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The UN Special Rapporteur on the independence of judges and lawyers, Param Cumaraswamy—still awaiting a response from the US government to his urgent appeal (see November 13, 2001) relating to Bush’s November 13, 2001 military order (see November 13, 2001) —says: “The Bush administration has not been very responsive to criticisms, and they have become a little intolerant to criticisms about themselves, but they are very free to criticize other governments when they violate human rights norms.” [BBC Radio 4, 7/13/2003]

Entity Tags: Bush administration (43), Amnesty International, Charles Anteby

Timeline Tags: Torture of US Captives

Rohan Gunaratna.Rohan Gunaratna. [Source: George Washington University]Counterterrorism expert Rohan Gunaratna claims to know what was discussed at the al-Qaeda summit held in Malaysia in January 2000 (see January 5-8, 2000). Gunaratna has been described as an “ad hoc adviser to US intelligence officials,” and it is believed he has seen top secret transcripts of 9/11 mastermind Khalid Shaikh Mohammed’s (KSM) recent interrogations in CIA prisons. It has not been explained how he saw such transcripts, but the CIA has not disputed the assertion that he saw them. [Bergen Record, 7/10/2003] In public testimony before the 9/11 Commission, Gunaratna says that “Khalid Shaikh Mohammed chaired that meeting [in Malaysia]. The first two hijackers to enter the United States, they were present at that meeting. So the 9/11 operation is an extension of old Plan Bojinka (see January 6, 1995). So the players of old plan Bojinka, they were not all arrested.… If you read the interrogation of [KSM], who is now in US custody, he has very clearly stated how 9/11 was planned, that it originated from [Bojinka].” However, the 9/11 Commissioners do not ask him any follow-up questions about this. [9/11 Commission, 7/9/2003 pdf file] In the 9/11 Commission’s final report, there will be no mention of any suggestions KSM was at the Malaysia summit or any clear accounting as to who all the attendees were. Their report will also downplay any connections between the 1995 Bojinka plot and the 9/11 plot, which they will claim began in 1999. [9/11 Commission, 7/24/2004, pp. 153-154] However, later on the same day as his testimony, Gunaratna will give more details of what he claims to have learned from KSM’s interrogations in an interview with a reporter. He says that at the summit KSM said al-Qaeda operatives would need to learn to fly commercial airliners in the US as part of a “suicide operation.” However, although KSM had already agreed on the targets with bin Laden, the World Trade Center and the Pentagon were not mentioned at the summit. KSM “was careful not to discuss all the specific plans at that meeting.” The reporter who interviewed Gunaratna notes that “some US intelligence officials” have “pooh-poohed the significance of the Malaysian meeting as a link to Sept. 11,” and if KSM was at the meeting, that “further underscores how the CIA missed an opportunity” to stop the 9/11 attacks. [Bergen Record, 7/10/2003] The CIA had Malaysian intelligence photograph and film the attendees of the summit as they were coming and going, but apparently there was no attempt to monitor what was said in the summit meetings (see January 5-8, 2000 and Shortly After). If Gunaratna is correct, it suggests that the CIA and 9/11 Commission may have withheld some details of KSM’s interrogations to the public that are embarrassing to US intelligence agencies. Note also that doubts have been expressed about the reliability of KSM’s testimony, which was at least partly obtained through the use of torture (see June 16, 2004).

Entity Tags: Central Intelligence Agency, Al-Qaeda, 9/11 Commission, Khalid Shaikh Mohammed, Rohan Gunaratna

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

An organization called Veteran Intelligence Professionals for Sanity (VIPS) writes an open letter to President Bush entitled “Intelligence Unglued,” where they warn that unless Bush takes immediate action, the US intelligence community “will fall apart—with grave consequences for the nation.” They say that it is clear his National Security Adviser, Condoleezza Rice, and not CIA Director George Tenet, was responsible for the now-infamous “sixteen words” in his January State of the Union address (see Mid-January 2003 and 9:01 pm January 28, 2003). “But the disingenuousness persists,” they write. “Surely Dr. Rice cannot persist in her insistence that she learned only on June 8, 2003, about former ambassador Joseph Wilson’s mission to Niger in February 2002, when he determined that the Iraq-Niger report was a con-job” (see July 6, 2003). “Rice’s denials are reminiscent of her claim in spring 2002 that there was no reporting suggesting that terrorists were planning to hijack planes and slam them into buildings (see May 16, 2002). In September, the joint Congressional committee on 9/11 came up with a dozen such reports” (see December 24, 1994 and January 6, 1995). It is not only Rice’s credibility that has suffered, they write, but Secretary of State Colin Powell’s as well, “as continued non-discoveries of weapons in Iraq heap doubt on his confident assertions to the UN” (see February 5, 2003). Ultimately, they write, it is Bush’s credibility at stake much more than that of his advisers and cabinet members. They lay the blame for the “disingenuousness” from the various members of the administration at the feet of Vice President Dick Cheney: it was Cheney’s office who sent Wilson to Niger (see (February 13, 2002)), it was Cheney who told the Veterans of Foreign Wars that Saddam Hussein was about to produce a nuclear weapon (see August 26, 2002), all with intelligence he and his staff knew to be either unreliable or outright forgeries—a “deep insult to the integrity of the intelligence process,” they write—it was Cheney and his staff who pressured CIA analysts to produce “cherry-picked” intelligence supporting their desire for war, it was Cheney and his staff who “cooked” the prewar National Intelligence Estimate on Iraq (see October 1, 2002). Bad enough that false intelligence was used to help craft Bush’s State of the Union address, they write, but that “pales in significance in comparison with how it was used to deceive Congress into voting on October 11 to authorize you to make war on Iraq” (see October 10, 2002). VIPS recommends three things for Bush to implement:
bullet Bring an immediate end to White House attempts to exculpate Cheney from what they write is his obvious guilt and ask for his resignation: “His role has been so transparent that such attempts will only erode further your own credibility. Equally pernicious, from our perspective, is the likelihood that intelligence analysts will conclude that the way to success is to acquiesce in the cooking of their judgments, since those above them will not be held accountable. We strongly recommend that you ask for Cheney’s immediate resignation.”
bullet Appoint General Brent Scowcroft, the chair of the Foreign Intelligence Advisory Board, to head “an independent investigation into the use/abuse of intelligence on Iraq.”
bullet Bring UN inspectors back into Iraq. “This would go a long way toward refurbishing your credibility. Equally important, it would help sort out the lessons learned for the intelligence community and be an invaluable help to an investigation of the kind we have suggested you direct Gen. Scowcroft to lead.” [Salon, 7/16/2003]

Entity Tags: George J. Tenet, George W. Bush, Richard (“Dick”) Cheney, Veteran Intelligence Professionals for Sanity, Brent Scowcroft, Colin Powell, Condoleezza Rice

Timeline Tags: Niger Uranium and Plame Outing

Senator John D. Rockefeller.Senator John D. Rockefeller. [Source: ViewImages.com]John D. Rockefeller (D-WV), the ranking member of the Senate Intelligence Committee, learns of the secret NSA warrantless wiretapping program against US citizens (see Early 2002) in a secret briefing for himself, the chairman of the committee, and the chairman and ranking member of the House Intelligence Committee. Hours later, Rockefeller sends a handwritten letter to Vice President Cheney expressing his concerns about the potential illegality of the program, concerns he apparently expressed in the briefing as well. Rockefeller will not release the letter publicly until December 19, 2005, four days after the New York Times publishes an article revealing the program’s existence (see December 15, 2005). Disturbed both by the information he was given and the information that was obviously being withheld, Rockefeller writes in part: “Clearly the activities we discussed raise profound oversight issues.… Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own [Cheney had prohibited Rockefeller and the three other lawmakers in the briefing from consulting with their staff experts], I feel unable to fully evaluate, much less endorse these activities. As I reflected on the meeting today, and the future we face, John Poindexter’s TIA [Total Information Awareness (see March 2002)] project sprung to mind, exacerbating my concern regarding the direction the administration is moving with regard to security, technology, and surveillance. Without more information and the ability to draw on any independent legal or technical expertise, I simply cannot satisfy lingering concerns raised by the briefing we received.” [Democratic Party, 12/19/2005; Savage, 2007, pp. 115] Rockefeller also notes that he is not at liberty to do anything about his concerns, since he is legally bound to obey the secrecy rules the White House has invoked, but he wants his concerns noted. [Savage, 2007, pp. 116] It is unclear whether Rockefeller ever receives a reply. Rockefeller is apparently unaware of evidence showing that domestic surveillance may have begun 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: New York Times, Richard (“Dick”) Cheney, John D. Rockefeller, John Poindexter, Total Information Awareness, National Security Agency

Timeline Tags: Civil Liberties

Mohammed Nazir Bin Lep (a.k.a. Lillie).Mohammed Nazir Bin Lep (a.k.a. Lillie). [Source: Defense Department]Hambali (a.k.a. Riduan Isamuddin) is arrested in Thailand in a joint US-Thai operation. He has been considered the operational leader of al-Qaeda in Southeast Asia. He was involved in the Bojinka plot in 1995, attended the January 2000 al-Qaeda summit in Malaysia (see January 5-8, 2000), and was said to be involved in the 2002 bombing of two nightclubs in Bali, Indonesia (see October 12, 2002), the 2003 bombing of a Marriott Hotel in Jakarta, Indonesia (see August 5, 2003), and other similar acts. He is taken into US custody and is said to quickly and fully cooperate with his captors. [Chicago Tribune, 12/7/2003] According to the Washington Post, at some point he will be transferred to the US naval base at the British island colony of Diego Garcia, where the CIA is believed to have a secret interrogation center. [Washington Post, 12/17/2004; Washington Post, 1/2/2005, pp. A01] Two of Hambali’s associates - Mohamad Farik Amin (a.k.a. Zubair), and Mohammed Nazir Bin Lep (a.k.a. Lillie) - are arrested with him. Both are Malaysians and are said to be al-Qaeda operatives. Supposedly they were members of a four person suicide squad working for Hambali and Khalid Shaikh Mohammed to hijack an airplane (see October 2001-February 2002). [Time, 10/6/2003] The US will later classify both of them, and Hambali, as about a dozen of the top al-Qaeda operatives in US custody (see September 2-3, 2006).

Entity Tags: United States, Thailand, Hambali, Mohamad Farik Amin, Khalid Shaikh Mohammed, Mohammed Nazir Bin Lep

Timeline Tags: Torture of US Captives, Complete 911 Timeline

Shortly after he is arrested in Thailand (see August 12, 2003), al-Qaeda leader Hambali is taken to an unknown location and tortured. [MSNBC, 9/13/2007]

Entity Tags: Central Intelligence Agency, Hambali

Timeline Tags: Torture of US Captives, Complete 911 Timeline

Senator Patrick Leahy responds to Department of Defense William J. Haynes’s letter of June 25, 2003 (see June 25, 2003). He asks him to explain how the standards he outlined are implemented and communicated to US soldiers and asks for assurances that other agencies, including the CIA, abide by the same standards as the US military. [Human Rights Watch, 5/7/2004]

Entity Tags: Patrick J. Leahy, William J. Haynes

Timeline Tags: Torture of US Captives

The legal experts at the Office of the Staff Judge Advocate (OSJA) issue a memorandum amending the set of interrogation rules included in a September 10 memo (see September 10, 2003) by military legal experts in Iraq. The additional methods included in that memo can only be used with prior approval by Lieutenant General Ricardo Sanchez on a case-by-case basis, the OSJA document says. [US Department of Defense, 8/23/2004 pdf file] Like Major General Geoffrey Miller, the OSJA stresses the importance of collaboration between MPs and intelligence personnel. It also provides “safeguards such as legal reviews of the interrogation plans and scrutiny of how they were carried out,” the Washington Post later reports. [Washington Post, 6/12/2004] Additionally, the memo discusses how the Arab fear of dogs can be exploited. [US Department of Defense, 8/23/2004 pdf file] According to a later report (see August 25, 2004) by General George R. Fay, interrogators at Abu Ghraib immediately adopt the new set of rules. But Staff Judge Advocate Colonel Mark Warren will recall that the memo is not implemented until its approval by the US Central Command (CENTCOM). [US Department of Defense, 8/23/2004 pdf file] Evidence, however, supports the Fay report. “After mid-September 2003,” Fay will write, “all [s]oldiers assigned to Abu Ghraib had to read a memorandum titled IROE [Interrogations Rules of Engagement], acknowledging they understood the ICRP, and sign a confirmation sheet indicating they had read and understood the ICRP.” [US Department of Defense, 8/23/2004 pdf file] According to classified documents uncovered by the Senate Armed Services Committee (see April 21, 2009), CENTCOM lawyers begin objecting to the policies almost immediately. One e-mail, from a CENTCOM lawyer to a Staff Judge Advocate, warns, “Many of the techniques appear to violate [Geneva Conventions] III and IV and should not be used.” [Huffington Post, 4/21/2009]

Entity Tags: George R. Fay, Senate Armed Services Committee, Geoffrey D. Miller, Marc Warren, Ricardo S. Sanchez

Timeline Tags: Torture of US Captives

An Associated Press (AP) report provides details of what alleged 9/11 mastermind Khalid Shaikh Mohammed (KSM) has apparently told his CIA interrogators. The article, based on “interrogation reports” reviewed by the AP, makes the following claims:
bullet KSM worked on the Bojinka plot in 1994 and 1995 in the Philippines with Ramzi Yousef, Abdul Hakim Murad, and Wali Khan Amin Shah;
bullet After Yousef and Murad were captured (see January 6, 1995 and February 7, 1995), KSM began to devise a new plot that focused on hijackings on US soil;
bullet KSM first pitched the 9/11 plot to Osama bin Laden in 1996. He wanted bin Laden “to give him money and operatives so he could hijack 10 planes in the United States and fly them into targets”;
bullet After bin Laden agreed in principle, the original plan, which called for hijacking five commercial jets on each US coast, was modified several times. Some versions even had the planes being blown up in mid-air, possibly with the aid of shoe bombs. Bin Laden scrapped various parts of the plan, including attacks on both coasts and hijacking or bombing some planes in East Asia as well;
bullet The original four al-Qaeda operatives bin Laden offered KSM for the plot were eventual hijackers Nawaf Alhazmi and Khalid Almihdhar, as well as Khallad bin Attash and Abu Bara al-Yemeni. “All four operatives only knew that they had volunteered for a martyrdom operation involving planes,” one interrogation report apparently states;
bullet The first major change to the plans occurred in 1999 when the two Yemeni operatives could not get US visas (see April 3, 1999). [Associated Press, 9/21/2003] (According to the 9/11 Commission Report, KSM actually says Abu Bara al-Yemeni never applied for a US visa); [9/11 Commission, 7/24/2004, pp. 492]
bullet Bin Laden then offered KSM additional operatives, including a member of his personal security detail;
bullet At that time the plot was to hijack a small number of planes in the United States and East Asia and either have them explode or crash into targets simultaneously;
bullet In 1999, the four original operatives picked for the plot traveled to Afghanistan to train at one of bin Laden’s camps, where they received specialized commando training (see Late 1999);
bullet Al-Qaeda’s Malaysia summit (see January 5-8, 2000) was, according to the report, a “key event in the plot,” although it does not say whether KSM was physically present. On the other hand, it confirms the presence of Jemaah Islamiyah leader Hambali;
bullet KSM communicated with Alhazmi and Almihdhar while they were in the US using Internet chat software;
bullet KSM has never heard of Omar al-Bayoumi, an apparent Saudi intelligence agent who provided some assistance to future 9/11 hijackers Khalid Almihdhar and Nawaf Alhazmi when they arrived in California. Neither did he arrange for anyone else in the US to assist Almihdhar and Alhazmi when they arrived in California. Despite this, Almihdhar and Alhazmi soon made contact with a network of people linked to Saudi intelligence services (see January 15-February 2000 and June 23-July 2001);
bullet Bin Laden canceled the East Asian portion of the attacks in the spring of 2000, because, according to a quote from KSM contained in a report, “it would be too difficult to synchronize” attacks in the United States and Asia;
bullet Around that time, KSM reached out to Jemaah Islamiyah, an al-Qaeda affiliate in Southeast Asia. He began “recruiting JI operatives for inclusion in the hijacking plot as part of his second wave of hijacking attacks to occur after Sept. 11,” one summary reportedly says;
bullet Zacarias Moussaoui also went to Malaysia in the run-up to 9/11 (see September-October 2000);
bullet In its final stages, the plan called for as many as 22 terrorists and four planes in a first wave, followed by a second wave of suicide hijackings that were to be aided possibly by al-Qaeda allies in Southeast Asia;
bullet The hijacking teams were originally made up of members from different countries where al-Qaeda had recruited, but in the final stages bin Laden chose instead to use a large group of young Saudi men to populate the hijacking teams;
bullet KSM told interrogators about other terror plots that were in various stages of planning or had been temporarily disrupted when he was captured, including one planned for Singapore (see June 2001 and November 15-Late December 2001);
bullet KSM and al-Qaeda were still actively looking to strike US, Western, and Israeli targets across the world as of this year. [Associated Press, 9/21/2003]
These statements attributed to KSM are similar to later statements attributed to him by the 9/11 Commission Report. [9/11 Commission, 7/24/2004] The Associated Press article cautions that US authorities are still investigating what KSM is telling them, “to eliminate deliberate misinformation.” [Associated Press, 9/21/2003] KSM made some or all these statements under torture, leading some to question their reliability (see Shortly After February 29 or March 1, 2003, After March 7, 2003, June 16, 2004, and August 6, 2007).

