then it’s protected.… By the way, I deplore that leak. This is a very valuable foreign [intelligence] collection program. I think it is tragic that a lot of our capabilities are now [spread] across the pages of the newspapers.” [MSNBC, 2/12/2006; NewsMax, 2/12/2006]

Entity Tags: Jane Harman, Gwen Ifill, New York Times, House Intelligence Committee, Foreign Intelligence Surveillance Act, Tim Russert

Timeline Tags: Civil Liberties

During a speech defending his campaign against al-Qaeda, President Bush describes a previously obscure al-Qaeda plot to crash an airplane into the Library Tower (since renamed the US Bank tower) in Los Angeles in 2002 (see October 2001-February 2002). It is the tallest building on the West Coast of the US. The plot was first briefly mentioned in a Bush speech in October 2005 (see October 6, 2005), but Bush and his aides now provide new details. The plot was allegedly masterminded by Khalid Shaikh Mohammed, the mastermind of the 9/11 attacks, but was foiled when the four Asians recruited for the plot were arrested in Asia. Bush’s speech on the plot comes on the same day as a Senate hearing into the NSA’s illegal domestic wiretapping program. The Washington Post comments, “several US intelligence officials played down the relative importance of the alleged plot and attributed the timing of Bush’s speech to politics. The officials… said there is deep disagreement within the intelligence community over the seriousness of the Library Tower scheme and whether it was ever much more than talk.” One intelligence official “attributed the [speech on the plot] to the administration’s desire to justify its efforts in the face of criticism of the domestic surveillance program, which has no connection to the incident.” [Washington Post, 2/10/2006] The New York Times will similarly comment, “Bush’s speech came as Republicans are intent on establishing their record on national security as the pre-eminent issue in the 2006 midterm elections, and when the president is facing questions from members of both parties about a secret eavesdropping program that he describes as pivotal to fighting terrorism.” [New York Times, 2/10/2006]

Entity Tags: George W. Bush, Al-Qaeda, Khalid Shaikh Mohammed

Timeline Tags: Complete 911 Timeline, Civil Liberties

Retired AT&T technician Mark Klein (see December 15-31, 2005 and July 7, 2009), working with a civil liberties group about his knowledge of governmental illegality in eavesdropping on Americans’ telephone and Internet communications (see Early January 2006), has contacted Los Angeles Times reporter Joseph Menn about publishing an article expising AT&T’s collusion with the National Security Agency (NSA) to illegally conduct surveillance against American citizens (see January 23, 2006 and After). Klein believed Menn was enthusiastic about exposing AT&T and the NSA in his newspaper. Instead, Klein is shocked to hear from Menn that the Times’s “top guy” is preparing to meet with Director of National Intelligence John Negroponte to discuss any such publication. “I nearly fell down in shock,” Klein will later write. “[T]hey were actually negotiating with the government on whether to publish!” Menn describes himself to Klein as “demoralized,” and says the chances of getting the story published are “grim.” In his seven years at the Times, Menn tells Klein, he has never seen a story “spiked” for “nefarious reasons,” implying that the reason behind the story’s non-publication are “nefarious.” Klein is also dismayed that the Times has now revealed his existence as a whistleblower to Negroponte, and by extension to the US intelligence apparatus. Two days ago, Klein began emailing a New York Times reporter, James Risen, the co-author of a 2005 expose about the NSA’s surveillance program (see December 15, 2005). After hearing from Menn, Klein emails Risen to inform him of the Los Angeles Times’s decision to “consult” with Negroponte, and also of the lack of interest he has received from Senator Dianne Feinstein’s office (see February 1-6, 2006). Risen calls in fellow reporter Eric Lichtblau, his co-author on the 2005 story, and the two begin working on their own story. Klein remains worried about his personal and professional safety, since, as he will write, “[t]he government was on to me, but I did not yet have a published article and the protection that comes with publicity. I had visions, perhaps paranoid in hindsight, of being disappeared in the night, like [nuclear industry whistleblower] Karen Silkwood.” The Los Angeles Times story will drag on until March 29, when Menn will inform Klein that it is officially dead, blocked by Times editor Dean Baquet. Klein will later learn that Baquet had not only been in contact with Negroponte, but with NSA Director Michael Hayden. In 2007, Baquet will tell ABC News reporters that “government pressure played no part in my decision not to run with the story,” and will say that he and managing editor Doug Frantz decided “we did not have a story, that we could not figure out what was going on” with Klein’s documentation (see March 26, 2007). Klein will call Baquet’s explanation an “absurd and flimsy excuse,” and will say it is obvious that the Los Angeles Times “capitulated to government pressure.” [PBS Frontline, 5/15/2007; Klein, 2009, pp. 59-62]

Entity Tags: James Risen, Dean Baquet, AT&T, Dianne Feinstein, Eric Lichtblau, Joseph Menn, Michael Hayden, John Negroponte, Douglas Frantz, National Security Agency, Los Angeles Times, Mark Klein

Timeline Tags: Civil Liberties

Attorney General Alberto Gonzales says he will sharply limit the testimony of former attorney general John Ashcroft and former deputy attorney general James Comey before the Senate Judiciary Committee. The committee is preparing for hearings on the warrantless wiretapping program authorized by President Bush several months after the 9/11 attacks (see Early 2002). Gonzales says that “privilege issues” will circumscribe both men’s testimony: “As a general matter, we would not be disclosing internal deliberations, internal recommendations. That’s not something we’d do as a general matter, whether or not you’re a current member of the administration or a former member of the administration.” He adds, “You have to wonder what could Messrs. Comey and Ashcroft add to the discussion.” Comey was an observer to the late-night visit by Gonzales and then-White House chief of staff Andrew Card to Ashcroft’s hospital room, where Gonzales and Card unsuccessfully attempted to persuade the heavily sedated Ashcroft to reauthorize the program after Comey, as acting attorney general, determined the program was likely illegal (see March 10-12, 2004). Committee chairman Arlen Specter (R-PA) says he has asked Gonzales for permission to call Comey and Ashcroft to testify, but has not yet received an answer. Specter says, “I’m not asking about internal memoranda or any internal discussions or any of those kind of documents which would have a chilling effect.” Specter will ask Ashcroft and Comey to talk about the legal issues at play in the case, including the events surrounding the hospital visit. In the House Judiciary Committee, Republicans block an attempt by Democrats to ask Gonzales to provide legal opinions and other documents related to the program. [Washington Post, 2/16/2006]

Entity Tags: Andrew Card, Alberto R. Gonzales, Arlen Specter, George W. Bush, John Ashcroft, House Judiciary Committee, James B. Comey Jr., Senate Judiciary Committee

Timeline Tags: Civil Liberties

Electronic Frontier Foundation (EFF) lawyer Kevin Bankston asks AT&T whistleblower Mark Klein (see December 15-31, 2005 and July 7, 2009) to submit a legal declaration as to his knowledge of AT&T’s collusion with the National Security Agency (NSA) in its illegal domestic wiretapping program. Klein is working with the EFF in that organization’s lawsuit against AT&T (see Early January 2006 and January 31, 2006). Five days later, Klein submits his evidence of AT&T’s actions (see December 31, 2005) to Bankston to be used in the lawsuit. Klein will work with his lawyers to craft the declaration, and will have it in final form by late March. [Klein, 2009, pp. 63-64]

Entity Tags: National Security Agency, AT&T, Electronic Frontier Foundation, Mark Klein, Kevin Bankston

Timeline Tags: Civil Liberties

The Al Haramain Islamic Foundation, a now-defunct Saudi Arabian charitable organization that once operated in Oregon, sues the Bush administration [Associated Press, 2/28/2006] over what it calls illegal surveillance of its telephone and e-mail communications by the National Security Agency, the so-called Terrorist Surveillance Program. The lawsuit may provide the first direct evidence of US residents and citizens being spied upon by the Bush administration’s secret eavesdropping program, according to the lawsuit (see December 15, 2005). According to a source familiar with the case, the NSA monitored telephone conversations between Al Haramain’s director, then in Saudi Arabia, and two US citizens working as lawyers for the organization and operating out of Washington, DC. The lawsuit alleges that the NSA violated the Foreign Intelligence Surveillance Act (see 1978), the US citizens’ Fourth Amendment rights, and the attorney-client privilege. FISA experts say that while they are unfamiliar with the specifics of this lawsuit, they question whether a FISA judge would have allowed surveillance of conversations between US lawyers and their client under the circumstances described in the lawsuit. Other lawsuits have been filed against the Bush administration over suspicions of illegal government wiretapping, but this is the first lawsuit to present classified government documents as evidence to support its contentions. The lawsuit alleges that the NSA illegally intercepted communications between Al Haramain officer Suliman al-Buthe in Saudi Arabia, and its lawyers Wendell Belew and Asim Ghafoor in Washington. One of its most effective pieces of evidence is a document accidentally turned over to the group by the Treasury Department, dated May 24, 2004, that shows the NSA did indeed monitor conversations between Al Haramain officials and lawyers. When Al Haramain officials received the document in late May, 2004, they gave a copy to the Washington Post, whose editors and lawyers decided, under threat of government prosecution, to return the document to the government rather than report on it (see Late May, 2004). [Washington Post, 3/2/2006; Washington Post, 3/3/2006] Lawyer Thomas Nelson, who represents Al Haramain and Belew, later recalls he didn’t realize what the organization had until he read the New York Times’s December 2005 story of the NSA’s secret wiretapping program (see December 15, 2005). “I got up in the morning and read the story, and I thought, ‘My god, we had a log of a wiretap and it may or may not have been the NSA and on further reflection it was NSA,’” Nelson will recall. “So we decided to file a lawsuit.” Nelson and other lawyers were able to retrieve one of the remaining copies of the document, most likely from Saudi Arabia, and turned it over to the court as part of their lawsuit. [Wired News, 3/5/2007]
Al Haramain Designated a Terrorist Organization - In February 2004, the Treasury Department froze the organization’s US financial assets pending an investigation, and in September 2004, designated it a terrorist organization, citing ties to al-Qaeda and alleging financial ties between Al Haramain and the 1998 bombings of two US embassies in Africa (see 10:35-10:39 a.m., August 7, 1998). The organization was disbanded by the Saudi Arabian government in June 2004 and folded into an “umbrella” private Saudi charitable organization, the Saudi National Commission for Relief and Charity Work Abroad (see March 2002-September 2004). In February 2005, the organization was indicted for conspiring to funnel money to Islamist fighters in Chechnya. The charges were later dropped. [US Treasury Department, 9/9/2004; Washington Post, 3/2/2006] The United Nations has banned the organization, saying it has ties to the Taliban. [United Nations, 7/27/2007]
Challenging Designation - In its lawsuit, Al Haramain is also demanding that its designation as a terrorist organization be reversed. It says it can prove that its financial support for Chechen Muslims was entirely humanitarian, with no connections to terrorism or violence, and that the Treasury Department has never provided any evidence for its claims that Al Haramain is linked to al-Qaeda or has funded terrorist activities. [Associated Press, 8/6/2007] The lawsuit also asks for $1 million in damages, and the unfreezing of Al Haramain’s US assets. [Associated Press, 8/5/2007]
Administration Seeks to Have Lawsuit Dismissed - The Bush administration will seek to have the lawsuit thrown out on grounds of national security and executive privilege (see Late 2006-July 2007, Mid-2007).