Entity Tags: Central Intelligence Agency, Khalid Shaikh Mohammed

Timeline Tags: Complete 911 Timeline

Mahmoud Afif Abdeljalil.Mahmoud Afif Abdeljalil. [Source: Joel Nito / Agence France-Presse]An “envoy” of bin Laden’s brother-in-law is accused of running al-Qaeda front companies in the Philippines and is deported. Mahmoud Afif Abdeljalil, a Jordanian, was arrested in the Philippines in early 1995 and accused of supporting the Bojinka plot, but then was let go (see January 6, 1995 and April 1, 1995-Early 1996). He is arrested in the Philippines again on this day while attempting to sell some properties owned by Mohammed Jamal Khalifa, bin Laden’s brother-in-law. [Contemporary Southeast Asia, 12/1/2002; Time, 10/27/2003] Philippine officials call him a suspected al-Qaeda operative who had been in close contact with militants from the Abu Sayyaf and other groups. He is called an “envoy” or “point man” for Khalifa, and reputedly took over some of Khalifa’s business front companies after Khalifa left the country in 1994 (see December 1, 1994). His house was used as a safe-house and meeting place for al-Qaeda operatives. [Agence France-Presse, 10/23/2003; Associated Press, 10/23/2003] However, despite all these serious allegations, Abdeljalil is deported back to Jordan in early 2004. [Associated Press, 3/1/2004]

Entity Tags: Mohammed Jamal Khalifa, Abu Sayyaf, Mahmoud Afif Abdeljalil, Al-Qaeda

Timeline Tags: Complete 911 Timeline

Jack Goldsmith succeeds Jay Bybee as the head of the Justice Department’s Office of Legal Counsel (OLC). The OLC essentially performs two functions: advising the executive branch on the legal limits of presidential power, and crafts legal justifications for the actions of the president and the executive branch. Goldsmith, who along with fellow Justice Department counsel and law professor John Yoo, is seen as one of the department’s newest and brightest conservative stars. But instead of aiding the Bush administration in expanding the power of the executive branch, Goldsmith will spend nine tumultuous months battling the White House on issues such as the NSA’s warrantless wiretapping program, the administration’s advocacy of torture in the interrogation of terrorism suspects, and the extralegal detention and military tribunals of “enemy combatants.” Goldsmith will find himself at odds with Yoo, the author of two controversial OLC memos that grant the US government wide latitude in torturing terror suspects (see January 9, 2002 and August 1, 2002), with White House counsel and future attorney general Alberto Gonzales, and with the chief aide to Vice President Dick Cheney, David Addington, who along with Cheney is one of the strongest advocates of the so-called “unitary executive” theory of governance, which says the president has virtually unlimited powers, especially in the areas of national security and foreign policy, and is not always subject to Congressional or judicial oversight. Within hours of Goldsmith’s swearing-in, Goldsmith receives a phone call from Gonzales asking if the Fourth Geneva Convention, which protects civilians in war zones such as Iraq, covers terrorists and insurgents as well. Goldsmith, after intensive review with other lawyers in and out of the Justice Department, concludes that the conventions do indeed apply. Ashcroft concurs. The White House does not. Goldsmith’s deputy, Patrick Philbin, says to Goldsmith as they drive to the White House to meet with Gonzales and Addington, “They’re going to be really mad. They’re not going to understand our decision. They’ve never been told no.” Philbin’s prediction is accurate; Addington is, Goldsmith recalls, “livid.” The physically and intellectually imposing Addington thunders, “The president has already decided that terrorists do not receive Geneva Convention protections. You cannot question his decision.” Addington refuses to accept Goldsmith’s explanations. Months later, an unmollified Addington will tell Goldsmith in an argument about another presidential decision, “If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands.” These initial encounters set the tone for Goldsmith’s stormy tenure as head of the OLC. Goldsmith will lead a small group of administration lawyers in what New York Times Magazine reporter Jeffrey Rosen calls a “behind-the-scenes revolt against what [Goldsmith] considered the constitutional excesses of the legal policies embraced by his White House superiors in the war on terror,” Goldsmith will resign in June of 2004 (see June 17, 2004). [New York Times Magazine, 9/9/2007]

Entity Tags: Richard (“Dick”) Cheney, US Department of Justice, Office of Legal Counsel (DOJ), John C. Yoo, Jack Goldsmith, David S. Addington, Alberto R. Gonzales, National Security Agency, Jay S. Bybee, John Ashcroft, Jeffrey Rosen

Timeline Tags: Civil Liberties

Amnesty International publishes a report stating that it believes that “the totality of conditions” in which “most” of the detainees at Guantanamo are being held may itself amount to cruel, inhuman, or degrading treatment. Amnesty notes that the Committee against Torture, established to oversee implementation of the Convention against Torture (see October 21, 1994), “has expressly held that restraining detainees in very painful positions, hooding, threats, and prolonged sleep deprivation are methods of interrogation which violate the prohibition on torture and cruel, inhuman or degrading treatment.” [Amnesty International, 10/20/2003]

Entity Tags: Amnesty International

Timeline Tags: Torture of US Captives

President Bush signs a bill into law banning so-called “partial-birth abortions.” A similar bill was vetoed by then-President Clinton in 1996 (see April 1996). The bill signing is part of a ceremony of abortion opposition featuring some 400 lawmakers and anti-abortion advocates. The new law, known as the Partial Birth Abortion Ban Act, is the first time the federal goverment has banned an abortion procedure since the 1973 Roe v. Wade decision legalized abortions (see January 22, 1973). A federal judge in Nebraska has already said the law may be unconstitutional, and many observers expect it to be challenged. [CBS News, 4/19/2007] Three years later, the Supreme Court will uphold the law (see April 17, 2007).

Entity Tags: George W. Bush

Timeline Tags: US Health Care

Congress passes a law that states US officials in Iraq cannot prevent an inspector general for the Coalition Provisional Authority from carrying out any investigation. The inspector general will inform Congress if officials refuse to cooperate with his inquiries. President Bush issues a signing statement directly contradicting the law. According to Bush’s statement, the inspector general “shall refrain” from investigating anything involving sensitive plans, intelligence, national security, or anything already being investigated by the Pentagon. The inspector cannot tell Congress anything if the president decides that disclosing the information would impair foreign relations, national security, or executive branch operations. [Boston Globe, 4/30/2006]

Entity Tags: Coalition Provisional Authority, George W. Bush

Timeline Tags: Civil Liberties

Top: the seven detainees are forced to form a human pyramid. Charles Graner and Sabrina Harman stand behind them smiling and giving thumbs up signs. Bottom: Some of the same detainees are forced to simulate oral sex on each other. Top: the seven detainees are forced to form a human pyramid. Charles Graner and Sabrina Harman stand behind them smiling and giving thumbs up signs. Bottom: Some of the same detainees are forced to simulate oral sex on each other. [Source: Public domain]At Abu Ghraib, seven Iraqi detainees are brought to Cellblock 1A from one of the tent camps escorted by MPs. The seven Iraqis are suspected of having taken part in a fight. They include Nori al-Yasseri, Hussein Mohssein Mata al-Zayiadi, and four others known only by their first names: Haidar, Ahmed, Ahzem, Hashiem and Mustafa. [Washington Post, 5/21/2004; US Department of Defense, 8/23/2004 pdf file] They are repeatedly punched and attacked by Staff Sgt. Ivan L. Frederick, Spc. Charles Graner, and other MPs (see Evening November 7, 2003). The MPs then take out their cameras to take pictures of the seven naked men and begin putting them in humiliating poses, often placing themselves in the picture as well, smiling. Graner makes them climb on top of each other to form a human pyramid, as is reported by Spc. Sabrina Harman. [Washington Post, 5/22/2004; Rolling Stone, 7/28/2004] “They put us two on the bottom, two on top of them, and two on top of those and on top,” Al-Zayiadi will say. [Washington Post, 5/21/2004] “The pyramid lasted about 15 to 20 minutes,” according to Harman. [Washington Post, 5/22/2004] The prisoners are also made to crawl on hands and knees with MPs riding on their backs. [Rolling Stone, 7/28/2004] “They were sitting on our backs like riding animals,” Al-Zayiadi says. Meanwhile, others are taking photographs. [Washington Post, 5/21/2004] Frederick then takes hold of the prisoner whom he has singled out for additional punishment and motions him to masturbate. “I grabbed his arm by the elbow, put it on his genitals and moved it back and forth with an arm motion, and he did it.” [Los Angeles Times, 10/21/2004] He makes another detainee do the same. “I lifted his hood and gave him a hand gesture, telling him to keep doing it himself.” [New York Times, 10/21/2004] Spc. Matthew Wisdom, who complained to his team leader Sgt. Robert Jones earlier in the evening about the treatment of the detainees, returns to Tier 1A to find a naked detainee being forced to masturbate in front of another naked detainee on his knees before him. “I saw two naked detainees,” Wisdom will later recall, “one masturbating to another kneeling with its mouth open. I thought I should just get out of there. I didn’t think it was right.” [New Yorker, 5/10/2004] According to Wisdom, Frederick says to him: “Look what these animals do when we leave them alone for two seconds.” [New Yorker, 5/10/2004; Los Angeles Times, 8/5/2004] Meanwhile, Pfc. Lynndie England makes sexually suggestive comments “in a somewhat sarcastic, fun tone of voice,” according to Wisdom. [Los Angeles Times, 8/5/2004] “I heard Pfc. England shout out, ‘He’s getting hard.’” [New Yorker, 5/10/2004] Again Wisdom leaves the building to tell Sgt. Jones, who assures him the “problem [will] be addressed and dealt with,” [Los Angeles Times, 8/5/2004] and Wisdom assumes that the problem will be taken care of. [New Yorker, 5/10/2004] Others, meanwhile, are lined up and forced to masturbate. These facts are corroborated by photographs that show the MPs laughing as they look on. [Rolling Stone, 7/28/2004] Al-Zayiadi later identifies himself in one of these pictures. “They told my friend to masturbate and told me to masturbate also, while they were taking pictures,” he says. [Washington Post, 5/21/2004] In the end, Al-Zayiadi says they are tossed naked but still hooded into a cell. “They opened the water in the cell and told us to lay face down in the water and we stayed like that until the morning, in the water, naked, without clothes.” [Washington Post, 5/21/2004] One of the seven prisoners is likely Haydar Sabbar Abed who says he was originally arrested for not carrying his ID card. After being involved in a fight with an Iraqi prison employee in one of the tent camps, he is taken to the Hard Site. He later recalls: “They cut off our clothes and… told us to masturbate towards this female soldier. But we didn’t agree to do it, so they beat us.” He also says: “They made us act like dogs, putting leashes around our necks. They’d whistle and we’d have to bark like dogs. We thought they were going to kill us.” [BBC, 8/4/2004] The next day, Wisdom asks for and is granted a transfer to a job elsewhere in the prison. Although he and Sgt. Jones say they have been angered by the abuse, they do little more than mildly confront their colleagues with their objections. [Los Angeles Times, 8/5/2004] To the detainees, the experience has been harrowing. Al-Yasseri will later call it a “night which we felt like 1,000 nights.” “I was trying to kill myself,” says Al-Zayiadi, “but I didn’t have any way of doing it.” [Rolling Stone, 7/28/2004] Gen. George Fay will also describe these incidents in his report (see August 25, 2004), which he concludes was an the affair of MPs alone. He states that military intelligence “involvement in this abuse has not been alleged nor is it likely.” However, one of the pictures taken that night, depicting the “human pyramid,” is later used as a screen saver for a computer in the Hard Site. The screen saver is later seen by a female military intelligence interrogator, but she states, according to Gen. Fay, that she did not report the picture because she did not see it again. The same interrogator, Fay will report, had a “close personal relationship” with Staff Sgt. Frederick, [US Department of Defense, 8/23/2004 pdf file] one of the main instigators of the abuse that night.

Entity Tags: Javal Davis, Ivan L. Frederick II, Jeremy C. Sivits, Matthew Wisdom, Shannon K. Snider, Hussein Mohssein Mata Al-Zayiadi, Lynndie England, Nori al-Yasseri, Mustafa, Haydar Sabbar Abed, George R. Fay, Haidar, New Yorker, Hashiem, Ahmed, Charles Graner, Ahzem, Sabrina Harman, Robert Jones II

Timeline Tags: Torture of US Captives

Department of Defense Principal Deputy General Counsel Daniel Dell’Orto writes to Senator Patrick Leahy and confirms that earlier Pentagon statements (see June 25, 2003) about the treatment of detainees bind the entire executive branch. But he fails to answer specific questions about interrogation guidelines and adds that articles reporting improper treatment of detainees “often contain allegations that are untrue.” [Human Rights Watch, 5/7/2004]

Entity Tags: Patrick J. Leahy, Daniel J. Dell’Orto

Timeline Tags: Torture of US Captives

Jack Goldsmith, the new head of the Justice Department’s Office of Legal Counsel (see October 6, 2003), finds himself embroiled in a huge, if secretive, controversy over Justice Department lawyer John Yoo’s torture memos (see January 9, 2002 and January 25, 2002). Yoo, who wrote the original memos over former OLC chief Jay Bybee’s signature, had placed the OLC in the position of asserting that torture can indeed be used against terror suspects. Goldsmith disagrees, feeling that Yoo’s definitions of torture are far too narrow and give far too much latitude to US interrogators. He also believes that Yoo’s assertions of near-unchecked presidential power to authorize torture—at the direct expense of Congressional and judicial oversight—has no legal basis. And, Goldsmith worries, the opinions could be interpreted as a clumsy, “tendentious” attempt to protect Bush officials from criminal charges. The conflict between Goldsmith and Yoo will cost the two men their friendship. “I was basically taking steps to fix the mistakes of a close friend, who I knew would be mad about it,” Goldsmith will recall in 2007. “We don’t talk anymore, and that’s one of the many sad things about my time in government.” Goldsmith decides to withdraw the follow-up March 2003 torture memo, and tells White House officials they cannot rely on it any longer. Actually doing so proves a tricky business. [New York Times Magazine, 9/9/2007]
'Serious, Serious Problems' - Goldsmith will say in September 2007: “As soon as I absorbed the opinions I realized… that my reaction to them was a big problem. The Office of Legal Counsel rarely overturns its prior opinions, and even more rarely does so within an administration, and even more rarely than that, in the same administration about something this important. I didn’t find any precedent for it. And I did not want to do anything to affect either the programs or the underlying opinions. But they were serious, serious problems, and I knew if and when I was asked to stand by them that I would have a very hard time doing so.” [Newsweek, 9/8/2007]
Pressure from Abu Ghraib Scandal - The legal and bureaucratic niceties of withdrawing the memos become moot when, in April 2004, the Abu Ghraib scandal breaks (see Mid-April 2004), and when in June 2004, the first memo is leaked to the media. “After the leak, there was a lot of pressure on me within the administration to stand by the opinion,” he later says, “and the problem was that I had decided six months earlier that I couldn’t stand by the opinion.” [New York Times Magazine, 9/9/2007] “I had determined that the analysis was flawed,” he will recall. “But I hadn’t determined the underlying techniques were illegal. After Abu Ghraib, there was enormous pressure for me to stand by the decisions… and I couldn’t do so. I had already made up my mind many months earlier and I wasn’t about to change it. But I struggled for several days with what the consequences might be of withdrawing the opinion, because I wasn’t in the position to make an independent ruling on the other techniques. I certainly didn’t think they were unlawful, but I couldn’t get an opinion that they were lawful either. So I struggled to repudiate the flawed opinion while not causing massive disruption and fright throughout the counterterrorism world related to interrogation. And I ultimately decided that I had to withdraw those and under suspicions, stand by it, because it was so thoroughly flawed.” [Newsweek, 9/8/2007]
White House Resists Change - Though Goldsmith has the support of his boss, Attorney General John Ashcroft, Ashcroft’s deputy, James Comey, and his own deputy, Patrick Philbin, he knows the White House will fight the withdrawal. Goldsmith will decide to issue the withdrawal and then resign his position (see June 17, 2004), effectively forcing the administration to either quietly accept the withdrawal, or fight it and make his resignation a media circus. “If the story had come out that the US government decided to stick by the controversial opinions that led the head of the Office of Legal Counsel to resign, that would have looked bad,” he later recalls. “The timing was designed to ensure that the decision stuck.” Vice President Dick Cheney’s chief aide, David Addington, among other White House officials, is furious over the withdrawal of the torture opinion (interestingly, White House counsel and future attorney general Alberto Gonzales will modify his own opposition to the withdrawals later, telling Goldsmith in 2007, “I guess those opinions really were as bad as you said”). [New York Times Magazine, 9/9/2007]
Expansion of Presidential Power - Addington asks Goldsmith incredulously, “Why are you trying to give away the president’s power?” Like Cheney, Addington believes, in Goldsmith’s words, “that the very act of asking for Congress’s help would imply, contrary to the White House line, that the president needed legislative approval and could not act on his own. The president’s power would diminish, Addington thought, if Congress declined its support once asked, especially if it tried to restrict presidential power in some way. Congress had balked, during the month after 9/11, at giving the president everything he had asked for in the Congressional authorization to use force and the Patriot Act. Things would only be worse in 2004 and beyond, Addington believed.” Addington’s two questions are always, Goldsmith writes, “‘Do we have the legal power to do it ourselves?’ (meaning on the president’s sole authority), and ‘Might Congress limit our options in ways that jeopardize American lives?’” While Goldsmith and his colleagues agree that the president has the power, and that seeking Congressional approval might tie the White House’s hands more so than the administration is willing to accept, Goldsmith worries that an unfavorable Supreme Court decision would undercut Bush’s authority much more so than any restrictions passed by a compliant, Republican-led Congress. Addington sees things in very simple terms: ”“We’re going to push and push and push until some larger force makes us stop,” Addington says on several occasions. Addington tells Goldsmith, “Now that you’ve withdrawn legal opinions that the president of the United States has been relying on, I need you to go through all of [the OLC terror memos] and let me know which ones you still stand by.” Goldsmith will do just that, further angering Addington. [Savage, 2007, pp. 184; Slate, 9/11/2007]
Absolute Power Required to Defend Nation - Goldsmith later writes: “He and, I presumed, his boss viewed power as the absence of constraint. These men believed that the president would be best equipped to identify and defeat the uncertain, shifting, and lethal new enemy by eliminating all hurdles to the exercise of his power. They had no sense of trading constraint for power. It seemed never to occur to them that it might be possible to increase the president’s strength and effectiveness by accepting small limits on his prerogatives in order to secure more significant support from Congress, the courts, or allies. They believed cooperation and compromise signaled weakness and emboldened the enemies of America and the executive branch. When it came to terrorism, they viewed every encounter outside the innermost core of most trusted advisers as a zero-sum game that if they didn’t win they would necessarily lose.” [Slate, 9/11/2007]

Entity Tags: John Ashcroft, John C. Yoo, Jay S. Bybee, Office of Legal Counsel (DOJ), James B. Comey Jr., David S. Addington, Patrick F. Philbin, Alberto R. Gonzales, Bush administration (43), Daniel Levin, Jack Goldsmith, US Department of Justice

Timeline Tags: Civil Liberties

The Supreme Court rules in the case of McConnell v. Federal Election Commission. The case addresses limitations on so-called “soft money,” or contributions to a political party not designated specifically for supporting a single candidate, that were imposed by the Bipartisan Campaign Reform Act of 2002 (BCRA), often known as the McCain-Feingold law after its two Senate sponsors (see March 27, 2002). A three-judge panel has already struck down some of McCain-Feingold’s restrictions on soft-money donations, a ruling that was stayed until the Court could weigh in. Generally, the Court rules that the “soft money” ban does not exceed Congress’s authority to regulate elections, and does not violate the First Amendment’s free speech clause. The ruling is a 5-4 split, with the majority opinion written by liberal Justice John Paul Stevens and his conservative colleague Sandra Day O’Connor. The opinion finds that the “minimal” restrictions on free speech are outweighed by the government’s interest in preventing “both the actual corruption threatened by large financial contributions and… the appearance of corruption” that might result from those contributions. “Money, like water, will always find an outlet,” the justices write, and the government must take steps to prevent corporate donors from finding ways to subvert the contribution limits. The majority is joined by liberal justices Stephen Breyer, Ruth Bader Ginsburg, and David Souter, and the four other conservatives on the court—Anthony Kennedy, William Rehnquist, Antonin Scalia, and Clarence Thomas—dissent. [Legal Information Institute, 12/2003; Oyez (.org), 2011] The case represents the consolidation of 11 separate lawsuits brought by members of Congress, political parties, unions, and advocacy groups; it is named for Senator Mitch McConnell, who sued the FEC on March 27, 2002, the same day the bill was signed into law. Due to the legal controversy expected to be generated by the law and the need to settle it prior to the next federal election, a provision was included in the BCRA that provided for the case to be heard first by a special three-judge panel and then appealed directly to the Supreme Court. This District of Columbia district court panel, comprised of two district court judges and one circuit court judge, was inundated with numerous amicus briefs, almost 1,700 pages of related briefs, and over 100,000 pages of witness testimony. The panel upheld the BCRA’s near-absolute ban on the usage of soft money in federal elections, and the Supreme Court agrees with that finding. However, the Court reverses some of the BCRA’s limitations on the usage of soft money for “generic party activities” such as voter registration and voter identification. The district court overturned the BCRA’s primary definition of “noncandidate expenditures,” but upheld the “backup” definition as provided by the law. Both courts allow the restrictions on corporate and union donations to stand, as well as the exception for nonprofit corporations. The Court upholds much of the BCRA’s provisions on disclosure and coordinated expenditures. The lower court rejected the so-called “millionaire provisions,” a rejection the Supreme Court upholds. A provision banning contributions by minors was overturned by the lower court, and the Court concurs. The lower court found the provision requiring broadcasters to collect and disclose records of broadcast time purchased for political activities unconstitutional, but the Court disagrees and reinstates the requirement. [Legal Information Institute, 12/2003] McConnell had asked lawyer James Bopp Jr., a veteran of anti-campaign finance lawsuits and the head of McConnell’s James Madison Center for Free Speech, to take part in the legal efforts of the McConnell case. However, before the case appeared before the Supreme Court, McConnell dropped Bopp from the legal team due to a dispute over tactics. [New York Times, 1/25/2010] The 2010 Citizens United decision will partially overturn McConnell (see January 21, 2010).