Entity Tags: Wendell Belew, Suliman al-Buthe, Taliban, Washington Post, United Nations, Saudi National Commission for Relief and Charity Work Abroad, US Department of the Treasury, National Security Agency, Thomas Nelson, Foreign Intelligence Surveillance Act, Al Haramain Islamic Foundation, Al-Qaeda, Al Haramain Islamic Foundation (Oregon branch), Foreign Intelligence Surveillance Court, Asim Ghafoor, Bush administration (43)

Timeline Tags: Civil Liberties

Sam Karmilowicz, a former security officer at the US embassy in Manila, suggests in an interview with CounterPunch magazine, that US intelligence may have failed to properly follow leads in a counterterrorism case because of a potential link to Pakistani intelligence. In September 1994, Karmilowicz allegedly received information that a Pakistani businessman with possible ties to the ISI was part of a plot to assassinate President Clinton during his November 1994 visit to Manila (see September 18-November 14, 1994). An interagency US security team that was tasked with investigating the tip ended its investigation after only a few weeks. “My experience in the Philippines shows the US government has compartmentalized information… in order to cover-up its gross incompetence or its complicity in illegal and questionable activities conducted by, or against, foreign powers,” Karmilowicz says. [CounterPunch, 3/9/2006]

Entity Tags: Sam Karmilowicz, US intelligence

Timeline Tags: Complete 911 Timeline

Rayed Abdullah.Rayed Abdullah. [Source: Scoop]Rayed Abdullah, an associate of hijacker pilot Hani Hanjour (see October 1996-December 1997 and October 1996-Late April 1999), enters New Zealand despite being on the watch list there and takes further pilot training. The New Zealand government claims it only ascertains his real identity after he has been in the country several months. Abdullah is then arrested and deported to Saudi Arabia, even though he was traveling on a Yemeni passport. [Associated Press, 6/9/2006; New Zealand Herald, 6/10/2006] However, FBI agents and CIA officers later say that the US released Abdullah after 9/11 in an attempt to use him to spy on al-Qaeda for Saudi Arabia’s intelligence agency. The CIA ensures he is allowed into New Zealand as a part of a joint operation. However, the New Zealanders get cold feet when Abdullah starts flight training again. A CIA official will say: “[W]e know if Rayed was part of the [9/11] plot, someone in al-Qaeda will reach out for him, and we have a chance of making that connection.” An FBI official will comment: “The amazing thing is the CIA convinced itself that by getting [Abdullah] tossed out of New Zealand, he would then be trusted and acceptable to Saudi intelligence and useful in al-Qaeda operations. For this tiny chance of success they put passengers at risk to enter into a partnership with Saudi intelligence.” [Stories that Matter, 10/9/2006]

Entity Tags: Central Intelligence Agency, Rayed Abdullah

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

Zacarias Moussaoui.Zacarias Moussaoui. [Source: WNBC / Jonathan Deinst]Zacarias Moussaoui becomes the first and only person charged in direct connection with the 9/11 attacks to stand trial in the US. [Associated Press, 3/17/2006] He was preparing to hijack an aircraft and fly it into a target when he was arrested 26 days before 9/11 (see August 16, 2001 and April 22, 2005). Although there has been disagreement whether Moussaoui was to take part in the actual attack of 9/11 or a follow-up plot (see January 30, 2003), the prosecution alleges that Moussaoui had information related to the attacks (see August 16, 2001) and facilitated them by lying and not disclosing everything he knew to the FBI. He is charged with six counts, including conspiracy to commit acts of terrorism and conspiracy to commit aircraft piracy. [US District Court for the Eastern District of Virginia, Alexandria Division, 12/11/2001 pdf file] The trial receives much media coverage and the highlights include the playing of United 93’s cockpit recorder (see April 12, 2006), a row over a government lawyer coaching witnesses (see March 13, 2006), and testimony by FBI agent Harry Samit (see March 9 and 20, 2006), former FBI assistant director Michael Rolince (see March 21, 2006), and Moussaoui himself (see March 27, 2006). Moussaoui is forced to wear a stun belt, controlled by one of the marshalls, under his jumpsuit. The belt is to be used if Moussaoui lunges at a trial participant. [New York Times, 4/17/2006] He has already pleaded guilty (see April 22, 2005) and the trial is divided into two phases; in the first phase the jury decides that Moussaoui is eligible for the death penalty, but in the second phase it fails to achieve unanimity on whether Moussaoui should be executed (see May 3, 2006). [Associated Press, 4/3/2006; New York Times, 4/17/2006]

Entity Tags: Zacarias Moussaoui

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

Republicans on the Senate Intelligence Committee refuse to allow an inquiry into the Bush administration’s warrantless wiretapping program (see December 15, 2005 and December 18, 2005), with the committee voting 10-8 along party lines to reject such a probe. Senate Judiciary Committee chairman Arlen Specter (R-PA) had advocated such a probe, but White House officials refused to cooperate with his committee, saying they would only cooperate via classified briefings to the Intelligence Committee. However, committee Republicans, led by chairman Pat Roberts (R-KS), have no intention of allowing such an inquiry. Roberts and his fellows say they will push to impose limitations on the program. Committee Democrats accuse their Republican colleagues of colluding with the administration to block the inquiry. “The committee is, to put it bluntly, is basically under the control of the White House,” says ranking committee member John D. Rockefeller (D-WV). “You can’t legislate properly unless you know what’s going on.” The Republicans have left Congress to “legislate in darkness and ignorance,” he says. Republicans say that a new, select subcommittee will increase oversight of the administration’s wiretapping. “It provides for a case-by-case examination and oversight by the United States Congress,” says Mike DeWine (R-OH), who is helping draft the bill for the new oversight subcommittee. “It will be very consistent with what our constitutional obligations are.” DeWine’s bill would allow the administration to ignore restrictions on wiretapping merely by invoking national security, and would not allow the committee to intervene even in clearly unjustified cases of wiretapping. “The White House could just decide not to tell them everything, and there’s no sanction,” says Bruce Fein, a former Reagan administration lawyer. “And the president can still claim that he has inherent power to conduct surveillance.” The bill is “extremely generous to the president,” says conservative law professor Douglas Kmiec. “It is not significantly different from the status quo. And I think the president would be quite delighted by that.” [Boston Globe, 3/8/2006; Savage, 2007, pp. 204]

Entity Tags: Senate Judiciary Committee, Bruce Fein, Arlen Specter, Bush administration (43), Pat Roberts, Douglas Kmiec, Mike DeWine, John D. Rockefeller, Senate Intelligence Committee

Timeline Tags: Civil Liberties

President Bush signs the USA Patriot Improvement and Reauthorization Act of 2005 into law. The bill, which extends and modifies the original USA Patriot Act (see October 26, 2001), was driven through Congress primarily by the Republican majorities in both Houses. However, Senator Dianne Feinstein (D-CA) cosponsored the Senate bill, numerous Democrats in both Houses voted with the Republicans in favor of the bill, and the final bill sailed through the Senate by an 89-10 vote on March 2. [GovTrack, 3/9/2006; Library of Congress, 3/9/2006] In the signing ceremony, Bush calls the Reauthorization Act “a really important piece of legislation… that’s vital to win the war on terror and to protect the American people.” He repeatedly evokes the 9/11 attacks as a reason why the new law is needed. [Government Printing Office, 3/9/2006]
Provisions for Oversight Added - One of the reasons why the reauthorization bill received such support from Congressional moderates on both sides of the aisle is because Congress added numerous provisions for judicial and Congressional oversight of how government and law enforcement agencies conduct investigations, especially against US citizens. Representative Butch Otter (R-ID) said in 2004 that Congress came “a long way in two years, and we’ve really brought an awareness to the Patriot Act and its overreaches that we gave to law enforcement.” He adds, “We’ve also quieted any idea of Patriot II, even though they snuck some of Patriot II in on the intelligence bill” (see February 7, 2003). [Associated Press, 1/23/2004]
Opposition From Both Sides - Liberal and conservative organizations joined together in unprecedented cooperation to oppose several key provisions of the original reauthorization and expansion of the Patriot Act, including easing of restrictions on government and law enforcement agencies in obtaining financial records of individuals and businesses, “sneak-and-peek” searches without court warrants or the target’s knowledge, and its “overbroad” definition of the term “terrorist.” Additionally, lawmakers in Congress insisted on expiration dates for the various surveillance and wiretapping methodologies employed by the FBI and other law enforcement agencies (see Early 2002). [Associated Press, 5/23/2005] The final bill mandates that anyone subpoenaed for information regarding terrorist investigations has the right to challenge the requirement that they not reveal anything about the subpoena, those recipients will not be required to tell the FBI the name of their lawyer, and libraries that are not Internet service providers will not be subject to demands from “national security letters” for information about their patrons. Many of the bill’s provisions will expire in four years. [Christian Science Monitor, 3/3/2006]
Reauthorizing Original Provisions - The bill does reauthorize many expiring provisions of the original Patriot Act, including one that allows federal officials to obtain “tangible items,” such as business records from libraries and bookstores, in connection with foreign intelligence and international terrorism investigations. Port security provisions are strengthened, and restrictions on the sale of over-the-counter cold and allergy medicine that can be used in the illegal manufacture of methamphetamine are imposed, forcing individuals to register their purchases of such medicines and limiting the amounts they can buy. [CBS News, 3/9/2006]
Bush Signing Statement Says He Will Ignore Oversight Mandates - But when he signs the bill into law, Bush also issues a signing statement that says he has no intention of obeying mandates that enjoin the White House and the Justice Department to inform Congress about how the FBI is using its new powers under the bill. Bush writes that he is not bound to tell Congress how the new Patriot Act powers are being used, and in spite of what the law requires, he can and will withhold information if he decides that such disclosure may “impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive’s constitutional duties.” [Statement on Signing the USA PATRIOT Improvement and Reauthorization Act, 3/9/2006; Boston Globe, 3/24/2006] Senator Patrick Leahy (D-VT) says that Bush’s assertion that he can ignore provisions of the law as he pleases, under the so-called “unitary executive” theory, are “nothing short of a radical effort to manipulate the constitutional separation of powers and evade accountability and responsibility for following the law.” Law professor David Golove says the statement is illustrative of the Bush administration’s “mind-bogglingly expansive conception” of executive power, and its low regard for legislative power. [Boston Globe, 3/24/2006] Author and legal expert Jennifer Van Bergen warns of Bush using this signing statement to avoid accountability about the NSA’s warrantless wiretapping program, writing: “[I]t is becoming clearer every day that Bush has no qualms about violating either international laws and obligations or domestic laws. The recent revelations about the secret NSA domestic surveillance program revealed Bush flagrantly violating the Foreign Intelligence Surveillance Act which was specifically enacted to prevent unchecked executive branch surveillance. … His signing statements, thus, are nothing short of an attempt to change the very face of our government and our country.” [Institute for Public Accuracy, 3/27/2006]
Request to Rescind Signing Statement - In late March, Democratic House members Jane Harman and John Conyers will write to Attorney General Alberto Gonzales requesting that the administration rescind the signing statement, writing: “As you know, ‘signing statements’ do not have the force of law. Legislation passed by both Houses and signed by the president does. As Article 1, Section 7, of the Constitution states: ‘Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it.’” Bush and Gonzales will ignore the request. [US House of Representatives, 3/29/2006]

Entity Tags: US Department of Justice, Domestic Security Enhancement Act of 2003, David Golove, Alberto R. Gonzales, Butch Otter, Dianne Feinstein, Patrick J. Leahy, USA Patriot Act, John Conyers, Federal Bureau of Investigation, National Security Agency, Foreign Intelligence Surveillance Act, Jennifer Van Bergen, Jane Harman, George W. Bush

Timeline Tags: Civil Liberties

Senator Russell Feingold (D-WI) tells reporters that he intends to push through legislation that would censure President Bush because of his domestic surveillance program (see February 2001, Spring 2001, After September 11, 2001, After September 11, 2001, October 2001, Early 2002, September 2002, Late 2003-Early 2004, April 19-20, 2004, June 9, 2005, June 9, 2005, December 15, 2005, December 17, 2005, December 19, 2005, December 24, 2005, January 5, 2006, January 18, 2006, January 18, 2006, January 23, 2006, and January 30, 2006). “What the president did by consciously and intentionally violating the Constitution and laws of this country with this illegal wiretapping has to be answered,” Feingold tells an interviewer. “Proper accountability is a censuring of the president, saying, ‘Mr. President, acknowledge that you broke the law, return to the law, return to our system of government.‘… The president has broken the law and, in some way, he must be held accountable.… Congress has to reassert our system of government, and the cleanest and the most efficient way to do that is to censure the president. And, hopefully, he will acknowledge that he did something wrong.” Senate Majority Leader Bill Frist (R-TN) calls Feingold’s proposal “a crazy political move.” The Senate Intelligence Committee, following the Bush administration’s lead, has rejected some Democrats’ call for a full investigation of the surveillance program (see February 1-6, 2006). Instead, the committee has adopted a Republican plan for a seven-member subcommittee to conduct oversight. Feingold says his censure motion is not “a harsh approach, and it’s one that I think should lead to bipartisan support.” Frist, however, says: “I think it, in part, is a political move because here we are, the Republican Party, the leadership in the Congress, supporting the president of the United States as commander in chief who is out there fighting al-Qaeda and the Taliban and Osama bin Laden and the people who have sworn—have sworn—to destroy Western civilization and all the families listening to us.… The signal that it sends that there is in any way a lack of support for our commander in chief who is leading us with a bold vision in a way that we know is making our homeland safer is wrong. And it sends a perception around the world.” Only once in history has a president been censured by Congress: Andrew Jackson in 1834. In the House, Representative John Conyers (D-MI) is exploring the idea of introducing impeachment legislation against Bush. [New York Times, 3/12/2006; Associated Press, 3/12/2006] Feingold says on the Senate floor: “The president has violated the law and Congress must respond. A formal censure by Congress is an appropriate and responsible first step to assure the public that when the president thinks he can violate the law without consequences, Congress has the will to hold him accountable.” Most Congressional Democrats want nothing to do with either Feingold’s or Conyers’s legislative ideas, and some Republicans seem to be daring Democrats to vote for the proposal. Vice President Dick Cheney tells a Republican audience in Feingold’s home state of Wisconsin, “Some Democrats in Congress have decided the president is the enemy.” Democratic leaders in the Senate thwart an immediate vote as requested by Frist, and Senator Richard Durbin (D-IL) says he is not sure the proposal will ever come to a vote. Senate Minority Leader Harry Reid (D-NV) says he does not support it and has not read it. Senator Joseph Lieberman (D-CT) makes a similar assertion. In the House, Minority Leader Nancy Pelosi (D-CA) refuses to support such a proposal, saying in a statement that she “understands Senator Feingold’s frustration that the facts about the NSA domestic surveillance program have not been disclosed appropriately to Congress. Both the House and the Senate must fully investigate the program and assign responsibility for any laws that may have been broken.” [Associated Press, 3/14/2006] Former Nixon aide John Dean testifies in support of Feingold’s censure motion (see March 31, 2006). However, the censure motion, lacking support from Democratic leaders and being used by Republicans as a means to attack Democrats’ patriotism, never comes to a vote. [Klein, 2009, pp. 84]

Entity Tags: Joseph Lieberman, George W. Bush, Bush administration (43), Bill Frist, Harry Reid, John Dean, Russell D. Feingold, Senate Intelligence Committee, Richard (“Dick”) Durbin, Richard (“Dick”) Cheney, Nancy Pelosi, John Conyers

Timeline Tags: Civil Liberties

Judge Leonie Brinkema halts the trial of Zacarias Moussaoui (see March 6-May 4, 2006) after it is discovered that Transportation Security Administration lawyer Carla J. Martin violated a court order prohibiting witnesses from following the trial. Martin e-mailed transcripts to seven witnesses and coached them on their testimony. Brinkema calls it “the most egregious violation of the court’s rules on witnesses [I have seen] in all the years I’ve been on the bench.” Even the prosecution says, “We frankly cannot fathom why she engaged in such conduct.” [Washington Post, 3/14/2006; Associated Press, 3/17/2006] Brinkema allows the prosecution to continue to seek the death penalty, but initially removes the aviation security portion of evidence from its case. However, after the prosecution complains this makes the proceedings pointless, she reinstates some of it, allowing the trial to continue. [Associated Press, 3/15/2006; CNN, 3/16/2006; Associated Press, 3/17/2006] As a result of her actions, Martin is placed on paid leave. Additionally, Pennsylvania’s lawyer disciplinary board begins an investigation and federal prosecutors explore charges. [Washington Post, 7/10/2006] Martin’s e-mails also reveal that she has been communicating with attorneys for United and American Airlines. This prompts seven victims’ relatives, who are suing the airlines for being negligent on 9/11, to file a civil action against her alleging that she is trying to help the airline industry avoid civil liability. [CBS News, 4/7/2006; CNN, 4/26/2006]

Entity Tags: Leonie Brinkema, Carla Martin

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

A court filing by Lewis Libby’s defense team lists the witnesses the lawyers say they intend to put on the stand in their client’s defense. The list includes:
bullet Former Deputy Secretary of State Richard Armitage (see June 13, 2003, After October 28, 2005, and November 14, 2005);
bullet Former White House press secretary Ari Fleischer (see July 7, 2003, 8:00 a.m. July 11, 2003, and 1:26 p.m. July 12, 2003);
bullet Former Undersecretary of State Marc Grossman (see June 10, 2003);
bullet Former Secretary of State Colin Powell (see July 16, 2004);
bullet White House political strategist Karl Rove (see July 8, 2003, July 8 or 9, 2003, and 11:00 a.m. July 11, 2003);
bullet Former CIA Director George Tenet (see June 11 or 12, 2003, July 11, 2003 and 3:09 p.m. July 11, 2003);
bullet Former US ambassador Joseph Wilson (see July 6, 2003);
bullet Former CIA covert operative Valerie Plame Wilson (see July 14, 2003);
bullet National Security Adviser Stephen Hadley (see July 21, 2003 and November 14, 2005);
bullet CIA briefers Craig Schmall (see 7:00 a.m. June 14, 2003), Peter Clement, and/or Matt Barrett;
bullet Former CIA officials Robert Grenier (see 4:30 p.m. June 10, 2003, 2:00 p.m. June 11, 2003, and 5:27 p.m. June 11, 2003) and/or John McLaughlin (see June 11 or 12, 2003);
bullet Former CIA spokesman Bill Harlow (see 5:27 p.m. June 11, 2003, (July 11, 2003), and Before July 14, 2003);
bullet Vice President Dick Cheney’s chief of staff David Addington (see July 8, 2003);
bullet Former Cheney press secretary Cathie Martin (see 5:27 p.m. June 11, 2003); and
bullet Cheney himself (see July 12, 2003 and Late September or Early October, 2003).
The defense also:
bullet Wants notes from a September 2003 White House briefing where Powell reportedly claimed that many people knew of Plame Wilson’s CIA identity before it became public knowledge;
bullet Implies that Grossman may not be an unbiased witness;
bullet Suspects Fleischer may have already cooperated with the investigation (see June 10, 2004);
bullet Intends to argue that Libby had no motive to lie to either the FBI (see October 14, 2003 and November 26, 2003) or the grand jury (see March 5, 2004 and March 24, 2004); and
bullet Intends to argue that columnist Robert Novak’s primary source for his column exposing Plame Wilson as a CIA official was not Libby, but “a source outside the White House” (see July 8, 2003). [US District Court for the District of Columbia, 3/17/2006 pdf file; Jeralyn Merritt, 3/18/2006]
Criminal defense attorney Jeralyn Merritt believes Libby’s team may be preparing to lay blame for the Plame Wilson leak on Grossman. She writes that, in her view, “Libby’s lawyers are publicly laying out how they intend to impeach him: by claiming he is not to be believed because (either or both) his true loyalty is to Richard Armitage rather than to the truth, or he is a self-aggrandizing government employee who thinks of himself a true patriot whose duty it is to save the integrity of the State Department.” [Jeralyn Merritt, 4/4/2006] Libby’s lawyers indicate that they will challenge Plame Wilson’s significance as a covert CIA official (see Fall 1992 - 1996, April 2001 and After, Before September 16, 2003, October 3, 2003, October 11, 2003, October 22-24, 2003, October 23-24, 2003, and February 13, 2006). “The prosecution has an interest in continuing to overstate the significance of Ms. Wilson’s affiliation with the CIA,” the court filing states. They also intend to attempt to blame Armitage, Grossman, Grenier, McLaughlin, Schmall, and/or other officials outside the White House proper as the real sources for the Plame Wilson identity leak. [US District Court for the District of Columbia, 3/17/2006 pdf file; Truthout (.org), 3/18/2006]

Entity Tags: Valerie Plame Wilson, Robert Novak, Robert Grenier, Catherine (“Cathie”) Martin, Colin Powell, Ari Fleischer, Central Intelligence Agency, Bush administration (43), Bill Harlow, Richard Armitage, Richard (“Dick”) Cheney, Stephen J. Hadley, Matt Barrett, George J. Tenet, Peter Clement, Craig Schmall, Jeralyn Merritt, John E. McLaughlin, David S. Addington, Karl C. Rove, Joseph C. Wilson, Marc Grossman, Lewis (“Scooter”) Libby

Timeline Tags: Niger Uranium and Plame Outing

Michael Rolince, who headed the FBI’s International Terrorism Operations Section when Zacarias Moussaoui was arrested, testifies at Moussaoui’s trial (see March 6-May 4, 2006). He initially states that he was only informed of the Moussaoui case before 9/11 in two brief hallway conversations (see Late August 2001) and did not read a memo sent to him by the Minneapolis field office. However, under cross-examination he admits he also discussed a plan to deport Moussaoui to France, where his belongings could be searched (see (August 30-September 10, 2001)). [Associated Press, 3/21/2006; Associated Press, 3/21/2006] According to Newsday, Rolince appears “red-faced and flustered” at the end of the cross-examination and makes the court burst out laughing when he says he did not approve a briefing to FBI field offices about bin Laden threats in the US (see Before April 13, 2001), even though the briefing states he approved it. He says one of his subordinates may have approved it. [Associated Press, 3/21/2006; Newsday, 3/22/2006] Rolince is called by the prosecution, which wants him to give a list of steps the FBI would have taken if Moussaoui had confessed. However, Judge Brinkema states that, “Juries cannot decide cases on speculation… Nobody knows what would have happened.” [Associated Press, 3/21/2006; Associated Press, 3/22/2006]

Entity Tags: Michael Rolince

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

During the trial of Zacarias Moussaoui (see also March 6-May 4, 2006), the prosecution claims that if Zacarias Moussaoui had not lied when arrested and questioned (see August 16, 2001) and had provided information about the plot (see August 16, 2001), the FAA could have altered its security procedures to deal with the suicide hijacker threat. Prosecution witness Robert Cammaroto, an aviation security officer, says that security measures in effect before 9/11 were designed to cope with different types of threats, such as “the homesick Cuban,” rather than suicide hijackings. He says that if the FAA had more information about Moussaoui, its three dozen air marshals could have been moved from international to domestic flights, security checkpoints could have been tightened to detect short knives like the ones Moussaoui had, and flight crews could have been instructed to resist rather than cooperate with hijackers. Most of these steps could have been implemented within a matter of hours. However, Cammarato admits that the FAA was aware before 9/11 that terrorists considered flying a plane into the Eiffel Tower and that al-Qaeda has performed suicide operations on land and sea. [Associated Press, 3/22/2006]

Entity Tags: Federal Aviation Administration, Robert Cammarato, Carla Martin, Zacarias Moussaoui