Entity Tags: Federal Election Commission, David Souter, Bipartisan Campaign Reform Act of 2002, Antonin Scalia, Anthony Kennedy, William Rehnquist, US Supreme Court, Stephen Breyer, Sandra Day O’Connor, National Rifle Association, Mitch McConnell, John Paul Stevens, Ruth Bader Ginsburg, James Bopp, Jr, Clarence Thomas

Timeline Tags: Civil Liberties

A three-judge panel of the Second US Circuit Court of Appeals in New York votes two to one that the military must either charge alleged al-Qaeda terrorist Jose Padilla with a crime, or release him within 30 days. “The government,” the court says, “can transfer Padilla to appropriate civilian authorities who can bring criminal charges against him.” Until now, no court in the US has ruled against the government’s contention that even American citizens arrested on US soil can be held indefinitely based on wartime government prerogatives. Neither the 2001 Authorization to Use Military Force (see September 14-18, 2001) nor the president’s “inherent power” as commander in chief is enough to hold Padilla without a trial, the court finds: “The president, acting alone, possesses no inherent constitutional authority to detain American citizens seized within the United States, away from a zone of combat, as enemy combatants.” The two judges in the majority are a 1998 Clinton appointee and a 2001 Bush appointee; the dissenter, who advocates granting the president new and sweeping powers, is a 2003 Bush appointee. “So far,” Office of Legal Counsel lawyer John Yoo comments, “the Second Circuit is the only court that has rejected the idea that the war on terrorism is, in fact, a war.” Because this ruling conflicts with the Fourth Circuit’s ruling in favor of the Bush administration, the Supreme Court will be forced to resolve the issue (see June 28, 2004); in light of the appeal, the court later agrees to suspend its 30-day ruling. [Knight Ridder, 12/29/2003; Savage, 2007, pp. 153]

Entity Tags: Jose Padilla, John C. Yoo

Timeline Tags: Torture of US Captives, Civil Liberties

The White House and the Justice Department are at odds over the legality of the National Security Agency’s “data mining” program, which involves the NSA combing through enormous electronic databases containing personal information about millions of US citizens, ostensibly for anti-terrorism purposes and often without court warrants (see February 2001, Spring 2001, After September 11, 2001, After September 11, 2001, October 2001, and Early 2002). Such data mining by the NSA potentially threatens citizens’ constitutional right to privacy. This clash between the White House and the Justice Department is one of the reasons that White House counsel Alberto Gonzales and chief of staff Andrew Card will try to pressure Attorney General John Ashcroft, while Ashcroft is recuperating from surgery, to reauthorize the NSA program over the objections of Deputy Attorney General James Comey. That attempt to force reauthorization over Justice Department complaints will result in the protest resignations of Ashcroft, Comey, and other Justice officials (see March 10-12, 2004). In 2007, Gonzales will deny that any such attempt to pressure Ashcroft to overrule Comey ever happened (see July 24, 2007), and will deny that there was any such dispute between the White House and Justice Department over the NSA program. Those denials will lead to calls to investigate Gonzales for perjury (see May 16, 2007). In late 2005, President Bush will admit, after the New York Times reveals the existence of the NSA warrantless wiretapping program (see Early 2002), that the program indeed exists, but will not acknowledge the data mining. Several current and former administration officials, interviewed by reporters in 2007, refuse to go into detail about the dispute between the White House and Justice Department, but say that it involves other issues along with the data mining. They will also refuse to explain what modifications to the surveillance program Bush will authorize to mollify Justice Department officials. Bush and his officials, including Gonzales, who will ascend to the position of attorney general in 2005, will repeatedly insist that he has the authority, both under the Constitution and under Congress’s authorization to use military force against terrorists passed after the 9/11 attacks (see September 14-18, 2001), to bypass the requirements for court warrants to monitor US citizens. Critics will say that such surveillance is illegal under the Foreign Intelligence Surveillance Act. [New York Times, 7/29/2007]
Domestic Surveillance Began Before 9/11? - Though Bush officials eventually admit to beginning surveillance of US citizens only after the 9/11 attacks, that assertion is disputed by evidence suggesting 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: US Department of Justice, National Security Agency, New York Times, James B. Comey Jr., Alberto R. Gonzales, Andrew Card, Bush administration (43), George W. Bush, John Ashcroft

Timeline Tags: Civil Liberties

A sample page from Mark Klein’s AT&T documentation.A sample page from Mark Klein’s AT&T documentation. [Source: Mark Klein / Seattle Times]Senior AT&T technician Mark Klein (see July 7, 2009), gravely concerned by the National Security Agency (NSA) spying operation going on in AT&T’s San Francisco facility (see October 2003) and now in possession of documents which prove the nature and scope of the telecommunications surveillance activities (see Fall 2003 and Late 2003), writes a memo summarizing his findings and conclusions. He appends eight pages of the unclassified documents he has in his possession, along with two photographs and some material from the Internet which documents the sophisticated surveillance equipment being used to gather data from AT&T’s electronic transmissions. The NSA and AT&T were, he later says, “basically sweeping up, vacuum-cleaning the Internet through all the data, sweeping it all into this secret room.… It’s the sort of thing that very intrusive, repressive governments would do, finding out about everybody’s personal data without a warrant. I knew right away that this was illegal and unconstitutional, and yet they were doing it.… I think I’m looking at something Orwellian. It’s a government, many-tentacled operation to gather daily information on what everybody in the country is doing. Your daily transactions on the Internet can be monitored with this kind of system, not just your Web surfing. All kinds of business that people do on the Internet these days—your bank transactions, your email, everything—it sort of opens a window into your entire private life, and that’s why I thought of the term ‘Orwellian.’ As you know, in [George] Orwell’s story [1984], they have cameras in your house, watching you. Well, this is the next best thing.… So I was not only angry about it; I was also scared, because I knew this authorization came from very high up—not only high up in AT&T, but high up in the government. So I was in a bit of a quandary as to what to do about it, but I thought this should be halted.”
Gathering 'the Entire Data Stream' - In his memo, Klein concludes that the NSA is using “splitter” equipment to copy “the entire data stream [emphasis in the original] and sent it to the [NSA’s] secret room for further analysis.” Klein writes that the splitters actually “split off a percentage of the light signal [from the fiber optic circuits] so it can be examined. This is the purpose of the special cabinet… circuits are connected into it, the light signal is split into two signals, one of which is diverted to the ‘secret room.’ The cabinet is totally unnecessary for the circuit to perform—in fact, it introduces problems since the signal level is reduced by the splitter—its only purpose is to enable a third party [the NSA] to examine the data flowing between sender and recipient on the Internet.” (Emphasis in the original.) In his book, Klein will explain that “each separate signal,” after being split, “contains all the information, nothing is lost, so in effect the entire data stream has been copied.” He will continue: “What screams out at you when examining this physical arrangement is that the NSA was vacuuming up everything flowing in the Internet stream: email, Web browsing, voice-over-Internet phone calls, pictures, streaming video, you name it. The splitter has no intelligence at all, it just makes a blind copy.” Klein later explains to a reporter: “The signals that go across fiber optics are laser light signals. It’s light basically that runs through a fiber optic, which is a clear glass fiber, and it has to be at a certain level for the routers to see the light and interpret the data correctly. If the light gets too low, just as if you get a weak flashlight with bad batteries, at a certain point it doesn’t work. If the light level drops too low, the router starts dropping bits and getting errors, and eventually you get loss of signal, and it just doesn’t work at all.… The effect of the splitter is to reduce the strength of the signal, and that may or may not cause a problem, depending on how much the signal is reduced.” A telecommunications company would not, as a rule, use such a splitter on its backbone Internet traffic because of the risk of degraded signal quality. “You want to have as few connections on your main data lines as possible,” Klein will say, “because each connection reduces the signal strength, and a splitter is a connection, and if you can avoid that, all the better.”
Inherently Illegal - Klein will explain that there is no way these activities are legal: “There could not possibly be a legal warrant for this, since according to the Fourth Amendment, warrants have to be specific, ‘particularly describing the place to be searched and the persons or things to be seized.’ It was also a blatant violation of the 1978 Foreign Intelligence Surveillance Act [FISA—see 1978], which calls for specific warrants as required by the Fourth Amendment. This was a massive blind copying of the communications of millions of people, foreign and domestic, randomly mixed together. From a legal standpoint, it does not matter what they claim to throw away later in their secret rooms, the violation has already occurred at the splitter.” [AT&T, 12/10/2002; AT&T, 1/13/2003; AT&T, 1/24/2003; Wired News, 5/22/2006; PBS Frontline, 5/15/2007; Klein, 2009, pp. 37, 119-133]
The Narus STA 6400 - Klein discusses one key piece of equipment in the NSA’s secret room, the Narus STA 6400 (see Late 2003). Narus is a firm that routinely sells its equipment not only to telecom firms such as AT&T, “but also to police, military, and intelligence officials” (see November 13-14, 2003). Quoting an April 2000 article in Telecommunications magazine, Klein writes that the STA 6400 is a group of signal “traffic analyzers that collect network and customer usage information in real time directly from the message.… These analyzers sit on the message pipe into the ISP [Internet Service Provider] cloud rather than tap into each router or ISP device.” Klein quotes a 1999 Narus press release that says its Semantic Traffic Analysis (STA) technology “captures comprehensive customer usage data… and transforms it into actionable information… [it] is the only technology that provides complete visibility for all Internet applications.” The Narus hardware allows the NSA “to look at the content of every data packet going by, not just the addressing information,” Klein will later write.
A 'Dream Machine for a Police State' - Klein later writes of the Narus STA 6400: “It is the dream machine of a police state, one that even George Orwell could not imagine. Not only does it enable the government to see what millions of people are saying and doing every day, but it can build up a database which reveals the connections among social groups—who’s calling and emailing whom. Such a device can easily be turned against all dissident protest groups, and even the Democratic and Republican parties, with devastating effect. And it’s in the hands of the executive power, in total secrecy.” [AT&T, 12/10/2002; AT&T, 1/13/2003; AT&T, 1/24/2003; Wired News, 5/22/2006; Klein, 2009, pp. 37-40] In support of the memo and an ensuing lawsuit against AT&T (see January 31, 2006), Klein will later write: “Despite what we are hearing, and considering the public track record of this administration, I simply do not believe their claims that the NSA’s spying program is really limited to foreign communications or is 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.” [Wired News, 4/7/2006]

Entity Tags: National Security Agency, Narus, Mark Klein, Foreign Intelligence Surveillance Act, AT&T

Timeline Tags: Civil Liberties

Police photo of Tom DeLay, after his 2005 indictment on election fraud charges.Police photo of Tom DeLay, after his 2005 indictment on election fraud charges. [Source: Mug Shot Alley]The co-founder and editor of the American Prospect, Robert Kuttner, subjects the 2002 House of Representatives to scrutiny, and concludes that under the rule of House Majority Leader Tom DeLay (R-TX), it is well on its way to becoming what he calls a “dictatorship.” Kuttner writes that such authoritarian rule in “the people’s chamber” of Congress puts the US “at risk of becoming an autocracy.” He explains: “First, Republican parliamentary gimmickry has emasculated legislative opposition in the House of Representatives (the Senate has other problems). [DeLay] has both intimidated moderate Republicans and reduced the minority party to window dressing.… Second, electoral rules have been rigged to make it increasingly difficult for the incumbent party to be ejected by the voters, absent a Depression-scale disaster, Watergate-class scandal, or Teddy Roosevelt-style ruling party split.… Third, the federal courts, which have slowed some executive branch efforts to destroy liberties, will be a complete rubber stamp if the right wins one more presidential election. Taken together, these several forces could well enable the Republicans to become the permanent party of autocratic government for at least a generation.” Kuttner elaborates on his rather sweeping warnings.
Legislative Dictatorship - The House, and to a lesser extent the Senate, used to have what was called a “de facto four-party system”: liberal Democrats; Southern “Dixiecrats” who, while maintaining their membership as Democrats largely due to lingering resentment of Republicans dating back to the Civil War, often vote with Republicans; conservative Republicans; and moderate-to-liberal “gypsy moth” Republicans, who might vote with either party. Rarely did one of the four elements gain long-term control of the House. Because of what Kuttner calls “shifting coalitions and weak party discipline,” the majority party was relatively respectful of the minority, with the minority free to call witnesses in hearings and offer amendments to legislation. In the House, that is no longer true. While the House leadership began centralizing under House Speaker Jim Wright (D-TX) between 1987 and 1989, the real coalescence of power began under Speaker Newt Gingrich (R-GA) between 1995 and 1999. The process, Kuttner asserts, has radically accelerated under DeLay and Speaker Dennis Hastert (R-IL).
Centralized Legislation - Under current practices, even most Republicans do not, as a rule, write legislation—that comes from DeLay and Hastert. Drastic revisions to bills are often rammed through late in the evening, with little or no debate. The Republican leadership has classified legislation as “emergency” measures 57 percent of the time, allowing them to be voted on with as little as 30 minutes of debate. Kuttner writes, “On several measures, members literally did not know what they were voting for.” Legislation written and proposed by Democrats rarely gets to the floor for debate. Amendments to legislation is also constrained, almost always coming from Hastert and DeLay. “[V]irtually all major bills now come to the floor with rules prohibiting amendments.” DeLay enforces rigid party loyalty, threatening Republican members who resist voting for the leadership’s bills with loss of committee assignments and critical campaign funds, and in some circumstances with DeLay’s sponsoring primary opponents to unseat the uncooperative member in the next election.
Democrats Shut out of Conferences - In the House, so-called “conference committees,” where members work to reconcile House and Senate versions of legislation, have become in essence one-party affairs. Only Democrats who might support the Republican version of the bill are allowed to attend. The conference committee then sends a non-amendable bill to the floor for a final vote.
No Hearings - The general assumption is that House members debate bills, sometimes to exhaustion, on the chamber floor. No more. Before DeLay, bills were almost never written in conference committees. Now, major legislation is often written in conference committee; House members often never see the legislation until it has been written in final, non-amendable form by DeLay and his chosen colleagues.
Abuse of Appropriations - Appropriations, or funding of events authorized by legislation, are ripe for use and misuse by the one-party leadership. Many appropriations bills must pass in order for Congress or other entities of the government to continue functioning. While “earmarks”—“pork-barrel” appropriations for individual members’ pet projects and such—are nothing new, under Gingrich and later Hastert/DeLay, the use of earmarks has skyrocketed. Huge earmarks are now routinely attached to mandatory appropriations bills. DeLay has perfected a technique known as “catch and release.” On close pending votes, the House Republican Whip Organization, made up of dozens of regional whips, will target the small but critical number of Republicans who might oppose the legislation. Head counts are taken; as members register (and change) their votes, some are forced to vote against their consciences (or their constituents) and others are allowed to vote no. Kuttner writes, “Basically, Republican moderates are allowed to take turns voting against bills they either oppose on principle or know to be unpopular in their districts.” This allows the member to save at least some face with their constituents. Under Wright, Republican members such as then-Representative Dick Cheney (R-WY) were outraged when Wright held a vote open for 15 minutes after voting was to end; Cheney called it “the most arrogant, heavy-handed abuse of power I’ve ever seen in the 10 years that I’ve been here.” It is not unusual for DeLay to hold votes open for up to three hours to get recalcitrant members in line. [American Prospect, 2/1/2004] In 2006, author John Dean will note that when the Republicans took control of the House in 1999, there were 1,439 earmarks in that year’s legislation. By the end of 2005, “there were a staggering 13,998 earmarked expenses, costing $27.3 billion.” Dean will write, “Needless to say, there is nothing conservative in those fiscal actions but there is much that is authoritarian about the wanton spending by those Republicans.” [Dean, 2006]
Lack of Opposition - Kuttner notes that Congressional Democrats have not mounted a systematic, organized denunciation of the DeLay operation. Kuttner believes that many Democrats believe voters are uninterested in what they call “process issues,” and that voters will dismiss complaints as “inside baseball,” of little relevance to their lives. Worse, such complaints “make… us look weak,” as one senior House staffer says. Kuttner writes that many Democrats believe such complaints sound “like losers whining.”
Permanent Republican Majority - If DeLay and his confreres in the White House have their way, there will be, in essence, a permanent Republican majority in the House and hopefully in the Senate as well. Bill Clinton routinely practiced what he called bipartisan “triangulation,” building ad hoc coalitions of Democrats and Republicans to pass his legislative initiatives, and in the process weakening the Democratic leadership. Kuttner writes, “Bush’s presidency, by contrast, has produced a near parliamentary government, based on intense party discipline both within Congress and between Congress and the White House.” Republicans have been busy reworking the district maps of various key states to ensure that Republicans keep their majorities, concentrating perceived Democratic voters to have overwhelming majorities in a few districts, and leaving the Republicans holding smaller majorities in the rest. Both parties have been guilty of such “gerrymandering” in the past, but with DeLay’s recent “super-gerrymandering” of his home state of Texas, the Republican makeup of the Texas House delegation is all but assured. DeLay and other House Republicans are working to redistrict other states in similar fashions. As of the 2004 midterm elections, of the 435 House seats, only around 25 are considered effectively contestable—over 90 percent of the House seats are “safe.” Democrats would have to win a disproportionate, and unlikely, number of those “swing” seats to take back control of the House. Kuttner writes: “The country may be narrowly divided, but precious few citizens can make their votes for Congress count. A slender majority, defying gravity (and democracy), is producing not moderation but a shift to the extremes.”
Control of Voting - Kuttner cites the advent of electronic voting machines and the Help America Vote Act (HAVA) as two reasons why Republicans will continue to have advantages at the voting booth. The three biggest manufacturers of electronic voting machines have deep financial ties to the Republican Party, and have joined with Republicans in opposing a so-called “verifiable paper trail” that could prove miscounts and possible fraudulent results. HAVA, written in response to the 2000 Florida debacle, requires that voters show government-issued IDs to be allowed to vote, a provision that Kuttner says is ripe for use in Republican voter-intimidation schemes. Republicans “have a long and sordid history of ‘ballot security’ programs intended to intimidate minority voters by threatening them with criminal prosecution if their papers are not technically in order,” he writes. “Many civil rights groups see the new federal ID provision of HAVA as an invitation to more such harassment.” The only recourse that voters have to such harassment is to file complaints with the Department of Justice, which, under the aegis of Attorney General John Ashcroft, has discouraged investigation of such claims.
Compliant Court System - Increasingly, federal courts with Republican-appointed judges on the bench have worked closely with Republicans in Congress and the White House to issue rulings favorable to the ruling party. Kuttner notes that if President Bush is re-elected: “a Republican president will have controlled judicial appointments for 20 of the 28 years from 1981 to 2008. And Bush, in contrast to both his father and Clinton, is appointing increasingly extremist judges. By the end of a second term, he would likely have appointed at least three more Supreme Court justices in the mold of Antonin Scalia and Clarence Thomas, and locked in militantly conservative majorities in every federal appellate circuit.” The Supreme Court is already close to becoming “a partisan rubber stamp for contested elections,” Kuttner writes; several more justices in the mold of Justices Antonin Scalia (see September 26, 1986) and Clarence Thomas (see October 13, 1991) would, Kuttner writes, “narrow rights and liberties, including the rights of criminal suspects, the right to vote, disability rights, and sexual privacy and reproductive choice. It would countenance an unprecedented expansion of police powers, and a reversal of the protection of the rights of women, gays, and racial, religious, and ethnic minorities. [It would] overturn countless protections of the environment, workers and consumers, as well as weaken guarantees of the separation of church and state, privacy, and the right of states or Congress to regulate in the public interest.” [American Prospect, 2/1/2004]