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

Ahmed Alnami’s youth hosteling card found in the Flight 93 crash site.Ahmed Alnami’s youth hosteling card found in the Flight 93 crash site. [Source: FBI]During the trial of Zacarias Moussaoui (see March 6-May 4, 2006), the Reporters Committee for Freedom of the Press publishes a significant portion of the exhibits used during the trial. [Reporters Committee for Freedom of the Press, 12/4/2006] Previously, only a few items of the evidence linking the attacks to al-Qaeda were made public. For example, the 9/11 Commission’s Terrorist Travel Monograph contained 18 documents of the alleged hijackers and their associates. [9/11 Commission, 8/21/2004, pp. 171-195 pdf file] The published exhibits include:
bullet Items belonging to the alleged hijackers that were recovered from the crash sites and Logan airport;
bullet Some details of the hijackers’ movements in the US;
bullet Graphic photos of dead victims and body parts in the Pentagon and WTC ruins;
bullet Substitutions for testimony from some of the main plotters such as Khalid Shaikh Mohammed;
bullet The missing chapter from the Justice Department’s Office of Inspector General’s review of the FBI’s performance before 9/11 (see June 9, 2005); and
bullet FBI and CIA documents. [Reporters Committee for Freedom of the Press, 12/4/2006]
At the end of July, the US District Court for the Eastern District of Virginia, Alexandria Division, publishes more of the exhibits used in the trial. The additionally published exhibits include, for example:
bullet Documents of the hijackers found at the crash sites and Logan airport, such as Satam Al Suqami’s passport (see After 8:46 a.m. September 11, 2001), Ahmed Alnami’s youth hosteling card, and old correspondence between Mohamed Atta and the German authorities;
bullet Recordings of calls made by the passengers from the flights and recordings of the hijacker pilots talking to the passengers;
bullet Documents about the alleged hijackers prepared by the FBI such as a True Name Usage Chart for 2001 and chronologies for eleven of the hijackers from August 16-September 11, 2001;
bullet Documents from the hijackers’ flight schools;
bullet A small sample of the hijackers’ banking and phone records.
However, some of the exhibits are not disclosed. For example, the cockpit voice recording from United 93 is sealed and only a transcript is made available. [US District Court for the Eastern District of Virginia, 7/31/2006]

Entity Tags: Reporters Committee for Freedom of the Press

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

Zacarias Moussaoui claimed that Richard Reid (above) was to have helped him hijack a fifth plane on 9/11.Zacarias Moussaoui claimed that Richard Reid (above) was to have helped him hijack a fifth plane on 9/11. [Source: Mirrorpix(.com)]Against the will of his defense attorneys, Zacarias Moussaoui takes the stand at his trial (see March 6-May 4, 2006) and claims that he was supposed to fly a fifth plane on 9/11. He says the plane would have targeted the White House and one of the muscle hijackers would have been shoe-bomber Richard Reid (see December 22, 2001). However, he claims not to have known the details of the other hijackings, only that the WTC would be hit. He does not mention any other collaborators aside from Reid, who has already been sentenced to a long prison term. When the prosecution asks him whether he lied to FBI investigators so the plan could go forward he replies, “That’s correct.” An Associated Press expert calls this, “a stunning revelation that would help prosecutors rather than him.” [Associated Press, 3/27/2006] In what the New York Times calls a “bizarre moment,” the defense team, aware of the damage this admission could do, subject Moussaoui to tough questioning and the chief prosecutor objects that one of the defense attorneys is badgering his own client. [New York Times, 4/17/2006]
Uncertainty over Fifth Jet - There is some dispute over whether Moussaoui was indeed to have flown a fifth plane (see January 30, 2003 and Before 2008). Following the testimony, the defense reads statements made by al-Qaeda leaders who are in custody, but are not permitted to testify at the trial (see May 14, 2003 and March 22, 2005). The statements say that Moussaoui was not part of 9/11, but a follow-up operation. [Associated Press, 3/28/2006; US District Court for the Eastern District of Virginia, 7/31/2006 pdf file] However, these statements were obtained using torture (see June 16, 2004). The government later concedes that there is no evidence linking Richard Reid to 9/11. [Associated Press, 4/20/2006]
"Complete Fabrication" - Moussaoui had denied being part of 9/11 before the trial (see April 22, 2005). By the end of the trial he will do so again, calling the confession he makes on this day “a complete fabrication.” [Associated Press, 5/8/2006]

Entity Tags: Zacarias Moussaoui, Richard C. Reid

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

Expert witness J. Scott Marcus, in an analysis submitted on behalf of the Electronic Frontier Foundation’s lawsuit against AT&T (see January 31, 2006), notes that if the NSA had wanted to intercept only international electronic communications in its surveillance operations facilited by AT&T (see January 16, 2004), it would have placed “splitters” only at entry points such as ocean cable-head stations rather than in AT&T offices (see October 2003) in locations such as Atlanta and San Francisco (see Late 2003), where they would inevitably pick up huge amounts of domestic communications. Marcus, a former AT&T employee who held a top secret clearance when he was a consultant for the Federal Communications Commission (FCC), writes: “The majority of international IP [Internet Protocol] traffic enters the United States at a limited number of locations, many of them in the areas of northern Virginia, Silicon Valley, New York, and (for Latin America) south Florida. This deployment, however, is neither modest nor limited, and it apparently involves considerably more locations that would be required to catch the majority of international traffic.” (Emphasis in original.) Marcus continues: “I conclude that the designers of the SG3 Configuration (see Late 2003) made no attempt, in terms of the location or position of the fiber split, to exclude data sources primarily comprised of domestic data.… Once the data has been diverted, there is nothing in the data that reliably and unambiguously distinguishes whether the destination is domestic or foreign.” Marcus estimates that the NSA has 15 to 20 sites in AT&T facilities around the country, and says, “a substantial fraction, probably well over half, of AT&T’s purely domestic traffic was diverted.” Former senior AT&T technician Mark Klein (see July 7, 2009 and May 2004) will later write, “Though Marcus refrained from drawing the obvious conclusion, the facts strongly suggest that this entire apparatus was designed for domestic spying.” (Emphasis in original). [Klein, 2009, pp. 49-50, 71] Klein will also write that Marcus’s expertise “was at a much higher level than mine.” Klein will later write that he is pleased that Marcus’s statement validates and supports his own documentation and conclusions. [Klein, 2009, pp. 71]

Entity Tags: National Security Agency, AT&T, Electronic Frontier Foundation, Mark Klein, J. Scott Marcus

Timeline Tags: Civil Liberties

The Justice Department demands that it be allowed to review evidence obtained by the Electronic Frontier Foundation (EFF) from retired AT&T technician Mark Klein (see February 23-28, 2006). The EFF is preparing to submit the evidence under regular court seal to presiding Judge Vaughn Walker. Neither the Justice Department nor any other government agency is a named defendant in the EFF’s lawsuit against AT&T for its allegedly illegal behavior in working with the National Security Agency (NSA) to conduct warrantless surveillance against American citizens (see January 31, 2006). Even so, lawyers from the Justice Department say they want to see if Klein’s documentation contains classified information (it does not—see Late 2003), and if so, they intend to place Klein’s documentation into a “sensitive compartmented information facility,” which would mean it would not be kept at the courthouse but in the possession of government agents at a secure location. Such classification would make the legal proceedings more difficult for both Judge Walker and the EFF lawyers. However, the request piques the interest of the national media, and reporters begin “flooding” Klein and the EFF with requests for information and interviews. [Klein, 2009, pp. 65-66] Ironically, two news outlets, the Los Angeles Times and New York Times, have all but shunned Klein before now (see February 11, 2006 and After and Mid-February - Late March, 2006). On April 4, after perusing the documents, the government lawyers return them to Walker with approval from senior Justice Department lawyer Anthony J. Coppolino to file them under ordinary court seal. Klein will later write that Coppolino’s acquiescence will undermine the government’s later efforts to have the lawsuit dismissed under the “state secrets” provision (see Late May, 2006). [Klein, 2009, pp. 66] In June 2007, the online technical news site Wired News will publish the documents after they are released by the Electronic Frontier Foundation (see June 13, 2007) under the headline “AT&T ‘Spy Room’ Documents Unsealed; You’ve Already Seen Them.” Wired previously published them in May 2006 (see May 17, 2006), and PBS’s Frontline also published them as part of a televised documentary on Klein and the eavesdropping program. [Wired News, 6/13/2007]

Entity Tags: Mark Klein, AT&T, Anthony J. Coppolino, Los Angeles Times, US Department of Justice, New York Times, Electronic Frontier Foundation, Vaughn Walker, Wired News, National Security Agency

Timeline Tags: Civil Liberties

Jeffrey Rapp, the director of the Joint Intelligence Task Force for Combating Terrorism at the Defense Intelligence Agency, provides a 16-page document supporting the government’s declaration that Ali Saleh Kahlah al-Marri is an enemy combatant (see December 12, 2001). Rapp gives the classified document, originally prepared in September 2004 and partially declassified for the court, to the trial judge presiding over the case, Henry Floyd (see April 6, 2006). The document, informally known as the “Rapp Declarations,” makes an array of charges against al-Marri, including alleging that he “met personally” with Osama bin Laden and was sent to the US to “explore computer-hacking methods to disrupt bank records and the US financial system.” Rapp claims that al-Marri was trained in the use of poisons and had detailed information about poisonous chemicals on his laptop computer, a claim verified by an FBI search. Additionally, Rapp says that al-Qaeda “instructed al-Marri to explore possibilities for hacking into the mainframe computers of banks with the objective of wreaking havoc on US banking records.” Rapp also says that al-Marri’s computer was loaded with “numerous computer programs typically utilized by computer hackers; ‘proxy’ computer software which can be utilized to hide a user’s origin or identity when connected to the Internet; and bookmarked lists of favorite Web sites apparently devoted to computer hacking.” Rapp refuses to cite any sources other than “specific intelligence sources” that are “highly classified.” [Jeffrey M. Rapp, 9/9/2004 pdf file; CNET News, 9/22/2006] While this kind of evidence is routinely dismissed as hearsay evidence inadmissible in court, Floyd rules that because the Supreme Court ruled in Hamdi v. Rumsfeld that hearsay evidence can be used against alleged enemy combatants (see June 28, 2004), the “Rapp Declarations” would be considered. Floyd says that al-Marri’s lawyers will have to provide “more persuasive evidence” that counters the government’s case—a reversal of the usual burden of proof that places the responsibility of proving guilt on the prosecution and not the defense. [CNET News, 9/22/2006]

Entity Tags: Henry Floyd, Defense Intelligence Agency, Joint Intelligence Task Force for Combating Terrorism (DIA), Jeffrey Rapp, Al-Qaeda, Ali Saleh Kahlah al-Marri

Timeline Tags: Torture of US Captives, Civil Liberties

Retired AT&T technician and incipient whistleblower Mark Klein (see December 15-31, 2005 and July 7, 2009) issues his first press release, summarizing his knowledge of AT&T’s complicity with the National Security Agency (NSA) in that agency’s illegal domestic wiretapping program (see December 31, 2005). Klein has given documentation supporting his claims to the Electronic Frontier Foundation (EFF) in support of that organization’s lawsuit against AT&T (see January 31, 2006). Klein’s press release tells of the NSA’s “secret room” in AT&T’s Folsom Street, San Francisco, facility (see January 2003) and reveals for the first time the NSA’s use of the Narus STA 6400 to comb through the wiretapped data (see January 16, 2004). The release reads in part: “Based on my understanding of the connections and equipment at issue, it appears the NSA is capable of conducting what amounts to vacuum-cleaner surveillance of all the data crossing the Internet—whether that be people’s email, Web surfing, or any other data. Given the public debate about the constitutionality of the Bush administration’s spying on US citizens without obtaining a FISA warrant (see December 18, 2005, December 20, 2005, December 21, 2005, December 21, 2005, December 25, 2005, January 5, 2006, January 10, 2006, January 18, 2006, January 18, 2006, and January 31, 2006), I think it is critical that this information be brought out into the open, and that the American people be told the truth about the extent of the administration’s warrantless surveillance practices, particularly as it relates to the Internet. Despite what we are hearing (see December 19, 2005, December 19, 2005, December 21-22, 2005, and January 19, 2006), and considering the public track record of this administration (see December 24, 2005, Early 2006, January 23, 2006, January 25-26, 2006, and February 2, 2006), I simply do not believe their claims that the NSA’s spying program is really limited to foreign communications or otherwise consistent with the NSA’s charter or with FISA. And unlike the controversy over targeted wiretaps of individuals’ phone calls, this potential spying appears to be applied wholesale to all sorts of Internet communications of countless citizens.” Klein issues the press release in part to give himself some publicity, and the protection from government harassment such publicity might entail (see February 11, 2006 and After). [Wired News, 4/7/2006; Wired News, 4/7/2006; Klein, 2009, pp. 66-67]

Entity Tags: Electronic Frontier Foundation, AT&T, Bush administration (43), National Security Agency, Mark Klein

Timeline Tags: Civil Liberties

The New York Times publishes its first report on the allegations by former AT&T technician Mark Klein (see December 15-31, 2005 and July 7, 2009), who is providing evidence and documentation to the Electronic Frontier Foundation (EFF) for that organization’s lawsuit against AT&T (see December 31, 2005 and January 31, 2006). The three-paragraph squib, buried deep in the pages of the “A” section, says that AT&T “cooperated with the National Security Agency in 2003 to install equipment capable of ‘vacuum-cleaner surveillance’ of email messages and other Internet traffic.” The report is based in part on a recent press release issued by Klein (see April 6, 2006), and notes the EFF lawsuit in passing. It admits that Klein has provided some of the documentation to the press, if not to the Times itself (see Mid-February - Late March, 2006), but simply writes that Klein’s documents “describe a room at the AT&T Internet and telephone hub in San Francisco that contained a piece of equipment that could sift through large volumes of Internet traffic.” Klein later calls the brevity and incompleteness of the report “puzzling,” and will say, “Their only purpose seemed to be to signal the government that I had ‘provided’ the New York Times with the documents, while minimizing the story for everyone else.” Klein will speculate, “It looked like some kind of backroom brawl was going on, but the public could not know the details.” [New York Times, 4/7/2006; Klein, 2009, pp. 70] A week later, the Times will publish a more in-depth article (see April 12, 2006).

Entity Tags: Mark Klein, AT&T, Electronic Frontier Foundation, New York Times, National Security Agency

Timeline Tags: Civil Liberties

The Washington Post reports that leaked documents show the US military is conducting a propaganda campaign to exaggerate the role of Abu Musab al-Zarqawi, the alleged leader of al-Qaeda in Iraq. According to the Post, “The effort has raised his profile in a way that some military intelligence officials believe may have overstated his importance and helped the Bush administration tie the [Iraq] war to the organization responsible for the Sept. 11, 2001, attacks.” According to Col. Derek Harvey, who has been a top advisor on Iraq intelligence for the Joint Chiefs of Staff, although al-Zarqawi and other foreign insurgents in Iraq have conducted some deadly bombing attacks, they remain “a very small part of the actual numbers…. Our own focus on al-Zarqawi has enlarged his caricature, if you will—made him more important than he really is, in some ways.” Since at least 2004, the US military has manipulated the Iraq media’s coverage of Zarqawi in an effort to turn Iraqis against the insurgency. But leaked documents also explicitly list the “US Home Audience” as one of the targets of a broader propaganda campaign. Additionally, sections of leaked military briefings show that the US media was directly used to influence view of al-Zarqawi. For instance, one document notes that a “selective leak” about al-Zarqawi was made to New York Times reporter Dexter Filkins, which resulted in a 2004 front page story about a letter supposedly written by al-Zarqawi and boasting of suicide attacks in Iraq (see February 9, 2004). [Washington Post, 4/10/2006] The Daily Telegraph reported in 2004 that “senior diplomats in Baghdad claim that the letter was almost certainly a hoax.” The Telegraph also reported the US was buying extremely dubious intelligence that exaggerated al-Zarqawi’s role and was treating it as fact, even in policy decisions (see October 4, 2004). [Daily Telegraph, 10/4/2004] One US military briefing from 2004 states, “Villainize Zarqawi/leverage xenophobia response” and lists three methods: “Media operations,” “Special Ops (626)” (a reference to Task Force 626, an elite US military unit) and “PSYOP,” meaning psychological operations and propaganda. One internal US military briefing concluded that the “al-Zarqawi PSYOP program is the most successful information campaign to date… primarily for the Iraqi audience but also with the international audience.” It is supposedly US military policy not to aim psychological operations at Americans, but there appears to be no punishment for the violation of this policy in the wake of this media report. [Washington Post, 4/10/2006]

Entity Tags: Derek Harvey, Al-Qaeda, Abu Musab al-Zarqawi

Timeline Tags: US Military, Complete 911 Timeline, Events Leading to Iraq Invasion, Iraq under US Occupation, Domestic Propaganda

The New York Times does a more in-depth report on the allegations advanced by former AT&T technician Mark Klein (see December 15-31, 2005 and July 7, 2009), who is providing evidence and documentation to the Electronic Frontier Foundation (EFF) for that organization’s lawsuit against AT&T (see December 31, 2005 and January 31, 2006). The Times published a far briefer report five days earlier (see April 7, 2006). The article provides a brief synopsis of Klein’s allegations—that AT&T worked with the National Security Agency (NSA) to illegally monitor and record millions of Americans’ telephone and Internet communications and thus illegally invaded its customers’ privacy. It also notes, as did the first article, that Klein had provided some of his documentation “to reporters,” though neither article admits that the Times received the documents months beforehand (see Mid-February - Late March, 2006). The new information in the article is the conclusion of “four independent telecommunications and computer security experts” who examined Klein’s documents “at the request of The New York Times.” According to the four experts, the documents “describe equipment capable of monitoring a large quantity of email messages, Internet phone calls, and other Internet traffic. The equipment… was able to select messages that could be identified by keywords, Internet or email addresses, or country of origin and divert copies to another location for further analysis.” All four experts agreed that the documents proved “AT&T had an agreement with the federal government to systematically gather information flowing on the Internet through the company’s network. The gathering of such information, known as data mining, involves the use of sophisticated computer programs to detect patterns or glean useful intelligence from masses of information.” Brian Reid, the director of engineering at the Internet Systems Consortium, says of the AT&T/NSA project: “This took expert planning and hundreds of millions of dollars to build. This is the correct way to do high volume Internet snooping.” An expert who refuses to be named says the documents are “consistent” with Bush administration claims that the NSA only monitored foreign communications and communications between foreign and US locations, in part because of the location of the monitoring sites. (An expert witness, former AT&T and FCC employee J. Scott Marcus, has given testimony for EFF that flatly contradicts this expert’s assertions—see March 29, 2006). The article notes the Justice Department’s objections to Klein’s documents being filed with the court in the EFF lawsuit, and notes that the department withdrew its objections (see Late March - April 4, 2006). It also notes AT&T’s request for the court to order the EFF to return the documents because they are, the firm claimed, “proprietary” (see April 6-8, 2006). AT&T spokesman Walt Sharp says of Klein and the EFF lawsuit: “AT&T does follow all laws with respect to assistance offered to government agencies. However, we are not in a position to comment on matters of national security.” NSA spokesman Don Weber makes a similar statement: “It would be irresponsible of us to discuss actual or alleged operational issues as it would give those wishing to do harm to the United States the ability to adjust and potentially inflict harm.” [New York Times, 4/12/2006] Klein will write of the story, “Finally it was out there in a major newspaper, though I noticed that the New York Times did not show any images of the actual documents, and never called me back for an in-depth followup story.” [Klein, 2009, pp. 71]

Entity Tags: J. Scott Marcus, Brian Reid, AT&T, Bush administration (43), Electronic Frontier Foundation, National Security Agency, Walter Sharp, Mark Klein, Don Weber, New York Times, US Department of Justice

Timeline Tags: Civil Liberties

A new video thought to be from al-Qaeda second-in-command Ayman al-Zawahiri praises the insurgency in Iraq. He describes militant leader Abu Musab al-Zarqawi as a “beloved brother” and says, “I have lived with him up close and have seen nothing but good from him.” However, the video was apparently made some time previously, in November 2005, and the man thought to be al-Zawahiri says it was made to mark the fourth anniversary of the battle of Tora Bora (see November 16, 2001). By November 2005, al-Zarqawi had had some sort of relationship with al-Qaeda for about a year (see October 17, 2004), but this relationship will end upon his death in mid-June (see June 8, 2006). [BBC, 4/13/2006]

Entity Tags: Ayman al-Zawahiri

Timeline Tags: Complete 911 Timeline

The New York Times prints a brief editorial in response to its article about AT&T whistleblower Mark Klein and his allegations that the company is colluding with the NSA to illegally wiretap Americans’ communications and compromise their privacy (see April 12, 2006). The editorial recommends: “If AT&T is violating its customers’ privacy rights, it should come clean and stop immediately.… AT&T has a reason to worry if it is participating in illegal domestic spying. In the age of unfettered communication, no company should want to get a reputation for allowing the government to listen in on its customers’ phone calls, read their e-mail, and monitor their Web activity without the requisite legal showing.” [New York Times, 4/17/2006]

Entity Tags: AT&T, New York Times, National Security Agency, Mark Klein

Timeline Tags: Civil Liberties

Ty Cobb, the lawyer for fired CIA agent Mary McCarthy (see April 21, 2006), denies that his client leaked classified information to any reporter, and denies that his client gave any information about secret CIA prisons to Washington Post reporter Dana Priest (see November 2-18, 2005). A CIA source confirms Cobb’s statement, saying that the agency no longer asserts that McCarthy was one of Priest’s key sources. Instead, the agency now says it fired McCarthy because she had “undisclosed contacts” with Priest and other journalists. Such contacts violated her security agreement, agency officials say.
No Leaks of Classified Information - The original allegations that McCarthy revealed classified information to journalists are, apparently, no longer operational. Cobb says that McCarthy, who worked in the CIA inspector general’s office, “did not have access to the information she is accused of leaking,” namely the classified information about any secret detention centers in Europe. Cobb says that his client, who is 61, was just 10 days from retirement when she was fired, and had held senior positions at both the White House and the National Intelligence Council, is “devastated” over her firing. She believes her career will “forever be linked with misinformation about the reasons for her termination,” and, her lawyer says, her firing was “certainly not for the reasons attributed to the agency.” McCarthy had begun her retirement process in December 2005, and was planning on pursuing a legal career after leaving the agency. She will be allowed to retain her pension. A former intelligence official says, “Firing someone who was days away from retirement is the least serious action they could have taken.”
Firing Designed to Intimidate Others? - He adds, “That’s certainly enough to frighten those who remain in the agency.” The official is not the only one to believe that McCarthy was fired to intimidate other potential leakers and whistleblowers who may feel impelled to reveal questionable activities such as the CIA’s secret prison programs. Thomas Blanton, the director of George Washington University’s National Security Archive, says the Post articles about the secret prisons contained nothing that would warrant prosecution. “It’s the fact of the thing that they’re trying to keep secret, not to protect sources and methods, but to hide something controversial,” he says. “That seems like a hard prosecution to me.” Kate Martin, executive director of the Center for National Security Studies, says, “[E]ven if the espionage statutes were read to apply to leaks of information, we would say the First Amendment prohibits criminalizing leaks of information which reveal wrongful or illegal activities by the government.” [Washington Post, 4/25/2006] In 2007, former senior CIA case officer Valerie Plame Wilson will write, “By firing Mary, who was only 10 days away from retirement, the CIA management under [Director] Porter Goss was sending a clear signal that no one was to step out of line and if they did, the results would be harsh.” [Wilson, 2007, pp. 245-246]