Entity Tags: George W. Bush, Democratic Party, Dennis Hastert, Clarence Thomas, Antonin Scalia, Tom DeLay, Robert Kuttner, William Jefferson (“Bill”) Clinton, Republican Party, John Ashcroft, Richard (“Dick”) Cheney, House Republican Whip Organization, James C. (‘Jim’) Wright, Jr., John Dean, Newt Gingrich, Help America Vote Act

Timeline Tags: Civil Liberties

The US learns that Ibn al-Shaykh al-Libi, a former al-Qaeda camp commander, was allegedly tortured in Egypt, where he was rendered by the CIA (see January 2002 and After). Although CIA Director George Tenet will describe al-Libi’s handling by the Egyptians as “further debriefing,” after being returned to US custody, al-Libi tells CIA officers he was tortured and these claims are documented in a series of cables sent to CIA headquarters on February 4 and 5. These cables are the final proof, many believe, that the US is illegally “outsourcing” torture to other countries, against suspects who have not been convicted or even charged with a crime. After being tortured by his Egyptian captors (see November 11, 2001), al-Libi was returned to US custody on November 22, 2003. The February 5 cable reads, in part, that al-Libi was told by the Egyptians that “the next topic was al-Qaeda’s connections with Iraq…. This was a subject about which he said he knew nothing and had difficulty even coming up with a story.” The Egyptians didn’t like al-Libi’s response, and locked him in a 20 inch by 20 inch box for 17 hours—effectively burying him alive. The Egyptians released him and gave him one more change to “tell the truth.” When al-Libi did not give the proper response, he was knocked to the ground and beaten. The CIA debriefers send this information straight to Washington (see February 14, 2004), thus informing the CIA that not only was this key piece of evidence about the link between Iraq and al-Qaeda false, but it was obtained by extreme, US-sanctioned torture. Although stories and witness accounts about torture in such US-allied countries as Egypt, Syria, Morocco, and Uzbekistan have long been known, this is the first time such torture has been detailed in an official US government document. It will be almost a year before the Bush administration will confirm the CIA’s rendition program (see March 11, 2002), and even then it will begin a litany of reassurances that the US does not torture, nor does it hand over prisoners to countries that torture. The CIA cables will be declassified in September 2006, and roundly ignored by the mainstream media. And as of late 2007, al-Libi will still be a “ghost prisoner” whose whereabouts and circumstances are considered a US state secret. [ABC News, 11/6/2007]

Entity Tags: Colin Powell, Ibn al-Shaykh al-Libi, Central Intelligence Agency, Al-Qaeda, George J. Tenet

Timeline Tags: Torture of US Captives

Alleged 9/11 mastermind Khalid Shaikh Mohammed (KSM) tells US interrogators that Abdul Hakim Murad, along with KSM a key conspirator in the Bojinka plot, only had a small role in the operation, according to the 9/11 Commission. The Commission will cite four intelligence reports, drafted on February 19 (two), February 24, and April 2, 2004, as the source of this claim. According to KSM, Murad’s only role in the plot was to courier $3,000 from Dubai to Manila. However, other evidence indicates Murad was much more significantly involved in the plot (see Before January 6, 1995 and January 6, 1995). The Commission will comment, “This aspect of KSM’s account is not credible, as it conflicts not just with Murad’s own confession [note: this may be unreliable as Murad was tortured (see After January 6, 1995)] but also with physical evidence tying Murad to the very core of the plot, and with KSM’s own statements elsewhere that Murad was involved in planning and executing the operation.” [9/11 Commission, 7/24/2004, pp. 489]

Entity Tags: Khalid Shaikh Mohammed, Abdul Hakim Murad, 9/11 Commission, Central Intelligence Agency

Timeline Tags: Complete 911 Timeline

Thomas Tamm.Thomas Tamm. [Source: Newsweek]Thomas Tamm, a veteran Justice Department prosecutor with a high-level security clearance, is finishing up a yearlong post with the Office of Intelligence Policy and Review (OIPR), a Justice Department unit handling wiretaps of suspected terrorists and spies. As his stint is coming to a close, Tamm learns of the existence of a highly classified National Security Agency (NSA) program that is electronically eavesdropping on American citizens—domestic wiretapping. He later learns that “the program,” as it is referred to by those few who know of it at all, is called “Stellar Wind.”
Concealment from FISA Judges - Tamm learns that the NSA program is being hidden from the Foreign Intelligence Surveillance Act (FISA) Court, a panel of federal judges who by law must approve and supervise such surveillance for intelligence purposes. OIPR lawyers ask the FISA Court for permission to implement national-security wiretaps. But, Tamm learns, some wiretaps—signed only by Attorney General John Ashcroft—are going to the chief FISA Court judge and not the other ten judges on the FISA panel. The “AG-only” requests are extraordinarily secretive, and involve information gleaned from what is only referred to as “the program”—Stellar Wind. Only a very few White House and US intelligence officials know the name and the nature of “the program.” Stellar Wind involves domestic wiretaps on telephones and computer e-mail accounts derived from, but not necessarily linked to, information secured from captured al-Qaeda computers and cell phones overseas. With the voluntary cooperation of American telecommunications companies (see 1997-August 2007 and After, February 2001, February 2001, and February 2001 and Beyond), the NSA program also collects vast amounts of personal data about US citizens’ phone and e-mail communications. The program also collects an enormous amount of financial information from the Treasury Department (see February 28, 2006), all collected as part of the NSA’s “data mining” efforts (see Late 1999 and After September 11, 2001).
Program Is 'Probably Illegal,' Says DOJ Official - Tamm, suspicious about the unusual requests, asks his supervisors about the program, and is told to drop the subject. “[N]o one wanted to talk about it,” he will recall. Tamm asks one of his supervisors, Lisa Farabee, “Do you know what the program is?” Farabee replies: “Don’t even go there.… I assume what they are doing is illegal.” Tamm is horrified. His first thought, he will later recall, is, “I’m a law enforcement officer and I’m participating in something that is illegal?” Tamm soon finds out from deputy OIPR counsel Mark Bradley that the chief FISA judge, Colleen Kollar-Kotelly, is raising unwanted questions about the warrant requests (see 2004 and 2005), and “the AG-only cases are being shut down.” Bradley adds, “This may be [a time] the attorney general gets indicted.”
Request for Guidance Turned Down - For weeks, Tamm agonizes over what to do. He seeks guidance from a former colleague, Sandra Wilkinson, who now works on the Senate Judiciary Committee. The two have coffee in the Senate cafeteria, and Tamm asks Wilkinson to ask if anyone on the committee knows anything about “the program.” Weeks go by without a response, and Tamm sends Wilkinson an e-mail from his OIPR computer—an e-mail that will later alert the FBI to Tamm’s interest in Stellar Wind. During a second conversation, Wilkinson refuses to give Tamm any information. “Well, you know, then,” he replies, “I think my only option is to go to the press.”
Contacting the New York Times - Tamm finally decides to contact the New York Times’s Eric Lichtblau, who has written several stories on the Justice Department that impressed Tamm. By this point he has transferred out of OIPR and back into a Justice Department office that would allow him to return to the courtroom. Tamm calls Lichtblau from a pay phone near the US District Courthouse in Washington. “My whole body was shaking,” he will recall. He identifies himself only as “Mark” (his middle name), and arranges to meet Lichtblau at a bookstore near the Justice Department. (In his 2008 book Bush’s Law: The Remaking of American Justice, Lichtblau describes Tamm as “a walk-in” source who was “agitated about something going on in the intelligence community.” Lichtblau will describe Tamm as wary and “maddeningly vague,” but as they continue to meet—usually in bookstores and coffee shops in the Capitol District—Tamm’s “credibility and his bona fides became clear and his angst appears sincere. Eighteen months later, after finally overriding a request and warning from President Bush not to print the story (see December 6, 2005), the Times reports on the existence of the NSA program (see December 15, 2005). [Ars Technica, 12/16/2008; Newsweek, 12/22/2008]

Entity Tags: Mark Bradley, Federal Bureau of Investigation, Eric Lichtblau, Colleen Kollar-Kotelly, Bush administration (43), ’Stellar Wind’, Foreign Intelligence Surveillance Court, Lisa Farabee, Senate Judiciary Committee, Thomas Tamm, Sandra Wilkinson, Office of Intelligence Policy and Review, New York Times, US Department of the Treasury, National Security Agency, US Department of Justice, John Ashcroft

Timeline Tags: Civil Liberties

March 8, 2004: Court Denies Al-Marri Appeal

A federal court denies the appeal of suspected al-Qaeda operative Ali Saleh Kahlah al-Marri , who is challenging his classification as an enemy combatant (see June 23, 2003) and wants his case heard in Illinois, where he attended college. The court rules that al-Marri’s case belongs in South Carolina, where he is being held in strict isolation in the Charleston naval brig. Mark Berman, an attorney for al-Marri, says the ruling will be appealed to the Supreme Court. (The Court will decline to review the decision (see October 4, 2004).) Al-Marri’s lawyers say that wherever the case is heard, they will seek a writ of habeas corpus to require the government to justify its detention of their client. Government lawyers say they have evidence that al-Marri was in the US helping al-Qaeda plan terrorist attacks, but have refused to provide that evidence. [Associated Press, 3/10/2004]

Entity Tags: US Supreme Court, Alice Fisher, Al-Qaeda, Mark Berman, Ali Saleh Kahlah al-Marri

Timeline Tags: Torture of US Captives

Chuck Rosenberg.Chuck Rosenberg. [Source: Associated Press / Charles Dharapak]Vice President Dick Cheney challenges objections to the White House’s secret, warrantless surveillance program (see Early 2002) by Justice Department officials. Cheney makes his objections during a meeting attended by high-level White House and Justice Department officials, but this does not come to light until a 2007 testimony by Deputy Attorney General James Comey (see May 15, 2007). [Washington Post, 6/7/2007] (Comey will step down from his post in mid-2005.) [Law.com, 4/21/2005] The White House meetings take place one day before White House officials journey to Attorney General John Ashcroft’s hospital room to try to force Ashcroft to give his approval for the NSA-managed surveillance program (see March 10-12, 2004). Ashcroft will refuse to give his approval. Cheney’s key role in leading what the Washington Post calls “a fierce internal battle over the legality of the warrantless surveillance program” is not known until Comey’s 2007 testimony. The White House meeting, held to discuss Justice Department objections to the NSA program, is attended by Cheney, White House counsel and future attorney general Alberto Gonzales, Cheney’s chief counsel David Addington, and others. Comey will testify that at the time, eight Justice Department officials are prepared to resign if the White House doesn’t back down on forcing the department to sign off on the program. Those officials include FBI director Robert Mueller, US attorney Chuck Rosenberg of the northern Virginia district, and Office of Legal Counsel head Jack Goldsmith. [Washington Post, 6/7/2007]

Entity Tags: Washington Post, US Department of Justice, Robert S. Mueller III, John Ashcroft, Alberto R. Gonzales, Chuck Rosenberg, David S. Addington, Richard (“Dick”) Cheney, James B. Comey Jr., Jack Goldsmith

Timeline Tags: Civil Liberties

Attorney General John Ashcroft is visited by a squad of top White House and Justice Department officials just hours after Ashcroft underwent emergency surgery for severe, acute pancreatis, and is still recuperating in intensive care. The White House officials attempt to persuade the barely lucid Ashcroft to give his formal approval for the secret National Security Agency warrantless wiretapping surveillance program (see Early 2002), which requires the Justice Department to periodically review and approve it. [National Public Radio, 5/15/2007; Washington Post, 5/16/2007; Washington Post, 6/7/2007; Associated Press, 6/7/2007]
Comey, Goldsmith Rush to Head Off Aides - Deputy Attorney General James Comey testifies to the incident before the Senate Judiciary Committee over three years later (see May 15, 2007). Comey will recall that he and Ashcroft had decided not to recertify the surveillance program due to their concerns over its legality and its lack of oversight. On March 9, Ashcroft was rushed to the hospital with severe pancreatis. As per Justice Department procedures, Comey became acting attorney general for the duration of Ashcroft’s incapacity. The next night, just hours after Ashcroft underwent emergency surgery for the removal of his gallbladder, Comey receives an urgent phone call from Ashcroft’s aide, David Ayres, who himself has just spoken with Ashcroft’s wife Janet. Ayres tells Comey that White House counsel Alberto Gonzales and White House chief of staff Andrew Card are en route to Ashcroft’s hospital room to pressure Ashcroft to sign off on the program recertification. A furious Comey telephones FBI director Robert Mueller, and the two, accompanied by aides, race separately through the Washington, DC streets with sirens wailing to reach Ashcroft’s hospital room; they beat Gonzales and Card to the room by a matter of minutes. “I was concerned that, given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to do that,” Comey will testify, and will add that to him, Ashcroft appears “pretty bad off.” En route, Mueller instructs the security detail protecting Ashcroft not to allow Card or Gonzales to eject Comey from the hospital room. Card and Gonzales enter just minutes later. [Washington Post, 5/16/2007; PBS, 5/16/2007] “And it was only a matter of minutes that the door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card,” Comey will testify. “They came over and stood by the bed, greeted the attorney general very briefly, and then Mr. Gonzales began to discuss why they were there—to seek his approval for a matter.” [National Public Radio, 5/15/2007] Gonzales is holding an envelope containing an executive order from Bush. He tells Ashcroft that he needs to sign off on the order, thereby giving the wiretapping program Justice Department authorization to continue unabated. Comey will testify that Ashcroft “lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me. [Ashcroft then adds] ‘But that doesn’t matter, because I’m not the attorney general. There is the attorney general,’” pointing at Comey. Gonzales and Card leave the room without ever acknowledging Comey’s presence. “I was angry,” Comey will recall. “I thought I just witnessed an effort to take advantage of a very sick man, who did not have the powers of the attorney general because they had been transferred to me.” [Washington Post, 5/16/2007; Washington Post, 6/7/2007] “That night was probably the most difficult night of my professional life, so it’s not something I forget,” Comey will testify. [PBS, 5/16/2007] Goldsmith is also in the room; like Comey, Goldsmith receives a phone call alerting him to Gonzales’s and Card’s visit, and like Comey, Goldsmith races through the Washington streets to arrive at Ashcroft’s room minutes before Gonzales and Card arrive. He, too, is astonished at the brazen, callous approach taken by the two White House officials against Ashcroft, who he describes as laying in his darkened hospital room, with a bright light shining on him and tubes and wires protruding from his body. “Ashcroft, who looked like he was near death, sort of puffed up his chest,” Goldsmith later recalls. “All of a sudden, energy and color came into his face, and he said that he didn’t appreciate them coming to visit him under those circumstances, that he had concerns about the matter they were asking about and that, in any event, he wasn’t the attorney general at the moment; Jim Comey was. He actually gave a two-minute speech, and I was sure at the end of it he was going to die. It was the most amazing scene I’ve ever witnessed.” As Gonzales and Card leave the room, Goldsmith will recall, “Mrs. Ashcroft, who obviously couldn’t believe what she saw happening to her sick husband, looked at Gonzales and Card as they walked out of the room and stuck her tongue out at them. She had no idea what we were discussing, but this sweet-looking woman sticking out her tongue was the ultimate expression of disapproval. It captured the feeling in the room perfectly.” [New York Times Magazine, 9/9/2007] After Gonzales and Card leave the room, Comey asks Mueller to instruct the security detail not to let any more visitors into the room, except for family, without Mueller’s approval, apparently in order to keep Gonzales and Card from attempting to return. [US Department of Justice, 8/14/2007]
Cheney or Bush Behind Visit? - The hospital visit is sparked by at least two events: a meeting of White House officials a day earlier, where Vice President Dick Cheney attempted to push reluctant Justice Department officials to approve the surveillance program (see March 9, 2004), and Comey’s own refusal to certify the legality of the surveillance, as noted above. [Washington Post, 6/7/2007] Some believe that the timing of the incident shows that Cheney is the one who ordered Gonzales and Card to go to Ashcroft’s hospital room; Comey personally informed Cheney of his decision not to give his approval to the program. Speculation about Cheney’s ordering of the visit cannot be confirmed, [National Journal, 7/7/2007; National Journal, 8/16/2007] though the New York Times states flatly in an op-ed that “Vice President Dick Cheney sent Mr. Gonzales and [Card] to Mr. Ashcroft’s hospital room to get him to approve the wiretapping.” [New York Times, 7/29/2007] Three years later, Goldsmith will tell Congress that he believes Bush himself authorized the visit (see October 2, 2007).
Meeting in the White House - Minutes after the incident in Ashcroft’s hospital room, Card orders Comey to appear at a late-night meeting at the White House; Comey refuses to go alone, and pulls Solicitor General Theodore Olson from a dinner party to act as a witness to the meeting. “Mr. Card was very upset and demanded that I come to the White House immediately. After the conduct I had just witnessed, I would not meet with him without a witness present,” Comey will testify. “[Card] replied, ‘What conduct? We were just there to wish him well.’ And I said again, ‘After what I just witnessed, I will not meet with you without a witness. And I intend that witness to be the solicitor general of the United States.’” On March 11, after an al-Qaeda bombing in Madrid kills over 200 people (see 7:37-7:42 a.m., March 11, 2004, Bush recertifies the program without the approval of the Justice Department. Comey responds by drafting a letter of resignation, effective March 12. “I couldn’t stay if the administration was going to engage in conduct that the Department of Justice had said had no legal basis,” he will testify. “I just simply couldn’t stay.” Comey is not the only one threatening to resign; he is joined by Ashcroft, Mueller, Ayres, Goldsmith, Justice Department official Patrick Philbin, and others, who all intend to resign en masse if Bush signs off on the surveillance program without Justice Department support. But Ayres persuades Comey to delay his resignation; in Comey’s words, Ayres “asked me something that meant a great deal to him, and that is that I not resign until Mr. Ashcroft was well enough to resign with me.” Instead of resigning on March 12, Bush meets separately with Comey and Mueller, and promises to make changes in the program (see March 12-Mid-2004). Those changes have never been disclosed, though some changes are later found to be the creation of a secret review court to oversee the surveillance court, and the clarification of what exactly constitutes “probable cause” for surveillance. Comey will testify,…“Director Mueller came to me and said that, ‘The president told me that the Department of Justice should get this where it wants to be—to do what the department thinks is right.’ And I took that mandate and set about to do that, and I accomplished that.” [Newsweek, 1/9/2006; National Public Radio, 5/15/2007; New York Times, 5/15/2007; Washington Post, 5/16/2007; PBS, 5/16/2007; Associated Press, 6/7/2007] Goldsmith recalls his surprise when Congress later approves the program and brings it somewhat under the supervision of the FISA court. “I was sure the government was going to melt down,” Goldsmith says in 2007. “No one anticipated they were going to reverse themselves.” [New York Times Magazine, 9/9/2007]
Did Gonzales Break the Law? - It is also possible that Gonzales and Card may have broken the law in discussing classified information in a public venue. “Executive branch rules require sensitive classified information to be discussed in specialized facilities that are designed to guard against the possibility that officials are being targeted for surveillance outside of the workplace,” says law professor Neal Katyal, a national security adviser under Bill Clinton. “The hospital room of a cabinet official is exactly the type of target ripe for surveillance by a foreign power. And the NSA program is particularly sensitive. One government official familiar with the program notes, “Since it’s that program, it may involve cryptographic information,” some of the most highly protected information in the intelligence community. The law governing disclosure of classified information is quite strict, and numerous government and military officials have been investigated for potential violations in the past. “It’s the one you worry about,” says the government official. Katyal says that if Gonzales did indeed break the law, the Justice Department cannot run any investigation into the matter: “The fact that you have a potential case against the Attorney General himself calls for the most scrupulous and independent of investigations.” Many others are dismayed and confused by the contradictions between the absolute secrecy surrounding the program, and Gonzales’s and Card’s willingness to openly discuss it in such an insecure location, and in front of witnesses not cleared to hear details about the program—including Ashcroft’s wife, who is present in the room while the officials seek her husband’s signature. Former NSA general counsel Elizabeth Parker says not enough is known about the meeting to be sure whether or not the law was broken. “Obviously things can be discussed in ways that don’t divulge highly classified information,” she says. “The real issue is what is it about this program that is so classified that can’t allow it to be discussed in a Congressional setting, even a closed Congressional hearing. In order to have confidence in what this program is all about, one needs to understand better what the approach is and how it affects the rights of American citizens.”
'Horrible' Judgment - John Martin, who oversaw Justice’s counterintelligence division for 26 years, calls Gonzales’s and Card’s attempt to override Comey’s authority as acting attorney general as more than just “bad judgment.” Martin calls their judgement “horrible…they both knew or should have known that the Attorney General while he was so incapacitated had delegated his power to his deputy Jim Comey. Comey’s actions were heroic under the circumstances.” [Time, 5/17/2007]
Snow Dismisses Concerns - In May 2007, after Comey’s testimony to the Senate hits the media, White House press secretary Tony Snow dismisses any concerns about the inappropriateness of Gonzales’s and Card’s pressuring of Ashcroft in his hospital room, and skips over the fact that Comey, not Ashcroft, had the final authority of the Attorney General at the time. “Because he had an appendectomy, his brain didn’t work?” Snow will say of Ashcroft. “Jim Comey can talk about whatever reservations he may have had. But the fact is that there were strong protections in there, this program has saved lives and it’s vital for national security and furthermore has been reformed in a bipartisan way.” Judiciary Committee member Charles Schumer (D-NY) has a different take on the incident: “What happened in that hospital room crystallized Mr. Gonzales’ view about the rule of law: that he holds it in minimum low regard.” [Associated Press, 6/7/2007] Senate Democrats are preparing to introduce a resolution of no-confidence against Gonzales. [Time, 5/17/2007]