Entity Tags: Kate Martin, Dana Priest, Ty Cobb, Central Intelligence Agency, Porter J. Goss, Valerie Plame Wilson, Tom Blanton, Mary McCarthy

Timeline Tags: Civil Liberties

The Justice Department announces that it is invoking the “state secrets” clause to prevent a lawsuit by the Electronic Frontier Foundation (EFF) against AT&T from going forward (see March 9, 1953 and January 31, 2006). The EFF is suing AT&T for compromising its customers’ privacy by colluding with the National Security Agency (NSA) in that agency’s domestic surveillance program. The government alleges that the lawsuit would reveal “state secrets” critical to “national security” if it continues. The Justice Department makes its initial filing in mid-May (see May 13, 2006). [US District Court, Northern District of California, 4/28/2006 pdf file; Klein, 2009, pp. 71]

Entity Tags: Electronic Frontier Foundation, AT&T, National Security Agency, US Department of Justice

Timeline Tags: Civil Liberties

A simulation of waterboarding arranged by ABC News.A simulation of waterboarding arranged by ABC News. [Source: ABC News]According to an ABC News report in September 2007, CIA Director Michael Hayden bans the use of waterboarding some time in 2006, with the approval of the White House. It is not known when exactly the technique is banned that year, but presumably it takes place after Hayden becomes CIA director (see May 5, 2006) and in response to the Supreme Court decision mandating that terror suspects must be given treatment consistent with the Geneva Conventions (see July 12, 2006). Waterboarding is a harsh interrogation technique that simulates drowning and is usually referred to as torture. Allegedly, the CIA last used waterboarding in 2003 on Khalid Shaikh Mohammed and “It is believed that waterboarding was used on fewer than five ‘high-value’ terrorist subjects” (see May 2002-2003). John Sifton of Human Rights Watch later says the ban “a good thing, but the fact remains that the entire [CIA interrogation] program is illegal.” [ABC News, 9/14/2007] Over a year before Hayden’s decision, Justice Department official Daniel Levin had himself subjected to simulated waterboarding to help him determine if waterboarding was indeed torture (see Late 2004-Early 2005). Levin intended to issue a memo condemning the practice as beyond the bounds of the law, but was forced out of the Justice Department before he could make that ruling.

Entity Tags: Daniel Levin, US Supreme Court, US Department of Justice, White House, Central Intelligence Agency, John Sifton, Khalid Shaikh Mohammed, Michael Hayden, Geneva Conventions

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

Zacarias Moussaoui on his way to the Supermax prison.Zacarias Moussaoui on his way to the Supermax prison. [Source: WNBC / Jonathan Deinst]Zacarias Moussaoui is sentenced to life in prison for his role in the 9/11 attacks. A jury sentences him to six consecutive life terms without the possibility of parole. A single juror votes against the death penalty for one of the three counts for which Moussaoui is eligible to receive the death sentence (see March 6-May 4, 2006). For the other two counts, the vote is 10-2. According to the foreman of the jury, the lone dissenter did not identify his or herself to the other jurors during deliberations and consequently they could not discuss the person’s reasons for opposing the death penalty. “But there was no yelling. It was as if a heavy cloud of doom had fallen over the deliberation room, and many of us realized that all our beliefs and our conclusions were being vetoed by one person,” the foreman explains to the Washington Post. “We tried to discuss the pros and cons. But I would have to say that most of the arguments we heard around the deliberation table were [in favor of the death penalty]… Our sense was this was a done deal for that person and whoever that person is, they were consistent from the first day and their point of view didn’t change.” [Washington Post, 5/12/2006] As a result of the vote, Moussaoui will not be executed and instead will serve six life sentences at the Supermax prison in Florence, Colorado. A day after the sentencing, on May 5, Moussaoui files a motion to withdraw his guilty plea. He says that his March 27 testimony that he was supposed to have hijacked a fifth plane on September 11 and fly it into the White House “was a complete fabrication.” At sentencing the judge told him, “You do not have a right to appeal your convictions, as was explained to you when you plead guilty. You waived that right.” [Associated Press, 5/8/2006]

Entity Tags: Zacarias Moussaoui

Timeline Tags: Torture of US Captives, Complete 911 Timeline, 9/11 Timeline

CIA Director Porter Goss abruptly resigns “amid allegations that he and a top aide may have attended Watergate poker parties where bribes and prostitutes were provided to a corrupt congressman.” A senior law enforcement official says, “It’s all about the Duke Cunningham scandal.” Congressman Randall “Duke” Cunningham (R-CA) was sentenced to eight years in prison after pleading guilty in late 2005 to taking millions of dollars in bribes. Goss is replaced by General Michael Hayden, the former director of the NSA. [New York Daily News, 5/6/2006] The Bush administration gives no explanation for the resignation and even Goss publicly describes his own resignation as “just one of those mysteries.” [CNN, 5/6/2006] It is later learned that Goss’s resignation is spurred in part because of the controversy surrounding his chosen CIA Executive Director, Kyle “Dusty” Foggo. Foggo is being investigated for his connections to Cunningham. Both Foggo and Cunningham are being investigated by the office of US Attorney Carol Lam (see November 8, 2002). [Talking Points Memo, 2011] In 2007, former senior CIA analyst Valerie Plame Wilson will write: “Once John Negroponte became the de facto intelligence czar as director of national intelligence (DNI—see February 17, 2005)… Goss’s effectiveness, prestige, and daily access to the president had been considerably diminished. This, in turn, further degraded and undermined the organization he led. During a time of driving massive change, which Goss and other senior intelligence managers were attempting to do at the agency, effective and clear communication with all levels of the organization is critical. Goss failed completely at this task and the cost was high.… [H]e had been a poor fit from the beginning. In an underperforming bureaucracy such as the CIA, a strong leader, respected by the rank and file, is essential to managing needed change and modernization. On a personal note, I was not sorry to see him go.” [Wilson, 2007, pp. 247-248]

Entity Tags: Randall (“Duke”) Cunningham, Porter J. Goss, Valerie Plame Wilson, Michael Hayden, John Negroponte, Bush administration (43), Kyle Dustin “Dusty” Foggo, Carol C. Lam

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

Maurice Hinchey.Maurice Hinchey. [Source: Washington Post]A Justice Department investigation into the National Security Agency’s warrantless wiretapping program ends before it begins, because the NSA will not grant Justice Department lawyers routine security clearances. The investigation had been opened in February 2006 (see February 2, 2006) when Representative Maurice Hinchey (D-NY) asked the Justice Department’s Office of Professional Responsibility (OPR) to investigate the NSA’s warrantless surveillance of US citizens (see After September 11, 2001). Without security clearances, investigators could not examine NSA lawyers’ role in the program. OPR counsel H. Marshall Jarrett writes in a letter to Hinchey: “We have been unable to make any meaningful progress in our investigation because OPR has been denied security clearances for access to information about the NSA program. Without these clearances, we cannot investigate this matter and therefore have closed our investigation.” Jarrett and his office have made routine requests for security clearances since January, to no avail. The OPR’s investigation would have focused strictly on whether Justice Department lawyers violated ethical rules, and would not have examined the entire NSA program. Hinchey says, “This administration thinks they can just violate any law they want, and they’ve created a culture of fear to try to get away with that.” [Associated Press, 5/11/2006] Hinchey writes to Jarrett, regarding the failure to grant clearances: “We are perplexed and cannot make sense of your denial of these security clearances. Our request did not ask OPR to give us the intricate details of the NSA program; we understand that such a request would not even be within OPR’s jurisdiction. There appear to be no reasonable grounds for blocking this investigation. Not only does your denial of their request for a security clearance not make sense, it is unprecedented.” Hinchey will try, and fail, to get a bill through the Republican-controlled House Judiciary Committee to force the White House, Justice Department, and Defense Department to turn over to Congress all documents related to the closure of the OPR probe. He will write in a letter to President Bush, “If the NSA program is justified and legal, as you yourself have indicated, then there is no reason to prevent this investigation from continuing.” [US House of Representatives, 7/18/2006] In June 2006, it will be revealed that Bush personally made the decision not to grant the OPR investigators security clearances (see Late April 2006).

Entity Tags: Office of Professional Responsibility, Maurice Hinchey, US Department of Justice, George W. Bush, H. Marshall Jarrett, National Security Agency

Timeline Tags: Civil Liberties

USA Today headline.USA Today headline. [Source: CBS News]USA Today reports that “[t]he National Security Agency (NSA) has been secretly collecting the phone call records of tens of millions of Americans, using data provided by the nation’s three biggest telecommunications providers, AT&T, Verizon, and BellSouth,” according to “people with direct knowledge of the arrangement.” None of the sources would allow USA Today to identify them by name, job, or affiliation. The USA Today story claims that the NSA program “does not involve the NSA listening to or recording conversations,” but does use “the data to analyze calling patterns in an effort to detect terrorist activity,” according to their sources. One source says that the NSA program is compiling “the largest database ever assembled in the world,” with the goal of creating “a database of every call ever made” within US borders. President Bush has said that the NSA program is focused exclusively on international calls, and for the calls to be recorded, “one end of the communication must be outside the United States.” However, this is now shown not to be the case (see January 16, 2004). A US intelligence official says that the NSA program is not recording the actual phone calls themselves, but is collecting what he calls “external” data about the communications to allow the agency to emply “social network analysis” for insight into how terrorist networks are connected with one another. Another large telecommunications company, Qwest, has refused to help the NSA eavesdrop on customer calls (see February 2001, February 2001 and Beyond, and February 27, 2001). USA Today’s sources say that the NSA eavesdropping program began after the 9/11 attacks, a claim that is not bolstered by the facts (see 1997, February 27, 2000, February 27, 2000, December 2000, February 2001, February 2001, February 2001 and Beyond, February 2001, Spring 2001, April 2001, April 4, 2001, July 2001, Before September 11, 2001, and Early 2002). The sources say that the three companies agreed to provide “call-detail records,” lists of their customers’ calling histories, and updates, which would allow the agency to track citizens’ calling habits. In return, the sources say, the NSA offered to pay the firms for their cooperation. After the three firms agreed to help the agency, USA Today writes, “the NSA’s domestic program began in earnest” (see After September 11, 2001, After September 11, 2001, October 2001, September 2002, and Spring 2004). NSA spokesman Don Weber says the agency is operating strictly “within the law,” but otherwise refuses to comment. Former US prosecutor Paul Butler says that the Foreign Intelligence Surveillance Act (FISA), which governs surveillance operations by US intelligence agencies, “does not prohibit the government from doing data mining” (see 1978). White House press spokesman Dana Perino says, “There is no domestic surveillance without court approval,” and all surveillance activities undertaken by government agencies “are lawful, necessary, and required for the pursuit of al-Qaeda and affiliated terrorists.” All government-sponsored intelligence activities “are carefully reviewed and monitored,” she adds, and says that “all appropriate members of Congress have been briefed on the intelligence efforts of the United States” (see October 11, 2001 and October 25, 2001 and November 14, 2001). Don Weber, a senior spokesman for the NSA, refuses to discuss the agency’s operations, saying: “Given the nature of the work we do, it would be irresponsible to comment on actual or alleged operational issues; therefore, we have no information to provide. However, it is important to note that NSA takes its legal responsibilities seriously and operates within the law.” All three firms released similar comments saying that they would not discuss “matters of national security,” but were complying with the law in their alleged cooperation with the NSA. The Electronic Frontier Foundation (EFF) is suing AT&T for what it calls its complicity in the NSA’s “illegal” domestic surveillance program (see January 31, 2006). [USA Today, 5/11/2006]