Entity Tags: National Security Agency, George W. Bush, Jack Goldsmith, James B. Comey Jr., John Ashcroft, Elizabeth Parker, Janet Ashcroft, Richard (“Dick”) Cheney, John Martin, David Ayres, Alberto R. Gonzales, Andrew Card, US Department of Justice, Charles Schumer, Theodore (“Ted”) Olson, Tony Snow, Robert S. Mueller III, Senate Judiciary Committee, Patrick F. Philbin, Neal Katyal

Timeline Tags: Civil Liberties

Multiple bombs destroyed this train in Madrid, Spain.Multiple bombs destroyed this train in Madrid, Spain. [Source: Rafa Roa/ Cover/ Corbis] (click image to enlarge)At about 7:40 a.m., four trains are bombed in Madrid, Spain, killing 191 people and injuring about 1,800 more. These are not suicide bombings, but were set by cell phone timers. Basque separatists are initially blamed, but evidence later points to people loosely associated with al-Qaeda. It will later be reported that 34 out of the 40 main people suspected or arrested for involvement in the bombings were under surveillance in Spain prior to the bombings (see Shortly Before March 11, 2004). Most of the bombers had never been to any training camps. In 2006, Spanish investigators will announce that the bombings were inspired by al-Qaeda, but not ordered or funded by al-Qaeda’s leadership. Specifically, the bombers are said to have been inspired by a speech allegedly given by Osama bin Laden in October 2003 (see October 19, 2003). [New Yorker, 7/26/2004; Associated Press, 3/9/2006] However, there will also be evidence against this that will not be refuted. For instance, the investigators will claim that all the key participants are either dead or in jail, but a number of them remain free overseas. For example, Amer el-Azizi is implicated in the Madrid bombings (see Before March 11, 2004), and he has links to well-known al-Qaeda figures such as Khalid Shaikh Mohammed (see (November 2001)), Ramzi bin al-Shibh (see Before July 8, 2001), and Zacarias Moussaoui (see Before August 16, 2001). In late 2002 or early 2003, el-Azizi is said to have met with Serhane Abdelmajid Fakhet, one of the key bombers, to discuss a bombing. He reportedly gave Fakhet permission to stage a bombing in the name of al-Qaeda, but it is unclear if he gave any funding or other assistance. [Associated Press, 4/10/2004; New Yorker, 7/26/2004] There are suggestions that el-Azizi was protected by Spanish intelligence (see Shortly After November 21, 2001), so the government may not be eager to highlight his involvement. Fakhet, considered one of the three masterminds of the bombings, may have been a government informant (see Shortly After October 2003). Many of the other plotters also appear to have been informants, and almost all the plotters were under surveillance before the bombings (see Shortly Before March 11, 2004). Former counterterrorism “tsar” Richard Clarke will say later in the month: “If we catch [bin Laden] this summer, which I expect, it’s two years too late. Because during those two years when forces were diverted to Iraq… al-Qaeda has metamorphosized into a hydra-headed organization with cells that are operating autonomously like the cells that operated in Madrid recently.” [USA Today, 3/28/2004] It will be noted that the 9/11 terrorist attacks in the US and the Madrid train bombings are separated by a total of 911 days. [MSNBC, 3/19/2004; Bloomberg, 4/22/2005]

Entity Tags: Osama bin Laden, Amer el-Azizi, Al-Qaeda, Richard A. Clarke, Serhane Abdelmajid Fakhet

Timeline Tags: Complete 911 Timeline

After senior Justice Department officials object to the possible illegality of the National Security Agency’s secret domestic surveillance program, and refuse to sign off on its continued use, the program is suspended for several months while Justice Department officials conduct a secret audit of the program. Attorney General John Ashcroft will recertify the program at the end of the month (see Late March, 2004). The suspension is prompted by acting Attorney General James Comey’s refusal to approve the program when it comes up for its regular 45-day review, and a subsequent late-night hospital visit by White House officials Andrew Card and Alberto Gonzales to the hospital room of Attorney General John Ashcroft, where they unsuccessfully attempt to pressure Ashcroft, recuperating from surgery, to overrule Comey and approve the program (see March 10-12, 2004). Bush himself has personally reauthorized the program over 30 times since its inception after the 9/11 attacks (see Early 2002), and reauthorizes it himself after Comey and Ashcroft refuse to give it their approval. This reauthorization prompts a threat of mass resignations by Justice Department officials unless the program is brought under increased oversight. Bush will allow the Justice Department to recommend changes to the program, though those changes have never been made public. The Justice Department audits a selection of cases to see how the NSA is running the program, scrutinizing how NSA officials determine that they have probable cause to wiretap US citizens’ phones and e-mail accounts. The results of that audit have not been made public. When the program was first authorized by Bush’s executive order in early 2002, it was so secret that then-Deputy Attorney General Larry Thompson, who was active in most of the government’s most highly classified counterterrorism operations, was not given access to the program. That decision, among other elements of the program, led many Justice Department officials to worry that the program was operating outside of the Constitution and without proper oversight. Comey, Thompson’s successor, was eventually given authorization to take part in the program and to review intelligence data produced by it. Justice Department officials say that Comey takes part in overseeing the reforms that are put into place during the current audit. However, those reforms do not restrict the NSA’s authority to independently choose its eavesdropping targets, and NSA shift supervisors have the authority to decide for themselves whether there is enough evidence against a US citizen to warrant a secret wiretap. No one at the Justice Department or in the White House needs to be consulted before a wiretap is put into place. [New York Times, 12/31/2005]

Entity Tags: US Department of Justice, National Security Agency, Larry D. Thompson, Associated Press, James B. Comey Jr., John Ashcroft, Alberto R. Gonzales, George W. Bush, Andrew Card

Timeline Tags: Civil Liberties

Attorney General John Ashcroft recertifies the NSA’s warrantless wiretapping program as being within the law, three weeks after he and his deputy, James Comey, refused to certify it. The program had come under question in early 2004, when Jack Goldsmith, the head of the Justice Department’s Office of Legal Counsel, wrote to Ashcroft and Comey expressing his doubts about the program’s legality (see September 9, 2007). For those three weeks, the program operated without Justice Department approval; President Bush personally recertified it himself, though it was suspended and subjected to an internal review (see March 12-Mid-2004). Ashcroft had previously refused to recertify the program while recuperating from surgery, despite pressure from White House officials Alberto Gonzales and Andrew Card (see March 10-12, 2004). Ashcroft, Comey, Goldsmith, and other Justice Department officials had even threatened to resign en masse if Bush recertified the program without their department’s support; Bush promised to revamp the program to address Ashcroft and Comey’s objections to the program, though what those changes are remains unclear. [Boston Globe, 5/16/2007; Associated Press, 6/7/2007]

Entity Tags: Andrew Card, Alberto R. Gonzales, George W. Bush, Jack Goldsmith, National Security Agency, James B. Comey Jr., US Department of Justice, John Ashcroft

Timeline Tags: Civil Liberties

A deranged Abu Ghraib detainee wanders the halls covered in human feces on December 12, 2003. MP Ivan Frederick stands behind him with a stick.A deranged Abu Ghraib detainee wanders the halls covered in human feces on December 12, 2003. MP Ivan Frederick stands behind him with a stick. [Source: Public domain]The Abu Ghraib prison photos are leaked to CBS. The network informs the Pentagon that it will broadcast a story on the prison abuses and include the photos. But the network delays broadcasting the story at the request of Gen. Richard Myers. [Guardian, 4/30/2004; CBS News, 5/6/2004; Los Angeles Times, 5/6/2004; CNS News, 5/7/2004]

Entity Tags: Richard B. Myers

Timeline Tags: Torture of US Captives

At a speech in Hershey, Pennsylvania, supporting the USA Patriot Act (see October 26, 2001), President Bush tells listeners that all US surveillance efforts are done with warrants from the Foreign Intelligence Surveillance Act (FISA) Court: “For years, law enforcement used so-called roving wire taps to investigate organized crime. You see, what that meant is if you got a wire tap by court order—and, by the way, everything you hear about requires court order, requires there to be permission from a FISA court, for example.… See, with court approval, we have long used roving wire taps to lock up monsters—mobsters. Now [with the Patriot Act in effect] we have a chance to lock up monsters, terrorist monsters.” [White House, 4/19/2004] The next day, Bush makes a similar claim during another pro-Patriot Act speech in Buffalo. He tells listeners: “[T]here are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires—a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution. But a roving wiretap means—it was primarily used for drug lords. A guy, a pretty intelligence drug lord would have a phone, and in old days they could just get a tap on that phone. So guess what he’d do? He’d get him another phone, particularly with the advent of the cell phones. And so he’d start changing cell phones, which made it hard for our DEA types to listen, to run down these guys polluting our streets. And that changed, the law changed on—roving wiretaps were available for chasing down drug lords. They weren’t available for chasing down terrorists, see? And that didn’t make any sense in the post-9/11 era. If we couldn’t use a tool that we’re using against mobsters on terrorists, something needed to happen. The Patriot Act changed that. So with court order, law enforcement officials can now use what’s called roving wiretaps, which will prevent a terrorist from switching cell phones in order to get a message out to one of his buddies.” [White House, 4/20/2004] 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] Klein will call Bush’s description of the surveillance program “disingenuous,” and continue: “They present it as about phone calls. They’re just watching a few bad people who make phone calls to al-Qaeda and the Middle East, and you notice they don’t talk about the Internet hardly at all. That part of it hasn’t been revealed, because if they did, Americans would realize it’s not just a few people; it’s everybody, because the data they’re handing over is not selected out. When you run fiber optics through a splitter and you send all that data to a secret room, there’s no selecting going on there at all.… They have no way of sifting it out unless they look through it later. Now they can claim, ‘Oh, we are right as rain; we’re only doing the legal thing and selecting out a few people that we’re legally entitled to,’ but that’s only after they get all the data. The analogy I use: If the government claims: ‘Well, when you do your taxes, why don’t you just write me a blank check and we’ll fill in the amount? Don’t worry. We’ll do it legal. We’ll fill in the right amount,’ would you do that? Nobody would trust the government by writing a blank check to them. It’s the same thing with the data we’re giving them.… [T]he Fourth Amendment specifically bans general warrants. It calls for specific warrants in which the things to be seized and the persons to be seized are specifically named. There’s a reason for that. It’s to protect against arbitrary government power. And what they’ve done is to trample over the Fourth Amendment by basically instituting a general warrant on the Internet.” [PBS Frontline, 5/15/2007]

Entity Tags: Foreign Intelligence Surveillance Court, Mark Klein, National Security Agency, George W. Bush

Timeline Tags: Civil Liberties

Deputy Solicitor General Paul Clement appears before the Supreme Court to argue for the administration in Hamdi v. Rumsfeld (see June 28, 2004). Clement argues that the Court has no role in the White House’s decision to hold suspected terrorists designated as “enemy combatants” without trial or charge. During oral arguments, several of the justices ask Clement if the Bush administration considers itself bound by the Convention against Torture (see October 21, 1994). Clement replies, “The United States is signatory to conventions that prohibit torture and that sort of thing, and the United States is going to honor its treaty obligations.” He continues: “I wouldn’t want there to be any misunderstanding about this. It’s also the judgment of those involved in this process that the last thing you want to do is torture somebody or do something along those lines.” That evening, CBS’s 60 Minutes II airs the first photos of tortured prisoners at Abu Ghraib (see April 28, 2004). [Oral Arguments, Hamdi v. Rumsfeld, 4/28/2004 pdf file; Savage, 2007, pp. 188-189]

Entity Tags: Convention Against Torture, Paul Clement, US Supreme Court, Bush administration (43)

Timeline Tags: Civil Liberties

Human Rights Watch sends a letter to US National Security Adviser Condoleezza Rice informing her that the ill treatment and torture of prisoners by the US military in Iraq is not limited to isolated incidents. The organization emphasizes that it is a systemic and widespread problem and urges the US to take immediate action to ensure that imprisonment and interrogation practices comply with international law. [Roth and Malinowski, 5/3/2004; Human Rights Watch, 5/7/2004]

Entity Tags: Condoleezza Rice, Human Rights Watch

Timeline Tags: Torture of US Captives

Major General Geoffrey Miller says during a Coalition Provisional Authority briefing that while physical contact between the interrogator and detainees is prohibited, “sleep deprivation and stress positions and all that could be used—but they must be authorized.” (see April 16, 2003) But as Amnesty International later notes in a letter to George Bush, “The United Nations Committee against Torture, the expert body established by the Convention against Torture (see October 21, 1994) has expressly held that restraining detainees in very painful positions, hooding, threats, and prolonged sleep deprivation are methods of interrogation which violate the prohibition on torture and cruel, inhuman, or degrading treatment.” [Amnesty International, 5/7/2004]

Entity Tags: Geoffrey D. Miller, George W. Bush, Amnesty International

Timeline Tags: Torture of US Captives

Speaking about the Abu Ghraib scandal (see April 28, 2004), President Bush promises a “full investigation.” In an interview with Al Arabiya, he says: “It’s important for people to understand that in a democracy, there will be a full investigation. In other words, we want to know the truth. In our country, when there’s an allegation of abuse… there will be a full investigation, and justice will be delivered.… It’s very important for people and your listeners to understand that in our country, when an issue is brought to our attention on this magnitude, we act. And we act in a way in which leaders are willing to discuss it with the media.… In other words, people want to know the truth. That stands in contrast to dictatorships. A dictator wouldn’t be answering questions about this. A dictator wouldn’t be saying that the system will be investigated and the world will see the results of the investigation.” [White House, 5/5/2004] In April 2009, after significant revelations of Bush torture policies have hit the press (see April 16, 2009 and April 21, 2009), Atlantic columnist Andrew Sullivan will write: “Bush personally authorized every technique revealed at Abu Ghraib. He refused to act upon the International Committee of the Red Cross’s report that found that he had personally authorized the torture of prisoners, in violation of the Geneva Conventions and the UN Convention on Torture and domestic law against cruel and inhuman treatment. A refusal to investigate and prosecute Red Cross allegations of torture is itself a violation of the Geneva Accords.” [Atlantic Monthly, 4/27/2009]