Entity Tags: Verizon Communications, USA Today, Qwest, Paul Butler, Foreign Intelligence Surveillance Act, Jane Harman, AT&T, BellSouth, National Security Agency, Dana Perino, Don Weber

Timeline Tags: Civil Liberties

Bobby Ray Inman.Bobby Ray Inman. [Source: DefenseTech.org]Former NSA director Bobby Ray Inman says that the secret NSA program to wiretap US citizens’ phone and e-mail conversations without court warrants (see After September 11, 2001) “is not authorized.” President Bush authorized the secret wiretapping over four years ago (see Early 2002), a program only revealed at the end of 2005 (see December 15, 2005). Since the program was revealed, it has created tremendous controversy over its possible illegality and its encroachment on fundamental American civil liberties. Bush and other White House officials have repeatedly asserted that the program is legal, mainly because Bush and his officials assert that the president has the authority to implement such a program (see December 15, 2005); Bush also insists, as recently as the day before Inman’s statement, that the program is only being used to spy on terrorists and the privacy of US citizens is being “fiercely protected,” a statement that does not jibe with the facts. [Democracy Now!, 5/12/2006]

Entity Tags: National Security Agency, Al-Qaeda, Bobby Ray Inman, Bush administration (43), George W. Bush

Timeline Tags: Civil Liberties

The Justice Department files a brief with the US District Court of Northern California asking that the Electronic Frontier Foundation (EFF)‘s lawsuit against AT&T (see January 31, 2006) be dismissed on the grounds that it would breach “state secrets” vital to “national security.” The Justice Department publicly announced its intentions of asking that the lawsuit be dismissed on those grounds two weeks ago (see April 28, 2006). EFF is suing AT&T for compromising its customers’ privacy by colluding with the National Security Agency (NSA) in that agency’s domestic surveillance program. The lawsuit is Hepting, et al v. AT&T, often shortened in the media to Hepting v. AT&T. The government submits a number of secret documents to Judge Vaughn Walker as evidence, along with a heavily redacted document submitted for public perusal. Other documents include affidavits from the Director of National Intelligence, John Negroponte, and the head of the NSA, Lieutenant General Keith Alexander. Some observers believe that Walker, a conservative appointed to the bench by President George H.W. Bush, will quickly comply with the government’s request. However, as AT&T whistleblower Mark Klein (see December 15-31, 2005 and July 7, 2009), who is working with EFF on the lawsuit (see Early January 2006), will later write, Vaughn is independent-minded and possessed of a “strong libertarian bent,” and will not be so prone to do the government’s bidding as some believe. [Klein, 2009, pp. 72-73] Walker’s first hearing on the brief will be held four days later (see May 17, 2006).

Entity Tags: John Negroponte, AT&T, Electronic Frontier Foundation, Keith Alexander, Mark Klein, US Department of Justice, Vaughn Walker, National Security Agency

Timeline Tags: Civil Liberties

Ira Winkler.Ira Winkler. [Source: Canadian Broadcasting Corporation]Former NSA analyst Ira Winkler, author of the 2005 book Spies Among Us, writes of his disgust with the NSA’s domestic surveillance program, saying that because it is warrantless, it is illegal. He argues the program violates both the NSA’s rules of engagement and its long-term missions.
Warrantless Surveillance is Illegal - Securing warrants under the Foreign Intelligence Surveillance Act is easily done, Winkler says: “FISA blocks no legitimate acquisition of knowledge. It doesn’t even slow the process down.” The problem, Winkler says, is that the program is so large that securing FISA warrants for every communication the NSA monitors “would [take] an army of lawyers to get all the warrants they’d need to be in compliance with FISA.” However: “[T]he law is the law. No president has the right to pick and choose which laws they find convenient to follow.” President Bush could have asked Congress to amend the FISA laws: “After all, after 9/11 Congress passed a wide variety of laws (without, for the most part, reading them) that were supposed to prevent another attack. They could have easily slipped something modifying FISA into all of that legislation. They did not, though recent revelations about this administration’s use of signing statements may indicate that they simply didn’t want to raise the possibility of questions.” Merely ignoring FISA “is illegal,” Winkler writes.
Weakens National Security - Another issue is national security. Not obtaining warrants actually weakens natural security, he argues, “since the process of obtaining the warrants has an effect on quality control.” For example: “To date, FBI agents have been sent out to do thousands of investigations based on this warrantless wiretapping. None of those investigations turned up a legitimate lead. I have spoken to about a dozen agents, and they all roll their eyes and indicate disgust with the man-years of wasted effort being put into physically examining NSA ‘leads.’ This scattershot attempt at data mining drags FBI agents away from real investigations, while destroying the NSA’s credibility in the eyes of law enforcement and the public in general. That loss of credibility makes the NSA the agency that cried wolf—and after so many false leads, should they provide something useful, the data will be looked at skeptically and perhaps given lower priority by law enforcement than it would otherwise have been given.” Winkler says the NSA’s claim that it does not retain any personal information is ludicrous. “Frankly, you have to be a complete moron to believe that,” he writes. “It is trivial to narrow down access to a phone number to just a few members of a household, if not in fact to exactly one person.”
Extortion - And the warrantless surveillance is not the only illegal action taken by the government. If the government did threaten one telecom firm, Qwest, for not cooperating (see February 2001), “[t]hat’s extortion—another crime.” Winkler writes that both Congress and the American people must demand answers, or the White House and the NSA will continue to usurp our freedom under the cloak of protecting freedoms.
Arguments For Program are Specious - Winkler says the arguments for the program that he hears are groundless. He hears three main threads:
bullet “I have nothing to worry about so I don’t care if they investigate me.” Winkler points out that plenty of people have been investigated and incarcerated in the US and abroad without doing anything wrong: “I believe that Saddam Hussein would cheerfully agree with the tired allegation that if you did nothing wrong, you shouldn’t mind the government looking at your calls. I think Lenin, Stalin, Hitler and the Chinese government would also agree with that line of thought. Is this the company we consent to keep in the name of safety?”
bullet “[W]e need to do everything we can to protect ourselves.” Protecting ourselves, Winkler argues, means letting law enforcement work to protect US citizens against real, ongoing crimes. The government is “watching for dragons while very real snakes multiply freely in our midst.”
bullet “[T]he NSA isn’t listening to the content of the calls, so there’s no harm.” Aside from the fact that Winkler believes the NSA is lying about not listening to the calls themselves, he says: “[The NSA] doesn’t need to hear your chatter to invade your privacy. By simply tying numbers together—an intelligence discipline of traffic analysis—I assure you I can put together a portrait of your life. I’ll know your friends, your hobbies, where your children go to school, if you’re having an affair, whether you plan to take a trip and even when you’re awake or asleep. Give me a list of whom you’re calling and I can tell most of the critical things I need to know about you.” The NSA is made up of mostly “good and honest people,” but it has “more than its share of bitter, vindictive mid- and senior-level bureaucrats. I would not trust my personal information with these people, since I have personally seen them use internal information against their enemies.” Winkler reminds his readers that the Bush administration deliberately outed CIA agent Valerie Plame Wilson because her husband dared debunk an administration claim about Iraq (see November 20, 2007), and tried to undermine the credibility of former counterterrorism chief Richard Clarke when he spoke out against the administration (see March 24, 2004). The NSA could easily provide the administration with damaging information about other administration enemies.
'Against Everything I Was Taught' - “NSA domestic spying is against everything I was ever taught working at the NSA,” Winkler writes. “I might be more for it if there was any credible evidence that this somehow provides useful information that couldn’t otherwise be had. However, the domestic spying program has gotten so massive that the well-established process of getting a warrant cannot be followed—and quantity most certainly doesn’t translate to quality. Quite the opposite.” The terrorists number in the hundreds, Winkler writes, but “the NSA is collecting data on hundreds of millions of people who are clearly not the enemy. These numbers speak for themselves.” [Computerworld, 5/16/2006]

Entity Tags: Qwest, George W. Bush, Foreign Intelligence Surveillance Act, Federal Bureau of Investigation, Ira Winkler, National Security Agency, Valerie Plame Wilson, Saddam Hussein, Richard A. Clarke, Vladimir Lenin, Josef Stalin

Timeline Tags: Civil Liberties

Judge Vaughn Walker of the US District Court of Northern California holds a hearing on the government’s request to have the Electronic Frontier Foundation (EFF)‘s lawsuit against AT&T dismissed (see May 13, 2006). The Justice Department says the lawsuit must be dismissed on the grounds that it would breach “state secrets” vital to “national security” if allowed to go forward. EFF is suing AT&T for compromising its customers’ privacy by colluding with the National Security Agency (NSA) in that agency’s domestic surveillance program (see January 31, 2006). AT&T whistleblower Mark Klein (see December 15-31, 2005 and July 7, 2009), who is working with EFF on the lawsuit (see Early January 2006), attends the hearing along with a small phalanx of lawyers; a woman slips a piece of paper into his hand containing her name and the telephone number for CBS News’s 60 Minutes. The AT&T lawyers are furious at Klein because an online news site, Wired News, just published his 2005 memo containing evidence against AT&T that the firm wants suppressed (see May 17, 2006). Klein will later write that he has no knowledge of how Wired News received the document, though the AT&T lawyers believe he supplied it to Wired News, and he will say he is pleased at the publication. (Wired News will later explain why it chose to publish the document—see May 22, 2006.) In the hearing, Walker refuses to order Klein to return the documents to AT&T, noting that Klein is not a plaintiff in the case and therefore Walker lacks the judicial authority to make such an order. Walker advises AT&T if it wants the documents back, it will have to sue Klein for their return. EFF lawyer Cindy Cohn challenges the government’s claim that the lawsuit should be dismissed on “state secrets” grounds, arguing that “this can be litigated without reference to any state secrets.… The question is whether the information has been acquired by AT&T in order to give it to the government and whether it’s been divulged to the government and what the government does with that information afterward, which I think could implicate state secrets, is completely irrelevant, or not necessary for us to pursue this case.” The motion to dismiss is not decided in this hearing. [Klein, 2009, pp. 73-78]

Entity Tags: US Department of Justice, AT&T, Cindy Cohn, Mark Klein, Electronic Frontier Foundation, Vaughn Walker, National Security Agency, Wired News

Timeline Tags: Civil Liberties

The lawsuit brought forth by Khalid el-Masri and the ACLU (see December 6, 2005) is dismissed by US District Judge T.S. Ellis III in Alexandria, who rules that the state secrets privilege (see March 9, 1953) was properly invoked by the US Justice Department. The judge argues that Masri’s “private interests must give way to the national interest in preserving state secrets.” [Washington Post, 5/19/2006]

Entity Tags: American Civil Liberties Union, Central Intelligence Agency, T.S. Ellis III, Khalid el-Masri

Timeline Tags: Torture of US Captives, Civil Liberties

Attorney General Alberto Gonzales says that the government has the right to prosecute journalists for publishing classified information. “There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility,” he says during an ABC News interview. “That’s a policy judgment by the Congress in passing that kind of legislation. We have an obligation to enforce those laws. We have an obligation to ensure that our national security is protected.” Asked if he is considering prosecuting the New York Times for revealing the Bush administration’s warrantless wiretapping program (see December 15, 2005), Gonzales says the Justice Department is trying to determine “the appropriate course of action in that particular case.” He continues: “I’m not going to talk about it specifically. We have an obligation to enforce the law and to prosecute those who engage in criminal activity.” Experts believe that Gonzales is probably referring to the 1917 Espionage Act, which prohibits government officials from passing classified information to anyone without proper clearance; those same experts say that the Espionage Act was never intended to apply to the press. Furthermore, journalists are protected from such prosecution by the First Amendment. Gonzales says that while the Bush administration respects the right of freedom of the press, “it can’t be the case that that right trumps over the right that Americans would like to see, the ability of the federal government to go after criminal activity.” [New York Times, 5/22/2006] Thirty years ago, then-White House chief of staff Dick Cheney recommended such prosecution against a journalist who revealed the existence of a Cold War-era submarine program (see May 25, 1975). In 2007, reporter and author Charlie Savage will write that in 1975, the attorney general had scuttled the idea. Now, the attorney general is embracing the idea. [Savage, 2007, pp. 175-176]