Entity Tags: Andrew Sullivan, George W. Bush

Timeline Tags: Torture of US Captives

The CIA’s inspector general, John Helgerson, releases a highly classified report from his office that examines allegations of torture from the time period between September 2001 (after the 9/11 attacks, when the CIA first began detaining suspected terrorists and informants) and October 2003. In the report, Helgerson warns that some aggressive interrogation techniques approved for use by the CIA since early 2002 (see Mid-March 2002) might violate some provisions of the international Convention Against Torture (see October 21, 1994). The report doubts the Bush administration position that the techniques do not violate the treaty because the interrogations take place overseas on non-US citizens. It will be released, in heavily redacted form, to the public in August 2009 (see August 24, 2009). From what becomes known of the report’s contents, the CIA engaged in a number of illegal and ethically questionable tactics on the part of its interrogators. Some of these tactics include the use of handguns, power drills, threats, smoke, and mock executions. Many of the techniques used against detainees were carried out without authorization from higher officials. The report says that the CIA’s efforts to provide “systematic, clear, and timely guidance” to interrogators were “inadequate at first” and that that failure largely coincided with the most significant incidents involving the unauthorized coercion of detainees, but as guidelines from the Justice Department accumulated over several years, oversight “improved considerably.” The report does not conclude that the techniques reviewed constitute torture, but it does find that they appear to constitute cruel, inhuman, and degrading treatment under the Convention. [Central Intelligence Agency, 5/7/2004 pdf file; New York Times, 11/9/2005; MSNBC, 8/24/2009; Washington Post, 8/24/2009]
Physical Abuse - The report defines torture as an act “intended to inflict severe physical or mental pain and suffering.” It then begins detailing such acts. Incidents of physical abuse include:
bullet One incident caused the death of an Afghani detainee. According to the report: “An agency independent contractor who was a paramilitary officer is alleged to have severely beaten the detainee with a large metal flashlight and kicked him during interrogation sessions. The detainee died in custody.” [Central Intelligence Agency, 5/7/2004 pdf file; New York Times, 8/24/2009; Washington Post, 8/24/2009; MSNBC, 8/25/2009] In a 2009 statement, Helgerson will write: “In one extreme case, improvisation took a disastrous turn when an agency contractor in rural Afghanistan—acting wholly outside the approved program and with no authorization or training—took it upon himself to interrogate a detainee. This officer beat the detainee and caused his death. Following an investigation of the incident, this contract employee was convicted of assault and is now in prison.” [Central Intelligence Agency, 5/7/2004 pdf file; Washington Post, 8/24/2009]
bullet Waterboarding was routinely used, in a manner far exceeding previously issued guidelines. Interrogators “continuously applied large volumes of water,” and later explained that they needed to make the experience “more poignant and convincing.” The CIA interrogators’ waterboarding technique was far more aggressive than anything used in military survival training such as the SERE program (see December 2001). Eventually, the agency’s Office of Medical Services criticized the waterboarding technique, saying that the “frequency and intensity” with which it was used could not be certified as “efficacious or medically safe.” [Central Intelligence Agency, 5/7/2004 pdf file; New York Times, 8/24/2009; Washington Post, 8/24/2009] The report refers in particular to the treatment of 9/11 mastermind Khalid Shaikh Mohammed (KSM), who was reportedly waterboarded more than once (see Shortly After February 29 or March 1, 2003). Waterboarding is considered torture and is illegal in the US. The report also raises concern that the use of these techniques could eventually cause legal troubles for the CIA officers who used them. [New York Times, 11/9/2005]
Helgerson will write: “We found that waterboarding had been utilized in a manner that was inconsistent with the understanding between CIA and the Department of Justice. The department had provided the agency a written legal opinion based on an agency assurance that although some techniques would be used more than once, repetition would ‘not be substantial.’ My view was that, whatever methodology was used to count applications of the waterboard, the very large number of applications to which some detainees were subjected led to the inescapable conclusion that the agency was abusing this technique.” [Central Intelligence Agency, 5/7/2004 pdf file; Washington Post, 8/24/2009]
bullet In July 2002, a CIA officer used a “pressure point” technique “with both of his hands on the detainee’s neck, the officer manipulated his finger to restrict the detainee’s carotid artery.” The carotid artery supplies the brain with oxygenated blood; such “manipulat[ion]” could lead to unconsciousness or even death. A second officer “reportedly watched his eyes to the point that the detainee would nod and start to pass out. Then the officer shook the detainee to wake him. This process was repeated for a total of three applications on the detainee.”
bullet A technique routinely used by CIA interrogators was the “hard takedown,” which involves an interrogator grabbing a detainee and slamming him to the floor before having the detainee moved to a sleep-deprivation cell. One detainee was hauled off his feet by his arms while they were bound behind his back with a belt, causing him severe pain.
bullet Another routinely used technique is “water dousing,” apparently a variant of waterboarding, in which a detainee is laid on a plastic sheet and subjected to having water sluiced over him for 10 to 15 minutes. The report says that at least one interrogator believed the technique to be useful, and sent a cable back to CIA headquarters requesting guidelines. A return cable explained that a detainee “must be placed on a towel or sheet, may not be placed naked on the bare cement floor, and the air temperature must exceed 65 degrees if the detainee will not be dried immediately.”
- - Detainee Abd al-Rahim al-Nashiri, suspected of plotting the 2000 bombing of the USS Cole (see October 12, 2000), was repeatedly “bathed” with hard-bristled scrub brushes in order to inflict pain. The brushes caused abrasions and bleeding. [Central Intelligence Agency, 5/7/2004 pdf file; New York Times, 8/24/2009; Washington Post, 8/24/2009; MSNBC, 8/25/2009]
Helgerson will write: “Agency officers who were authorized to detain and interrogate terrorists sometimes failed in their responsibilities. In a few cases, agency officers used unauthorized, threatening interrogation techniques. The primary, common problem was that management controls and operational procedures were not in place to avoid the serious problems that arose, jeopardizing agency employees and detainees alike.” [Central Intelligence Agency, 5/7/2004 pdf file; Washington Post, 8/24/2009]
Mental Abuse - Numerous instances of mental and emotional abuse were also documented.
bullet In 2002, interrogators staged a mock execution to intimidate a detainee. CIA officers began screaming outside the room where the detainee was being interrogated. When leaving the room, he “passed a guard who was dressed as a hooded detainee, lying motionless on the ground, and made to appear as if he had been shot to death.” The report says that after witnessing this performance, the detainee “sang like a bird.”
bullet Handguns and power drills were used to threaten detainees with severe bodily harm or death. One such instance involved al-Nashiri. An American, whose name is not released but who is identified as not being a trained interrogator and lacking authorization to use “enhanced methods,” used a gun and a power drill to frighten him. The American pointed the gun at al-Nashiri’s head and “racked” a round in the chamber. The American also held a power drill near al-Nashiri and revved it, while al-Nashiri stood naked and hooded. [Central Intelligence Agency, 5/7/2004 pdf file; New York Times, 8/24/2009; MSNBC, 8/24/2009; MSNBC, 8/25/2009]
In 2009, reporter David Ignatius will say he finds the “image of a CIA interrogator standing with a power drill next to somebody he’s interrogating… particularly horrific, because that’s a technique that’s been used in torturing people in Iraq.” [PBS, 8/24/2009]
bullet A CIA interrogator told al-Nashiri that if he did not cooperate with his captors, “we could get your mother in here” and “we can bring your family in here.” The report says that the interrogator wanted al-Nashiri to infer for “psychological” reasons that his female relatives might be sexually abused. The interrogator has denied actually threatening to sexually abuse al-Nashiri’s mother or other relatives.
bullet An interrogator threatened the lives of one detainee’s children. According to the report, an “interrogator said to Khalid Shaikh Mohammed that if anything else happens in the United States, quote, ‘we’re going to kill your children.’” According to the report, the debriefer was trying to exploit a belief in the Middle East that interrogation techniques included sexually abusing female relatives in front of the detainees. It was during these same interrogation sessions that Mohammed was waterboarded 183 times in a single month (see April 16, 2009). [Central Intelligence Agency, 5/7/2004 pdf file; New York Times, 8/24/2009; MSNBC, 8/24/2009; MSNBC, 8/25/2009]
Fear of Recriminations - According to the report, there was concern throughout the agency over the potential legal consequences for agency officers. Officers “expressed unsolicited concern about the possibility of recrimination or legal action” and said “they feared that the agency would not stand behind them,” according to the report. [Central Intelligence Agency, 5/7/2004 pdf file; New York Times, 8/24/2009] According to the report, CIA personnel “are concerned that public revelation” of the program will “seriously damage” personal reputations as well as “the reputation and effectiveness of the agency itself.” One officer is quoted as saying he could imagine CIA agents ending up before the World Court on war crimes charges. “Ten years from now, we’re going to be sorry we’re doing this,” another officer said. But “it has to be done.” [Central Intelligence Agency, 5/7/2004 pdf file; Washington Post, 8/24/2009] Helgerson will write: “This review of the agency’s early detention and interrogation activities was undertaken in part because of expressions of concern by agency employees that the actions in which they were involved, or of which they were aware, would be determined by judicial authorities in the US or abroad to be illegal. Many expressed to me personally their feelings that what the agency was doing was fundamentally inconsistent with long established US government policy and with American values, and was based on strained legal reasoning. We reported these concerns.” [Central Intelligence Agency, 5/7/2004 pdf file; Washington Post, 8/24/2009]
Recommendations - The report lists 10 recommendations for changes in the treatment of detainees, but it will not be reported what these are. Eight of the recommendations are apparently later adopted. Former CIA assistant general counsel John Radsan will later comment, “The ambiguity in the law must cause nightmares for intelligence officers who are engaged in aggressive interrogations of al-Qaeda suspects and other terrorism suspects.” [New York Times, 11/9/2005]
Approval, Contradictory Statements by Attorney General - The report says that Attorney General John Ashcroft approved all of these actions: “According to the CIA general counsel, the attorney general acknowledged he is fully aware of the repetitive use of the waterboard and that CIA is well within the scope of the DOJ opinion that the authority given to CIA by that opinion. The attorney general was informed the waterboard had been used 119 times on a single individual.” In 2009, reporter Michael Isikoff will say that the contents of the report “conflict… with the public statements that have been made over the years by Bush administration officials and CIA directors.” In 2007, then-CIA Director Michael Hayden will tell the Council on Foreign Relations that the agency’s detention and interrogation program was “very carefully controlled and lawfully conducted—has been carefully controlled and lawfully conducted.” Isikoff will say, “It’s kind of hard to square that with… what was in the CIA inspector general report that had been presented five years ago in 2004.” [Central Intelligence Agency, 5/7/2004 pdf file; MSNBC, 8/25/2009]
Questions of Effectiveness - The report does document that some interrogations obtained critical information to identify terrorists and stop potential plots, and finds that some imprisoned terrorists provided more information after being exposed to brutal treatment (see August 24, 2009). It finds that “there is no doubt” that the detention and interrogation program itself prevented further terrorist activity, provided information that led to the apprehension of other terrorists, warned authorities of future plots, and helped analysts complete an intelligence picture for senior policymakers and military leaders. But whether the harsh techniques were effective in this regard “is a more subjective process and not without some concern,” the report continues. It specifically addresses waterboarding as an illegal tactic that is not shown to have provided useful information. “This review identified concerns about the use of the waterboard, specifically whether the risks of its use were justified by the results, whether it has been unnecessarily used in some instances,” the report reads, and notes that in many instances, the frequency and volume of water poured over prisoners’ mouths and noses may have exceeded the Justice Department’s legal authorization. In the instance of detainee Abu Zubaida, the report finds, “It is not possible to say definitively that the waterboard is the reason for Abu [Zubaida]‘s increased production [of intelligence information], or if another factor, such as the length of detention, was the catalyst.” In 2009, Isikoff will note that the effectiveness of torture is not clarified by the report. “As you know, Vice President [Dick] Cheney and others who had defended this program have insisted time and again that valuable intelligence was gotten out of this program. You could read passages of this report and conclude that that is the case, that they did get—some passages say important intelligence was gotten. But then others are far more nuanced and measured, saying we don’t really know the full story, whether alternative techniques could have been used.” [Central Intelligence Agency, 5/7/2004 pdf file; New York Times, 8/24/2009; MSNBC, 8/24/2009; Washington Post, 8/24/2009; MSNBC, 8/25/2009]
Cheney Blocked Report's Completion - Reporter Jane Mayer later learns that Cheney intervened to block Helgerson from completing his investigation. Mayer will write that as early as 2004, “the vice president’s office was fully aware that there were allegations of serious wrongdoing in the [interrogation] program.” Helgerson met repeatedly and privately with Cheney before, in Mayer’s words, the investigation was “stopped in its tracks.” She will call the meetings “highly unusual.” In October 2007, CIA Director Michael Hayden will order an investigation of Helgerson’s office, alleging that Helgerson was on “a crusade against those who have participated in controversial detention programs.” [Public Record, 3/6/2009]

Entity Tags: Office of Medical Services (CIA), International Criminal Court, Jane Mayer, John Helgerson, David Ignatius, John Radsan, John Ashcroft, Convention Against Torture, Abu Zubaida, Bush administration (43), US Department of Justice, Richard (“Dick”) Cheney, Central Intelligence Agency, Michael Hayden, Abd al-Rahim al-Nashiri, Khalid Shaikh Mohammed, Michael Isikoff

Timeline Tags: Torture of US Captives, Complete 911 Timeline

A Pentagon report determines that conditions at the detention facilities at Guantanamo Bay, Cuba, and Charleston, South Carolina used to house “enemy combatants” are problematic at best. The facilities house three designated enemy combatants: Jose Padilla (see May 8, 2002), Yaser Esam Hamdi (see December 2001), and Ali Saleh Kahlah al-Marri (see December 12, 2001). The report, entitled “Brief to the Secretary of Defense on Treatment of Enemy Combatants Detained at Naval Station Guantanamo Bay, Cuba, and Naval Consolidated Brig Charleston,” is written by the Navy’s Vice Admiral A.T. Church III and by Marine Brigadier General D.D. Thiessen. The focus of the report is to “[e]nsure Department of Defense orders concerning proper treatment of enemy combatants.” The report documents extensive problems at both locations. It cites the following as some of the problems:
bullet “One detainee has Koran removed from cell as part of JFCOM [Joint Forces Command] interrogation plan. Muslim chaplain not available.”
bullet “One detainee in Charleston has mattress removed as part of JFCOM-approved interrogation plan.”
bullet “One detainee in each location currently not authorized ICRC [Red Cross] visits due to interrogation plans in progress.”
bullet “One detainee in Charleston has Koran, mattress, and pillow removed and is fed cold MREs as part of interrogation plan.” This citation has a footnote that reads, “After completion of current interrogation,” removal of the Koran as an incentive to answer questions “will no longer be used at Charleston.”
bullet “Limited number and unique status of detainees in Charleston precludes interaction with other detainees. Argument could be made that this constitutes isolation.”
bullet At the Charleston brig, “Christian chaplain used to provide socialization, but could be perceived as forced proselytization.”
Nonetheless, the report concludes, “No evidence of noncompliance with DoD orders at either facility.” The authors assume that “treatment provided for in presidential and SECDEF orders constitutes ‘humane treatment.’” [Progressive, 3/2007] When Church presents his report to journalists (see May 12, 2004), he says he only found eight “minor infractions.”

Entity Tags: US Department of Defense, Jose Padilla, D.D. Thiessen, Ali Saleh Kahlah al-Marri, Albert T. Church III, Yaser Esam Hamdi

Timeline Tags: Torture of US Captives

Rene Lerner, a deputy assistant attorney general in the Office of Legal Counsel (OLC), and Justice Department lawyer Adrien Silas send a memo to Assistant Attorney General William Moschella. The memo will remain classified, but the American Civil Liberties Union (ACLU) will learn that it pertains to the so-called “McCain Amendment,” later known as the Detainee Treatment Act (see December 15, 2005). President Bush will sign the bill into law, but will include a signing statement that states the administration will not follow the law because it impinges on the president’s constitutional authority to conduct military operations (see December 30, 2005). It is unclear whether Bush’s signing statement is influenced by the memo. [ProPublica, 4/16/2009]

Entity Tags: Detainee Treatment Act, Adrien Silas, American Civil Liberties Union, US Department of Justice, Rene Lerner, Office of Legal Counsel (DOJ), George W. Bush, William E. Moschella

Timeline Tags: Civil Liberties

Attorney General John Ashcroft again invokes the “state secrets” privilege (see March 9, 1953), forbidding former FBI translator Sibel Edmonds from testifying in a case brought by hundreds of families of September 11 victims (see October 18, 2002). [New York Times, 5/20/2004] Four weeks earlier, on April 26, the Justice Department had obtained a temporary court order preventing her from testifying before the court. [Independent, 4/2/2004; Government Executive, 4/30/2004] The families, represented by the law firm Motley-Rice, allege that a number of banks and two members of the Saudi royal family provided financial support to al-Qaeda. [New York Times, 5/20/2004] Ashcroft’s order retroactively classifies information it provided Senators Chuck Grassley and Patrick Leahy (see June 17, 2002) concerning former FBI translator Sibel Edmonds and her allegations. Among the documents to be “reclassified” are the follow-up letters sent by Grassley and Leahy to the FBI which they posted on their website. Their staff members are prohibited from discussing the information, even though it is now public knowledge. The order bars Edmonds from answering even simple questions like, “When and where were you born?” “What languages do you speak?” and “Where did you go to school?” [New York Times, 5/20/2004; Boston Globe, 7/5/2004; Asia Times, 8/6/2004; Vanity Fair, 9/2005] In response to the announcement, Grassley says: “I think it’s ludicrous, because I understand that almost all of this information is in the public domain and has been very widely available. This classification is very serious, because it seems like the FBI would be attempting to put a gag order on Congress.” [New Republic, 6/7/2004]

Entity Tags: US Department of Justice, Sibel Edmonds, Charles Grassley, Patrick J. Leahy

Timeline Tags: Complete 911 Timeline, Civil Liberties

Newsweek reveals the existence of the January 9, 2002 draft memo written by Justice Department lawyers John Yoo and Robert Delahunty (see January 9, 2002). [Newsweek, 5/21/2004]

Entity Tags: Robert J. Delahunty, John C. Yoo

Timeline Tags: Torture of US Captives, Civil Liberties

The Washington Post reveals the existence of a secret August 2002 memo from the Justice Department. This memo advised the White House that torturing al-Qaeda terrorists in captivity “may be justified,” and that international laws against torture “may be unconstitutional if applied to interrogations” conducted in the US war on terrorism (see August 1, 2002). The legal reasoning was later used in a March 2003 report by Pentagon lawyers assessing interrogation rules governing the military detention center at Guantanamo Bay (see March 6, 2003). Bush officials say that despite the memo, it has abided by the Geneva Conventions and other international treaties proscribing torture (see February 7, 2002). The incidents at Abu Ghraib, where numerous Iraqi prisoners were tortured, maimed, and sometimes murdered, were not policy, officials say. Human rights organizations and civil libertarians are appalled at the memo. “It is by leaps and bounds the worst thing I’ve seen since this whole Abu Ghraib scandal broke,” says Tom Malinowski of Human Rights Watch. “It appears that what they were contemplating was the commission of war crimes and looking for ways to avoid legal accountability. The effect is to throw out years of military doctrine and standards on interrogations.” A senior Pentagon official says that the Judge Advocate Generals (JAGs) were quick to challenge the Justice Department opinion when it was promoted by the Pentagon. “Every flag JAG lodged complaints,” the official says. A senior military attorney says of the memo: “It’s really unprecedented. For almost 30 years we’ve taught the Geneva Convention one way. Once you start telling people it’s okay to break the law, there’s no telling where they might stop.” [Washington Post, 6/8/2004] Attorney General John Ashcroft tells the Senate Judiciary Committee that he will not discuss the contents of the August 2002 memo, nor turn it over to the committee. “I believe it is essential to the operation of the executive branch that the president has the opportunity to get information from the attorney general that is confidential,” he says. [Washington Post, 6/8/2004]

Entity Tags: Senate Judiciary Committee, Bush administration (43), Geneva Conventions, John Ashcroft, Tom Malinowski, US Department of Justice, Judge Advocate General Corps, US Department of Defense

Timeline Tags: Torture of US Captives, Civil Liberties

During the annual G-8 economic summit, held in Sea Island, Georgia [2004 G8 Summit, 2004] , President Bush rejects the notion that he approved the use of torture. “The authorization I gave,” the president says, “was that all we did should be in accordance with American law and consistent with our international treaty obligations. That’s the message I gave our people.” He adds, “What I authorized was that we stay within the framework of American law.” And to emphasize his point, he says: “Listen, I’ll say it one more time.… The instructions that were given were to comply with the law. That should reassure you. We are a nation of laws. We follow the law. We have laws on our books. You could go look at those laws and that should reassure you.” [US President, 6/21/2004] During the summit, the foreign ministers of the participating countries are suddenly called to Washington to meet with Bush and Secretary of State Colin Powell. As Canadian Foreign Minister Bill Graham will later recall: “Colin suddenly phoned us all up and said, ‘We’re going to the White House this morning.’ Now, this is curious, because normally the heads of government don’t give a damn about foreign ministers. We all popped in a bus and went over and were cordially received by Colin and President Bush. The president sat down to explain that, you know, this terrible news had come out about Abu Ghraib and how disgusting it was. The thrust of his presentation was that this was a terrible aberration; it was un-American conduct. This was not American. [German Foreign Minister] Joschka Fischer was one of the people that said, ‘Mr. President, if the atmosphere at the top is such that it encourages or allows people to believe that they can behave this way, this is going to be a consequence.’ The president’s reaction was: ‘This is un-American. Americans don’t do this. People will realize Americans don’t do this.’ The problem for the United States, and indeed for the free world, is that because of this—Guantanamo, and the ‘torture memos’ from the White House (see November 6-10, 2001 and August 1, 2002), which we were unaware of at that time—people around the world don’t believe that anymore. They say, ‘No, Americans are capable of doing such things and have done them, all the while hypocritically criticizing the human-rights records of others.’” [Vanity Fair, 2/2009]

Entity Tags: Bill Graham, George W. Bush, Colin Powell, Joschka Fischer

Timeline Tags: Torture of US Captives, Civil Liberties

Jack Goldsmith, once considered a rising star in the Bush administration (see October 6, 2003), resigns under fire from his position as chief of the Justice Department’s Office of Legal Counsel (OLC). In his nine-month tenure, Goldsmith fought against the administration’s warrantless wiretapping program, its advocacy of torture, and its policy of extrajudicial detention and trial for terror suspects. Goldsmith will not discuss his objections to the administration’s policy initiatives until September 2007, when he will give interviews to a variety of media sources in anticipation of the publication of his book, The Terror Presidency. Goldsmith led a small, in-house revolt of administration lawyers against what they considered to be the constitutional excesses of the legal policies advocated by the administration in its war on terrorism. “I was disgusted with the whole process and fed up and exhausted,” he will recall. Goldsmith chooses to remain quiet about his resignation, and as a result, his silence will be widely misinterpreted by media, legal, and administration observers. Some even feel that Goldsmith should be investigated for his supposed role in drafting the torture memos (see January 9, 2002, August 1, 2002, and December 2003-June 2004) that he had actually opposed. “It was a nightmare,” Goldsmith will recall. “I didn’t say anything to defend myself, except that I didn’t do the things I was accused of.” [New York Times Magazine, 9/9/2007] Goldsmith will not leave until the end of July, and will take a position with the Harvard University Law School. Unlike many other Justice Department officials, he will not be offered a federal judgeship, having crossed swords with White House lawyers too many times. [Savage, 2007, pp. 191]