Entity Tags: US Department of Justice, Alberto R. Gonzales, Bush administration (43), New York Times, Charlie Savage, Richard (“Dick”) Cheney

Timeline Tags: Civil Liberties

Wired News logo.Wired News logo. [Source: Delve Networks]Evan Hansen, the editor in chief of Wired News, an online technical news site, explains why the site published a set of documents from AT&T whistleblower Mark Klein (see December 15-31, 2005 and July 7, 2009). Klein is working with the Electronic Frontier Foundation (EFF) in that organization’s lawsuit against AT&T for invading its customers’ privacy by taking part in the National Security Agency’s warrantless domestic wiretap operation (see January 31, 2006). The presiding judge, Vaughn Walker, has denied requests from the EFF and a number of news organizations to unseal the documents and make them public. For its part, AT&T wants the documents to remain sealed, claiming they are proprietary and that it would suffer harm if they were disclosed (see April 6-8, 2006). Hansen and the Wired News senior staff disagree. “In addition,” Hansen writes, “we believe the public’s right to know the full facts in this case outweighs AT&T’s claims to secrecy.” Hansen erroneously says that the documents seem “to be excerpted from material that was later filed in the lawsuit under seal,” though “we can’t be entirely sure, because the protective order prevents us from comparing the two sets of documents.” Klein later writes that the Wired News staff “confused my 2004 memo (see January 16, 2004) with my court-sealed legal declaration” (see February 23-28, 2006); even so, Klein will write, “it was true that all of the AT&T documents were still under court seal.” Hansen says Wired News reporter Ryan Singel received the Klein documents from “an anonymous source close to the litigation.” Hansen also writes: “We are filing a motion to intervene in the case in order to request that the court unseal the evidence, joining other news and civil rights organizations that have already done so, including the EFF, the San Francisco Chronicle, the Los Angeles Times, the San Jose Mercury News, the Associated Press, and Bloomberg. Before publishing these documents we showed them to independent security experts, who agreed they pose no significant danger to AT&T. For example, they do not reveal information that hackers might use to easily attack the company’s systems.” Hansen writes that Wired’s publication of the documents does not violate Walker’s gag order concerning the documents’ publication, as the order specifically bars the EFF and its representatives—and no one else—from publishing or discussing them. “The court explicitly rejected AT&T’s motion to include Klein in the gag order and declined AT&T’s request to force the EFF to return the documents,” he notes (see May 17, 2006). [Wired News, 5/22/2006; Klein, 2009, pp. 75]

Entity Tags: Vaughn Walker, AT&T, Electronic Frontier Foundation, Evan Hansen, Mark Klein, Ryan Singel, Wired News, National Security Agency

Timeline Tags: Civil Liberties

AT&T lawyers accidentally release sensitive information in their defense of a lawsuit accusing AT&T and two other telecommunications firms of illegally cooperating with an NSA wiretapping program (see January 31, 2006). They release a 25-page legal brief, heavily redacted with thick black lines intended to obscure portions of three pages, in PDF (Portable Data File) format. But some software programs can read the text. The redacted information offers alternative reasons why AT&T has a secret room in its downtown San Francisco switching center designed to monitor Internet and telephone traffic (see February 2001). The Electronic Frontier Foundation, who filed the lawsuit, says the room is used by the NSA surveillance program. The redacted sections argue that the room could be used for “legitimate Internet monitoring systems, such as those used to detect viruses and stop hackers.” Another argument reads, “Although the plaintiffs ominously refer to the equipment as the ‘Surveillance Configuration,’ the same physical equipment could be utilized exclusively for other surveillance in full compliance with” the Foreign Intelligence Surveillance Act (FISA). The court filing is not classified, and no information relating to the actual operations of the NSA’s surveillance program is disclosed. [US District Court, Northern District of California, San Francisco Division, 5/24/2006 pdf file; US District Court, Northern District of California, San Francisco Division, 5/24/2006; CNET News, 5/26/2006]

Entity Tags: National Security Agency, Electronic Frontier Foundation, AT&T

Timeline Tags: Civil Liberties

The Bush administration submits a legal brief arguing that the Electronic Frontier Foundation’s lawsuit against AT&T, alleging that firm cooperated with the NSA’s domestic surveillance program (see January 31, 2006), should be thrown out of court because of the government’s “state secrets” privilege (see March 9, 1953). Justice Department lawyers want Judge Vaughn Walker to examine classified documents that they say will convince him to dismiss the lawsuit. However, the government does not want the defense lawyers to see that material. “No aspect of this case can be litigated without disclosing state secrets,” the government argues. “The United States has not lightly invoked the state secrets privilege, and the weighty reasons for asserting the privilege are apparent from the classified material submitted in support of its assertion.” [CNET News, 5/26/2006]

Entity Tags: US Department of Justice, Electronic Frontier Foundation, AT&T, Vaughn Walker, Bush administration (43)

Timeline Tags: Civil Liberties

Almost two years after resigning from the CIA (see Early November, 2004), Stephen Kappes agrees to return as deputy director for the new agency head, General Michael Hayden. Kappes is leaving his position as the chief operating officer for ArmorGroup International, a British security firm, to take the position. He is a former Marine with 25 years of service in the CIA. He is fluent in Russian and Farsi, and took part in agency operations against Iran while serving in the Frankfurt, Germany, station. After the 1991 Gulf War, Kappes reopened the CIA’s Kuwait station. He also was a key participant in the agency’s attempts to find information on nuclear black marketeer A. Q. Khan. He was deputy director for operations under former CIA chief George Tenet before coming into conflict with Tenet’s replacement, Porter Goss (see September 24, 2004). Kappes was one of the first of many CIA officials to leave the agency under Goss’s tenure, either by resignation or by firing as Goss attempted to purge the agency of all but Bush administration loyalists (see November-December 2004). [New York Times, 5/30/2006; Time, 6/1/2006] In May, CNN reported that Kappes was being offered the job in part to assuage concerns among members of the Senate Intelligence Committee, who doubt Hayden’s ability to lead the agency and question whether he will run it in a nonpartisan fashion. Many observers see Kappes’s return both as a repudiation of Goss, who abruptly resigned over allegations of involvement with prostitutes and bribery schemes (see May 5, 2006), and as a potential brake on any possible instances of Hayden putting his loyalty to the Bush administration over his loyalties to the CIA and the nation. John Negroponte, the director of national intelligence, said when Kappes’s nomination for the position was announced: “I believe that Mike’s appointment, and I think together if the appointment of Steve Kappes goes through, I think that’s going to be a boost for the morale out there. And I think they’re going to welcome this new leadership.” Hayden himself has said that Kappes’s return is a signal that “amateur hour” is over. Former clandestine CIA agent Milt Bearden says, “The simple fact is that he is a very solid choice to come to the agency at a time when it is extremely wobbly.” And a former top CIA official says: “The really good people are happy he’s coming back. The ones who are scared of him should be scared of him.” [CNN, 5/9/2006; New York Times, 5/30/2006]

Entity Tags: Michael Hayden, ArmorGroup International, John Negroponte, Stephen Kappes, Central Intelligence Agency, Senate Intelligence Committee, Milt Bearden

Timeline Tags: Civil Liberties

George Terwilliger, a former deputy attorney general under George H. W. Bush, argues that the current Bush administration’s controversial data mining program (see Late 1999 and After September 11, 2001) is not illegal. Terwilliger tells the conservative National Review, “I think it’s fair to say that the statutes contemplate the transfer of this generic type of data much more on a case-by-case rather than a wholesale basis,” meaning that the law calls for a court order only in cases when the government is making a targeted request for information. But, he adds, “I don’t see anything in the statute that forbids such a wholesale turnover.” Terwilliger’s argument echoes the arguments of the Bush Justice Department, which argues that the data mining program—part of the NSA’s “Stellar Wind” surveillance program (see Spring 2004 and December 15, 2005)—does not technically constitute “electronic surveillance” under the law. Both the Fourth Amendment and the Foreign Intelligence Surveillance Act, as interpreted by the courts, define such actions as “electronic surveillance,” according to a number of legal experts, including law professor Orin Kerr. And, Ars Technica reporter Julian Sanchez notes in 2009, “the Stored Communications Act explicitly makes it a crime to ‘knowingly divulge a record or other information pertaining to a subscriber to or customer of such service… to any governmental entity.’” Sanchez will call Terwilliger’s argument “very strange,” but will note that Terwilliger is the attorney for then-Attorney General Alberto Gonzales and “a prominent defender of the administration’s surveillance policies.” Sanchez will conclude that while the argument “might pass for clever in a high school debate round… [i]t would be deeply unsettling if it [passes] for anything more in the halls of power.” [National Review, 6/5/2006; Ars Technica, 12/16/2008]

Entity Tags: US Department of Justice, Alberto R. Gonzales, ’Stellar Wind’, Bush administration (43), National Security Agency, Foreign Intelligence Surveillance Act, Julian Sanchez, George Terwilliger, Orin S. Kerr

Timeline Tags: Civil Liberties

The dead Abu Musab al-Zarqawi.The dead Abu Musab al-Zarqawi. [Source: US army]Abu Musab al-Zarqawi, the supposed leader of al-Qaeda in Iraq, is apparently killed in a US airstrike north of Baghdad. There are contradictory details of what exactly happened in the airstrike, and three days later the Washington Post will report that “circumstances surrounding the killing [remain] cloudy.” [Washington Post, 6/10/2006] His killing is hailed by US and Iraqi officials as the most significant public triumph for US-allied forces since the 2003 capture of Saddam Hussein. For instance, Defense Secretary Rumsfeld calls him “the leading terrorist in Iraq and one of three senior al-Qaeda leaders worldwide.” The Washington Post calls al-Zarqawi the “mastermind behind hundreds of bombings, kidnappings and beheadings in Iraq.” [Washington Post, 6/8/2006; Washington Post, 6/10/2006] These pronouncements and media reports ignore a revelation made two months earlier by the Washington Post that the US military has been engaged in a propaganda campaign to exaggerate al-Zarqawi’s importance. The newspaper had reported that Zarqawi wasn’t behind nearly as many attacks as commonly reported (see October 4, 2004 and April 10, 2006). Even a Washington Post article about the propaganda surrounding al-Zarqawi published two days after his death will fail to mention any of the details provided in the Post’s original reporting on the campaign. [Washington Post, 6/10/2006] Later in the month, an audiotape surfaces in which bin Laden supposedly praises al-Zarqawi as a martyr (see June 30, 2006), calling him a “brave knight” and a “lion of jihad.” US officials say the tape is genuine, however it should be noted that a letter from 2004 said to tie al-Zarqawi to al-Qaeda leadership is believed by many experts to be a US-government promoted hoax (see April 10, 2006). [Washington Post, 6/30/2006] Al-Zarqawi did pledge loyalty to bin Laden in 2004, but they don’t appear to have been closely linked before then and there even are doubts about how close their relationship was after that time (see October 17, 2004).

Entity Tags: Al-Qaeda, Abu Musab al-Zarqawi, Donald Rumsfeld, Osama bin Laden

Timeline Tags: Complete 911 Timeline, Iraq under US Occupation

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