Entity Tags: US Department of Justice, Office of Legal Counsel (DOJ), Jack Goldsmith

Timeline Tags: Civil Liberties

Aides to President Bush, including Alberto Gonzales, publicly renounce the internal memo of August 1, 2002 (see August 1, 2002) that outlined a legal opinion by the Justice Department’s Office of Legal Counsel (OLC). They say it created the false impression that the US government was claiming the right to authorize interrogation techniques in violation of international law. Gonzales agrees that some of its conclusions were “controversial” and “subject to misinterpretation.” [Washington Post, 6/23/2004] The White House announces that all legal advice rendered by the OLC on interrogations will be reviewed and that sections of the August memo will be rewritten. Gonzales says the section in the memo arguing that the president, as Commander-in-Chief, is not bound by anti-torture laws is “unnecessary.” Justice Department officials also say the section will be scrapped. [Washington Post, 6/27/2004] In his introductory statement, however, Gonzales describes the circumstances under which the memo had come about: “We face an enemy that lies in the shadows, an enemy that doesn’t sign treaties, they don’t wear uniforms, an enemy that owes no allegiance to any country, they do not cherish life. An enemy that doesn’t fight, attack, or plan according to accepted laws of war, in particular Geneva Conventions.” [Washington File, 6/23/2004] Gonzales claims that giving these people a protected status under the Geneva Conventions would be tantamount to rewarding the terrorists’ lawlessness. “[T]o protect terrorists when they ignore the law is to give incentive to continued ignoring that law,” he says. [Washington File, 6/23/2004] Gonzales says he thinks that Bush never actually saw the August 2002 memo: “I don’t believe the president had access to any legal opinions from the Department of Justice.” [New York Times, 6/24/2004]

Entity Tags: George W. Bush, Alberto R. Gonzales

Timeline Tags: Torture of US Captives, Civil Liberties

Yaser Esam Hamdi.Yaser Esam Hamdi. [Source: Associated Press]In the case of Yaser Esam Hamdi v. Donald Rumsfeld, the Supreme Court rules 8-1 that, contrary to the government’s position, Hamdi (see December 2001), as a US citizen held inside the US, cannot be held indefinitely and incommunicado without an opportunity to challenge his detention. It rules he has the right to be given the opportunity to challenge the basis for his detention before an impartial court. Justice Sandra Day O’Connor writes for the majority: “It would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.” Hamdi, on the other hand, apart from military interrogations and “screening processes,” has received no process. Due process, according to a majority of the Court, “demands some system for a citizen detainee to refute his classification [as enemy combatant].” A “citizen-detainee… must receive notice of the factual basis for his classification, and a fair opportunity to rebut the government’s factual assertions before a neutral decision-maker.” However, O’Connor writes, “an interrogation by one’s captor… hardly constitutes a constitutionally adequate factfinding before a neutral decisionmaker.”
Conservative Dissent: President Has Inherent Power to Detain Citizens during War - Only Justice Clarence Thomas affirms the government’s opinion, writing, “This detention falls squarely within the federal government’s war powers, and we lack the expertise and capacity to second-guess that decision.” [Supreme Court opinion on writ of certiorari. Shafiq Rasul, et al. v. George W. Bush, et al., 6/28/2004] Thomas adds: “The Founders intended that the president have primary responsibility—along with the necessary power—to protect the national security and to conduct the nation’s foreign relations. They did so principally because the structural advantages of a unitary executive are essential in these domains.” [Dean, 2007, pp. 105]
'A State of War Is Not a Blank Check for the President' - The authority to hold Hamdi and other such US citizens captured on enemy battlefields derives from Congress’s Authorization to Use Military Force (AUMF—see September 14-18, 2001). Justice Antonin Scalia dissents from this portion of the majority ruling, saying that because Congress had not suspended habeas corpus, Hamdi should either be charged with a crime or released. The Court also finds that if Hamdi was indeed a missionary and not a terrorist, as both he and his father claim, then he must be freed. While the Court does not grant Hamdi the right to a full criminal trial, it grants him the right to a hearing before a “neutral decision-maker” to challenge his detention. O’Connor writes: “It is during our most challenging and uncertain moments that our nation’s commitment to due process is most severely tested; and it is in these times that we must preserve our commitment at home to the principles for which we fight abroad.… We have long 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.”
Affirms President's Right to Hold US Citizens Indefinitely - Although the media presents the ruling as an unmitigated defeat for the Bush administration, it is actually far more mixed. The White House is fairly pleased with the decision, insamuch as Hamdi still has no access to civilian courts; the administration decides that Hamdi’s “neutral decision-maker” will be a panel of military officers. Hamdi will not have a lawyer, nor will he have the right to see the evidence against him if it is classified. This is enough to satisfy the Court’s ruling, the White House decides. In 2007, author and reporter Charlie Savage will write: “[T]he administration’s legal team noted with quiet satisfaction that, so long as some kind of minimal hearing was involved, the Supreme Court had just signed off on giving presidents the wartime power to hold a US citizen without charges or a trial—forever.” The Justice Department says of the ruling that it is “pleased that the [Court] today upheld the authority of the president as commander in chief of the armed forces to detain enemy combatants, including US citizens.… This power, which was contested by lawyers representing individuals captured in the War on Terror, is one of the most essential authorities the US Constitution grants the president to defend America from our enemies.” [Savage, 2007, pp. 193-194]

Entity Tags: Sandra Day O’Connor, Antonin Scalia, Donald Rumsfeld, Yaser Esam Hamdi, Clarence Thomas, Charlie Savage

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

Wisconsin Right to Life logo.Wisconsin Right to Life logo. [Source: Dane101 (.com)]After the passage of the Bipartisan Campaign Reform Act of 2002 (BCRA—see March 27, 2002), also known as the McCain-Feingold law after its original sponsors, and the 2003 McConnell Supreme Court decision that upheld the law (see December 10, 2003), corporations and labor unions are prohibited from airing ads that attack candidates but avoid specific language that turns the ads from general commercials into “campaign” ads within 30 days of a primary election or 60 days of a federal election. Wisconsin Right to Life (WRTL) comes to anti-abortion and anti-campaign finance lawyer James Bopp Jr. (see November 1980 and After) with a dilemma. The WRTL wants to run ads attacking Senator Russ Feingold (D-WI), a powerful advocate of abortion rights, for his record of opposing President Bush’s judicial nominees. It intends to use the ads as campaign attack ads against Feingold, but skirt the BCRA’s restrictions by not specifically discouraging votes for him, thereby giving the appearance of “issue” ads and thusly not running afoul of the BCRA. Bopp is worried that the McConnell decision, just rendered, would make the Court reluctant to reverse itself so quickly. Bopp knows that the McConnell decision was in response to a broad challenge to the BCRA that argued the law was unconstitutional in all circumstances. Bopp decides to challenge the BCRA on behalf of the WRTL on narrower grounds—to argue that the specific application of the BCRA in this instance would violate the group’s First Amendment rights. He decides not to file a complaint with the Federal Election Commission (FEC) because of that agency’s notoriously slow response time, but instead files a preemptive challenge in court objecting to the BCRA’s ban on “issue advertisements” in the weeks before elections. Bopp is encouraged by the prospects of a court challenge that may wend its way to the Supreme Court, as the “swing” vote in McConnell was Justice Sandra Day O’Connor, who has been succeeded by the more conservative Samuel Alito (see October 31, 2005 - February 1, 2006). [New Yorker, 5/21/2012] Bopp will prove to be correct, as the Supreme Court will find in WRTL’s favor (see June 25, 2007).

Entity Tags: Russell D. Feingold, Federal Election Commission, Bipartisan Campaign Reform Act of 2002, George W. Bush, Samuel Alito, James Bopp, Jr, Wisconsin Right to Life, US Supreme Court, Sandra Day O’Connor

Timeline Tags: Civil Liberties, 2004 Elections

Navy General Counsel Alberto J. Mora writes a secret, but unclassified, memo to Vice Admiral Albert Church, who led a Pentagon investigation into abuses at the US detention facility at Guantanamo Bay. Mora writes the memo in an attempt to stop what he sees as a disastrous and unlawful policy of authorizing cruel and inhuman treatment of terror suspects. The memo details in chronological fashion Mora’s earlier attempts to speak out against the Bush administration’s decision to circumvent the Geneva Conventions (see January 9, 2002 and January 11, 2002).
Specific Problems - Mora, a veteran of the Reagan and George H. W. Bush administrations and a strong supporter of the “war on terror,” argues that a refusal to outlaw cruelty toward US-held terrorist suspects is an implicit invitation to abuse. Mora also writes that the Bush administration’s legal arguments that justify an expansion of executive power in everything from interrogations to warrantless wiretapping are “unlawful,” “dangerous,” and “erroneous” legal theories. Not only are they wrong in granting President Bush the right to authorize torture, he warns that they may leave US personnel open to criminal prosecution. While the administration has argued that it holds to humane, legal standards in interrogation practices (see January 12, 2006), Mora’s memo shows that from the outset of the administration’s “war on terror,” the White House, the Justice Department, and the Defense Department intentionally skirted and at times ignored domestic and international laws surrounding interrogation and detention of prisoners.
Cruelty and Torture - Mora will later recall the mood in the Pentagon: “The mentality was that we lost three thousand Americans [on 9/11], and we could lose a lot more unless something was done. It was believed that some of the Guantanamo detainees had knowledge of other 9/11-like operations that were under way, or would be executed in the future. The gloves had to come off. The US had to get tougher.” But, Mora will say, the authorization of cruel treatment of detainees is as pernicious as any defined torture techniques that have been used. “To my mind, there’s no moral or practical distinction,” he says. “If cruelty is no longer declared unlawful, but instead is applied as a matter of policy, it alters the fundamental relationship of man to government. It destroys the whole notion of individual rights. The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty. It applies to all human beings, not just in America—even those designated as ‘unlawful enemy combatants.’ If you make this exception, the whole Constitution crumbles. It’s a transformative issue.… The debate here isn’t only how to protect the country. It’s how to protect our values.” [Mora, 7/7/2004 pdf file; New Yorker, 2/27/2006]

Entity Tags: Geneva Conventions, Richard (“Dick”) Cheney, US Department of Defense, Alberto Mora, Albert T. Church III, US Department of Justice, Bush administration (43)

Timeline Tags: Torture of US Captives, Civil Liberties

Jack Goldsmith, the head of the Justice Department’s Office of Legal Counsel (OLC), sends a classified memo to Attorney General John Ashcroft. The contents of the memo remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo concerns the ramifications of a recent Supreme Court decision on gathering foreign intelligence. Presumably, Goldsmith is writing about the Hamdi decision, in which the Court ruled that enemy combatants and detainees have the right to due process in the US justice system (see June 28, 2004), but this is by no means certain. [American Civil Liberties Union [PDF], 1/28/2009 pdf file]

Entity Tags: Jack Goldsmith, American Civil Liberties Union, US Supreme Court, US Department of Justice, Office of Legal Counsel (DOJ), John Ashcroft

Timeline Tags: Civil Liberties

Jacob Hornberger.Jacob Hornberger. [Source: Institute for Historical Review]Jacob Hornberger, the president of the Future of Freedom Foundation, writes that the Pentagon has learned “when the judiciary issues an order, the Pentagon is required to obey it,” which is “why the government is now permitting Ali Saleh al-Marri to meet with his attorney as part of his habeas corpus proceeding in federal district court in South Carolina.” Al-Marri is one of three “enemy combatants” (see June 23, 2003) designated by President Bush. Until recently, the Pentagon had refused to allow al-Marri to contact his lawyers, who have been challenging his detention and enemy combatant status in the US courts, but a recent Supreme Court decision scotched that procedure (see June 28, 2004). Hornberger compares al-Marri’s treatment to that of ousted Iraqi dictator Saddam Hussein, whom Iraqi and US officials have restricted from consulting with his own lawyers in Iraq. Al-Marri, before being removed from the US judicial system, “would have been entitled to all the rights and guarantees recognized in the Constitution and Bill of Rights, including being informed of the charges against him, compulsory process of witnesses, cross-examination of adverse witnesses, assistance of counsel, and a jury trial,” Hornberger writes. “If the jury had acquitted him, as juries recently did with defendants in federal terrorism cases brought in Detroit and Boise, he would have walked away from the federal courtroom a free man. By removing al-Marri from the jurisdiction of the federal court on the eve of his trial and placing him into military custody as an ‘enemy combatant,’ the Justice Department and the Pentagon, working together, effectively hijacked our criminal justice system and sabotaged our constitutional order.” [Atlanta Inquirer, 8/21/2004; Future of Freedom Foundation, 2007]

Entity Tags: George W. Bush, Ali Saleh Kahlah al-Marri, US Department of Defense, Saddam Hussein, Jacob Hornberger

Timeline Tags: Torture of US Captives

The Supreme Court declines without comment to hear an appeal by “enemy combatant” Ali Saleh Kahlah al-Marri (see December 12, 2001 and June 23, 2003). Al-Marri has filed a civil suit, Al-Marri v. Rumsfeld, challenging his detention and his status as an enemy combatant. Previously, courts ruled that al-Marri’s lawyers should have filed the suit in South Carolina, where al-Marri is being held in a Charleston naval brig, not in Illinois, where al-Marri was attending college. The Supreme Court refused to overturn that decision. Al-Marri’s lawyers intend to refile the suit in South Carolina (see August 8, 2005). [Al-Marri v. Rumsfeld, 6/2004; Associated Press, 10/4/2004; Slate, 4/20/2006]

Entity Tags: US Supreme Court, Ali Saleh Kahlah al-Marri

Timeline Tags: Torture of US Captives, Civil Liberties

Accused terrorist Yaser Esam Hamdi returns to Saudi Arabia aboard a US military jet. Earlier in 2004, the US Supreme Court ruled that the US government could not continue to hold Hamdi, a US citizen, as an enemy combatant without allowing him to challenge that status (see June 28, 2004). The US government was still free to bring charges against him but instead chose to negotiate with his attorneys about a release. In exchange for his release, Hamdi agrees to renounce his US citizenship and pledge never to travel to Afghanistan, Iraq, Israel, Pakistan, Syria, the Palestinian West Bank, or Gaza. He must also report any intent to travel outside Saudi Arabia. [CNN, 10/14/2004]
'Shocking Admission' of Lack of Criminal Case against Hamdi - Andrew Cohen comments in the Los Angeles Times, “If Hamdi is such a minor threat today that he can go back to the Middle East without a trial or any other proceeding, it’s hard not to wonder whether the government has been crying wolf all these years.” He calls the release “a shocking admission from the government that there is not now, and probably never has been, a viable criminal case against Hamdi.” [Los Angeles Times, 8/16/2004]
Hamdi Case Used to Set Favorable Precedent? - Author and reporter Charlie Savage will agree with Cohen. “Hamdi’s release meant that a prisoner who the White House had once sworn was too dangerous to be allowed access to a lawyer was now going free—just like hundreds of prisoners from Guantanamo who were held without trial for years and then quietly released,” Savage will write. He will note that many administration critics believe Hamdi’s case had been used as a tool by the administration to get a favorable judicial precedent and, once that precedent had been put in place, the administration had no more use for Hamdi and threw him out of the country rather than actually continue with a problematic trial or legal proceeding. [Savage, 2007, pp. 199-200]

Entity Tags: Charlie Savage, Yaser Esam Hamdi, Andrew Cohen

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

Fawzi Khalid Abdullah Fahad al-Odah.Fawzi Khalid Abdullah Fahad al-Odah. [Source: Cageprisoners]US District Judge Colleen Kollar-Kotelly rules on a lawsuit filed by three Kuwaiti detainees at Guantanamo: Mohammed Ahmed al-Kandari, Khalid Abdullah Mishal al-Mutairi, and Fawzi Khalid Abdullah Fahad al-Odah. She rules that detainees should be permitted to communicate with their lawyers without the government listening in on their conversations. She says the government’s attempt to wire-tap detainee-attorney communications threatens to “erode [the] bedrock principle” of attorney-client privilege. She says the government is defending its position with “a flimsy assemblage” of arguments. “The government has supplied only the most slender legal support for its argument, which cannot withstand the weight of the authority surrounding the importance of the attorney-client privilege.” [Reuters, 10/20/2004] The three Kuwaitis, Judge Kollar states, “have been detained virtually incommunicado for nearly three years without being charged with any crime. To say that their ability to investigate the circumstances surrounding their capture and detention is ‘seriously impaired’ is an understatement.” [Associated Press, 10/21/2004] She does concede, however, that lawyers for the Guantanamo detainees are required to disclose to the government any information from their client involving future threats to national security. [Reuters, 10/20/2004]

Entity Tags: Fawzi Khalid Abdullah Fahad al-Odah, Mohammed Ahmed al-Kandari, Khalid Abdullah Mishal al-Mutairi, Colleen Kollar-Kotelly, James L. Pohl

Timeline Tags: Torture of US Captives, Civil Liberties

Salim Ahmed Hamdan.Salim Ahmed Hamdan. [Source: Public domain]US District Judge James Robertson rules that the Combatant Status Review Tribunal being held at the Guantanamo base in Cuba to determine the status of detainee Salim Ahmed Hamdan is unlawful and cannot continue. At the time of the decision, Hamdan is before the Guantanamo military commission. [Washington Post, 11/9/2004; USA Today, 11/9/2004] The commission system, as set up by White House lawyers David Addington and Timothy Flanigan three years before (see Late October 2001), gives accused terrorists such as Hamdan virtually no rights; in author and reporter Charlie Savage’s words, “the [Bush] administration had crafted rules that would make it easy for prosecutors to win cases.” [Savage, 2007, pp. 195-196]
Violation of Geneva Conventions - Robertson, in his 45-page opinion, says the government should have conducted special hearings to determine whether detainees qualified for prisoner-of-war protections under the Geneva Conventions at the time of capture. [USA Today, 11/9/2004] He says that the Bush administration violated the Geneva Conventions when it designated prisoners as enemy combatants, denied them POW protections, and sent them to Guantanamo. [Boston Globe, 11/9/2004] The Combatant Status Review Tribunals that are currently being held in response to a recent Supreme Court decision (see June 28, 2004) are inadequate, Robertson says, because their purpose is to determine whether detainees are enemy combatants, not POWs, as required by the Third Geneva Convention. [USA Today, 11/9/2004]
Rejects Claims of Presidential Power - Robertson also rejects the administration’s claim that the courts must defer to the president in a time of war. “The president is not a ‘tribunal,’” the judge says. [USA Today, 11/9/2004] Robertson, a Clinton appointee, thus squarely opposes both the president’s military order of November 13, 2001 (see November 13, 2001) establishing the possibility of trial by military tribunal, and his executive order of February 7, 2002 (see February 7, 2002) declaring that the Geneva Conventions do not to apply to Taliban and al-Qaeda prisoners. “The government has asserted a position starkly different from the positions and behavior of the United States in previous conflicts,” Robertson writes, “one that can only weaken the United States’ own ability to demand application of the Geneva Conventions to Americans captured during armed conflicts abroad.” [USA Today, 11/9/2004; Washington Post, 11/9/2004; Boston Globe, 11/9/2004]
Orders Military Courts-Martial - Robertson orders that until the government conducts a hearing for Hamdan before a competent tribunal in accordance with the Third Geneva Conventions, he can only be tried in courts-martial, according to the same long-established military rules that apply to trials for US soldiers. [Washington Post, 11/9/2004; Boston Globe, 11/9/2004] Robertson’s ruling is the first by a federal judge to assert that the commissions are illegal. [Washington Post, 11/9/2004]
Hearings Immediately Recessed - When word of Robertson’s ruling comes to Guantanamo, Colonel Peter Brownback, presiding over a pretrial hearing for Hamdan, immediately gavels the hearing closed, declaring an “indefinite recess” for the tribunal. [Savage, 2007, pp. 195-196]
Ruling Applauded by Civil Libertarians, Rejected by Bush Lawyers - Anthony Romero, director of the American Civil Liberties Union; Eugene Fidell, president of the National Institute of Military Justice; and Michael Ratner, president of the Center for Constitutional Rights, all applaud Robertson’s ruling. [Boston Globe, 11/9/2004] The Bush administration rejects the court’s ruling and announces its intention to submit a request to a higher court for an emergency stay and reversal of the decision. “We vigorously disagree.… The judge has put terrorism on the same legal footing as legitimate methods of waging war,” Justice Department spokesman Mark Corallo says. “The Constitution entrusts to the president the responsibility to safeguard the nation’s security. The Department of Justice will continue to defend the president’s ability and authority under the Constitution to fulfill that duty.” [Washington Post, 11/9/2004; Boston Globe, 11/9/2004] He also says that the commission rules were “carefully crafted to protect America from terrorists while affording those charged with violations of the laws of war with fair process.” [Boston Globe, 11/9/2004]
Ruling May Affect Other Detainees - Though the ruling technically only applies to Hamdan, his civilian attorney, Neal Katyal, says it could affect other detainees. “The judge’s order is designed only to deal with Mr. Hamdan’s case,” Katyal says. “But the spirit of it… extends more broadly to potentially everything that is going on here at Guantanamo.” [USA Today, 11/9/2004]

Entity Tags: Mark Corallo, Neal Katyal, James Robertson, George W. Bush, Anthony D. Romero, Peter Brownback, Charlie Savage, US Supreme Court, American Civil Liberties Union, Salim Ahmed Hamdan

Timeline Tags: Torture of US Captives, Civil Liberties

Referring to the recent appointment of former White House counsel Alberto Gonzales as US Attorney General (see November 10, 2004), retired chief judge of the Army Court of Appeals Brigadier General James Cullen says, “When you encounter a person who is willing to twist the law… even though for perhaps good reasons, you have to say you’re really undermining the law itself.” [Village Voice, 11/29/2004]

Entity Tags: James Cullen, Alberto R. Gonzales

Timeline Tags: Torture of US Captives, Civil Liberties

Congress passes an intelligence bill that requires the Justice Department to inform it as to how often and in what situation the FBI is using special “national security” wiretaps on US soil. The bill also requires the Justice Department to give oversight committees copies of administration memos outlining any new interpretations of domestic-spying laws. It contains 11 other sections mandating reports about such issues as civil liberties, security clearances, border security, and counternarcotics efforts. President Bush signs the bill, then issues a signing statement asserting his right to ignore or override every element of it. He can and will withhold information from Congress as he sees fit, he claims in the statement. [Savage, 2007, pp. 238-239]

Entity Tags: US Department of Justice, George W. Bush

Timeline Tags: Civil Liberties

Conservative columnist Ann Coulter, in her daily syndicated column, accuses Democrats and liberals of “racism” for criticizing African-American conservatives. Coulter’s column is partly in response to recent remarks by Senate Minority Leader Harry Reid (D-NV) that other conservatives have characterized as racist (see December 5-8, 2004). Coulter expands her criticism well beyond Reid, to accuse African-American columnist Bob Herbert of the New York Times of being a “black liberal” whose criticism of black conservatives is, in her view, racially motivated, and accuses white Times media critic Caryn James of “launching racist attacks on black conservatives” (Coulter mistakenly identifies James as African-American). Coulter begins by referring to comments by the recently deceased Washington Post columnist Mary McGrory, who called Supreme Court Justice Antonin Scalia “a brillant and compelling extremist” and Supreme Court Justice Clarence Thomas (see October 13, 1991) “Scalia’s puppet.” According to Coulter, McGrory’s statement “is the kind of rhetoric liberals are reduced to when they just can’t bring themselves to use the N-word.” Referring to Reid’s characterization of Thomas as the author of “poorly written” Court opinions, Coulter writes, “You’d think Thomas’ opinions were written in ebonics.” She concludes by calling Herbert and James “Uncle Toms.” The same evening, Coulter continues her attacks on Fox News, appearing as a guest on Bill O’Reilly’s broadcast. According to Coulter, liberals “feel like they have blacks on the plantation, they can say whatever they like. And, interestingly, you don’t even hear Hispanic conservatives attacked in the same way that people like Condoleezza Rice and Clarence Thomas are, and—and, I mean, just look at it. Look at what the Democrats’ minority leader in the Senate said this weekend. He praises Scalia as ‘Oh, he’s one smart guy, and his opinions, can’t dispute the logic, though I disagree with them,’ and then he says of Clarence Thomas ‘He’s an embarrassment. His opinions—they’re just poorly written.’” O’Reilly agrees, saying that Democrats who try to “demean people with whom [they] disagree with politically” are “loathsome.” Coulter says that Democrats are “enraged” about the 2004 elections, and in response “they’re lashing out at the blacks.” [Ann Coulter, 12/8/2009; Media Matters, 12/10/2009]

Entity Tags: Caryn James, Ann Coulter, Antonin Scalia, Bob Herbert, Fox News, Mary McGrory, Clarence Thomas, Bill O’Reilly, Harry Reid

Timeline Tags: Domestic Propaganda

Congress passes a law requiring the director of national intelligence (DNI) to recruit and train women and minorities to be spies, analysts, and translators in order to ensure diversity in the intelligence community. President Bush signs the bill, then issues a signing statement ordering the executive branch—including the DNI—to construe the law in a manner consistent with a constitutional clause guaranteeing “equal protection” for all: a legalistic phrasing designed to sidestep the law. Bush has long been an opponent of any sort of affirmative action program; as recently as 2003, the Supreme Court ruled against the Bush administration’s “equal protection” arguments and in favor of a race-conscious affirmative action program. In his signing statement, Bush advances the “equal protection” argument over affirmative action in spite of the Supreme Court’s rejection of that argument. [Boston Globe, 4/30/2006; Savage, 2007, pp. 240-241]

Entity Tags: Bush administration (43), Office of the Director of National Intelligence, US Supreme Court, George W. Bush

Timeline Tags: Civil Liberties

Congress passes a law forbidding US troops in Colombia, who are there advising the government in its struggle against Marxist rebels funded by drug money, from engaging in any combat against the rebels except in self-defense. The law also caps the number of American soldiers deployed in Colombia at 800. President Bush issues a signing statement that only he, as the commander in chief, can place restrictions on the use of US armed forces. Therefore, the executive branch will construe the law “as advisory in nature.” [Boston Globe, 4/30/2006]

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

Timeline Tags: US International Relations, Civil Liberties

The Justice Department issues a 17-page memo which officially replaces the August 2002 memo (see August 1, 2002), which asserted that the president’s wartime powers supersede international anti-torture treaties and defined torture very narrowly, describing it as a tactic that produces pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” The new memo, authored by acting chief of the Office of Legal Counsel (OLC) and Acting Assistant Attorney General Daniel Levin, is ostensibly meant to deflect criticisms that the Bush administration condones torture. In fact, the very first sentence reads, “Torture is abhorrent both to American law and values and to international norms.” But the White House insists that the new memo does not represent a change in policy because the administration has always respected international laws prohibiting the mistreatment of prisoners. The primary concern of the new memo is to broaden the narrow definition of torture that had been used in the August memo. Levin adopts the definition of torture used in Congressional anti-torture laws, which says that torture is the infliction of physical suffering, “even if it does not involve severe physical pain.” But the pain must still be more than “mild and transitory,” the memo says. Like the original memo, Levin says that torture may include mental suffering. But to be considered so it would not have to last for months or years, as OLC lawyers Jay Bybee and John Yoo had asserted two years earlier. The most contested conclusions of the August 2002 memo—concerning the president’s wartime powers and potential legal defense for US personnel charged with war crimes—are not addressed in the Levin memo. “Consideration of the bounds of any such authority would be inconsistent with the president’s unequivocal directive that United States personnel not engage in torture,” the memo says. [US Department of Justice, 12/30/2004 pdf file; Associated Press, 12/31/2004]
National Security Not a Justification for Torture - The memo also attempts to quell concerns that the administration believes national security may be used as justification for tactics that could be considered as torture. It states, “[A] defendant’s motive (to protect national security, for example) is not relevant to the question whether he has acted with the requisite specific intent under the statute.” [US Department of Justice, 12/30/2004 pdf file]
Memo Divided White House Officials - Many in the White House opposed the issuance of the memo, but were rebuffed when other administration officials said the memo was necessary to ease the confirmation of Alberto Gonzales as Attorney General. [New York Times, 10/4/2007]
Torture Opponents Disappointed - Civil libertarians and opponents of torture within the Justice Department are sharply disappointed in the memo. While it gives a marginally less restrictive definition of the pain required to qualify as torture, and gives no legal defenses to anyone who might be charged with war crimes, it takes no position on the president’s authority to override interrogation laws and treaties, and finds that all the practices previously employed by the CIA and military interrogators were and are legal. Yoo will later write that “the differences in the opinions were for appearances’ sake. In the real world of interrogation policy, nothing had changed. The new opinion just reread the statute to deliberately blur the interpretation of torture as a short-term political maneuver in response to public criticism.” [Savage, 2007, pp. 196-197]
Secret Memo Will Allow Waterboarding; Dissidents Purged - A secret memo is completed a short time later that allows such torture techniques as waterboarding to be used again (see February 2005). The Levin memo triggers a department-wide “purge” of dissidents and torture opponents; some will resign voluntarily, while others will resign after being denied expected promotions. [Savage, 2007, pp. 197]

Entity Tags: Office of Legal Counsel (DOJ), Bush administration (43), Daniel Levin, Alberto R. Gonzales, Jay S. Bybee, John C. Yoo

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

Public administration specialist Philip Cooper determines that during his first term, George W. Bush issued over 500 objections to Congressional legislation that he signed into law. Almost all of his objections were codified in presidential “signing statements,” which have no legal weight per se but have been used by Bush and previous presidents to cite objections or exceptions to legislative provisions. Although the administration’s point man on signing statements is David Addington, Vice President Cheney’s legal adviser and chief of staff, most of the legal objections for the statements are sourced from the Justice Department and the Office of Management and Budget. 82 of Bush’s signing statements are based on the “unitary executive” theory of presidential power (see January 9-13, 2006), 77 relate to the administration’s perception of the president’s exclusive power over foreign policy, 48 to his power to withhold information required by Congress to protect national security, and 37 to his powers as commander in chief. [Dean, 2007, pp. 112-116; Joyce Green, 2007]

Entity Tags: Philip Cooper, David S. Addington, Office of Management and Budget, Richard (“Dick”) Cheney, George W. Bush, US Department of Justice

Timeline Tags: Civil Liberties

Arlen Specter.Arlen Specter. [Source: US Senate]White House counsel Alberto Gonzales testifies before the US Senate as part of his confirmation as the Bush administration’s new attorney general. Much of the seven hours of testimony focuses on Gonzales’s position on torturing terrorist suspects. He is specifically questioned on the August 2002 Justice Department memo requested by Gonzales that outlined how US officials could interrogate subjects without violating domestic and international laws against torture by setting unusually high standards for the definition of torture (see August 1, 2002). [Democracy Now!, 1/7/2005] Arlen Specter (R-PA) asks Gonzales if he approves of torture. Gonzales replies, “Absolutely not,” but refuses to be pinned down on specifics of exactly what constitutes torture.
Equivocating on the Definition of Torture - Gonzales says he “was sickened and outraged” by the photographs of tortured Iraqis at Abu Ghraib prison (see Evening November 7, 2003), but refuses to say whether he believes any of that conduct is criminal, citing ongoing prosecutions. Joseph Biden (D-DE) retorts: “That’s malarkey. You are obliged to comment. That’s your judgment we’re looking at.… We’re looking for candor.” [CNN, 1/7/2005] When asked whether he agrees with the August 2002 memo that said, “[F]or an act to violate the torture statute, it must be equivalent in intensity to the pain accompanying serious physical injury such as organ failure, impairment of bodily function, or even death,” Gonzales says: “We were trying to interpret the standard set by Congress. There was discussion between the White House and Department of Justice as well as other agencies about what does this statute mean? It was a very, very difficult—I don’t recall today whether or not I was in agreement with all of the analysis, but I don’t have a disagreement with the conclusions then reached by the department.” He says that the standard “does not represent the position of the executive branch” today. Author and torture expert Mark Danner calls the standard “appalling… even worse the second time through.” Gonzales was obviously prepped for this line of questioning, Danner says: “He sat in front of the committee and asserted things, frankly, that we know not to be true.… He was essentially unwilling to say definitively there were no situations in which Americans could legally torture prisoners.… [T]here’s an assumption behind [this performance] that we have the votes. We’re going to get through. I just have to give them nothing on which to hang some sort of a contrary argument.”
Equivicating on Techniques - Edward Kennedy (D-MA) questions Gonzales about what techniques are defined as torture, including “live burial” (see February 4-5, 2004) and waterboarding. Kennedy says that, according to media reports, Gonzales never objected to these or other techniques. Gonzales does not have a “specific recollection” of the discussions or whether the CIA ever asked him to help define what is and is not torture. He also says that in “this new kind of” war against “this new kind of enemy, we realized there was a premium on receiving information” the US needs to defeat terrorists. Agencies such as the CIA requested guidance as to “[w]hat is lawful conduct” because they did not “want to do anything that violates the law.” Kennedy asks if Gonzales ever suggested that the Justice Department’s Office of Legal Counsel (OLC) ever “lean forward on this issue about supporting the extreme uses of torture?” Gonzales focuses on Kennedy’s phrasing: “Sir, I don’t recall ever using the term sort of ‘leaning forward,’ in terms of stretching what the law is.” He refuses to admit giving any opinions or requesting any documents, but only wanted “to understand [the OLC’s] views about the interpretation” of torture. Danner notes that Justice Department officials have told reporters that Gonzales pushed for the expansive definition of torture in the memos, but Gonzales refuses to admit to any of that in the questioning.
Ignoring the Uniform Code of Military Justice - Lindsey Graham (R-SC) tells Gonzales that the Justice Department memo was “entirely wrong in its focus” because it excluded the Uniform Code Of Military Justice, and that it “put our troops at jeopardy.” Gonzales replies that he does not think that because of the memo the US has lost “the moral high ground” in the world. Danner says, “[Graham] is arguing that these steps weakened the United States, not only by putting troops at risk, but by undermining the US’s reputation in the world, undermining the ideological side of this war… Graham is saying very directly that by torturing, and by supplying images like that one, of… a hooded man, the man with the hood over his head and the wires coming out of his fingers and his genitals which is known far and wide in the Arab world in the Middle East it’s become highly recognizable by supplying that sort of ammunition, you’re giving very, very strong comfort and aid to the enemy in fact.” [Democracy Now!, 1/7/2005]

Entity Tags: Clarence Thomas, Arlen Specter, Alberto R. Gonzales, Central Intelligence Agency, Uniform Code of Military Justice, US Department of Justice, Mark Danner, Patrick J. Leahy, Joseph Biden, Bush administration (43), Office of Legal Counsel (DOJ)

Timeline Tags: Torture of US Captives, Civil Liberties

The Senate Judiciary Committee brings in several experts to expand upon the testimony of attorney general nominee Alberto Gonzales (see January 6, 2005 and January 6, 2005). One of the most outspoken critics is Yale Law School dean Harold Koh. Koh had worked in the Justice Department’s Office of Legal Counsel (OLC) under Ronald Reagan, and later served as assistant secretary of state for democracy, human rights, and labor in the Clinton administration. He is a vocal critic of the Bush administration’s detention policies at Guantanamo and elsewhere. Koh had once worked closely with OLC lawyer John Yoo, the author of numerous torture memos (see October 4, 2001, November 6-10, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24-26, 2002, March 13, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and March 14, 2003) and opinions expanding the power of the president (see September 21, 2001, September 25, 2001, September 25, 2001, October 23, 2001, October 23, 2001, and June 27, 2002), but now, without explicitly mentioning Yoo by name, he repudiates his former student’s legal positions. Gonzales worked closely with Yoo to craft the administration’s positions on wiretapping, torture, the inherent power of the president, and other issues. “Having worked in both Democratic and Republican administrations, and for more than two years as an attorney in the Office of Legal Counsel, I am familiar with how legal opinions like this are sought and drafted,” Koh states. “I further sympathize with the tremendous pressures of time and crisis that government lawyers face while drafting such opinions. Nevertheless, in my professional opinion, the August 1, 2002 OLC memorandum [drafted by Yoo at Gonzales’s behest—see August 1, 2002] is perhaps the most clearly erroneous legal opinion I have ever read.” The August 1 memo, as well as other opinions by Yoo and Gonzales, “grossly overreads the inherent power of the president” as commander in chief, Koh testifies. The memos raise profound questions about the legal ethics of everyone involved—Gonzales, Yoo, and others in the Justice Department and White House. “If a client asks a lawyer how to break the law and escape liability, the lawyer’s ethical duty is to say no,” Koh testifies. “A lawyer has no obligation to aid, support, or justify the commission of an illegal act.” [Senate Judiciary Committee, 1/7/2005 pdf file; Savage, 2007, pp. 211-212]

Entity Tags: Senate Judiciary Committee, US Department of Justice, Harold Koh, Alberto R. Gonzales, Bush administration (43), John C. Yoo, Office of Legal Counsel (DOJ)

Timeline Tags: Civil Liberties

Attorney general nominee Alberto Gonzales turns in supplementary written answers to expand upon and clarify his testimony before the Senate Judiciary Committee (see January 6, 2005 and January 6, 2005). Buried in the documents is what reporter Charlie Savage will call “an explosive new disclosure.” Gonzales reveals that the Bush administration had secretly decided that the Convention against Torture, an international treaty, only has force on domestic soil, where the US Constitution applies. Noncitizens held overseas have no rights under the treaty, Bush lawyers concluded. Legal scholars from all sides of the political continuum denounce the administration’s position. Judge Abraham Sofaer, who negotiated the treaty for the Reagan administration, will write a letter to Congress informing it that President Reagan had never intended the treaty’s prohibition on torture and brutal treatment to apply only on US soil. However, the Bush administration stands by its position. [Savage, 2007, pp. 213]

Entity Tags: Senate Judiciary Committee, Abraham Sofaer, Alberto R. Gonzales, Bush administration (43), Charlie Savage

Timeline Tags: Civil Liberties

The American Civil Liberty Union (ACLU) calls for the creation of a Special Counsel “to investigate and prosecute any criminal acts by civilians in the torture or abuse of detainees by the US Government” and appeals to senators to insist that Alberto Gonzales commit to appointing one, before voting on his nomination as attorney general. “[I]t is likely,” the ACLU concludes, that between the production of the August 1, 2002 OLC memo (see August 1, 2002) and its official replacement by another legal opinion on December 30, 2004 (see December 30, 2004), “criminal acts occurred under the looser interpretations in effect for more than two years.” According to the ACLU, “The appointment of an outside special counsel—with full investigatory and prosecutorial powers—is the only way to ensure that all civilians who violated federal laws against torture will be held responsible.” [American Civil Liberties Union, 1/30/2005]

Entity Tags: Alberto R. Gonzales, American Civil Liberties Union

Timeline Tags: Torture of US Captives, Civil Liberties

The Justice Department issues a secret opinion that countermands and contradicts the administration’s official policy that torture is “abhorrent” and will not be practiced by US military or law enforcement officials (see December 30, 2004). The secret opinion is, the New York Times writes two years later while publicly revealing its existence, “an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.” The opinion gives explicit authorization to abuse detainees with a combination of physical and psychological abuse, including head-slapping, stress positioning, simulated drowning (“waterboarding”), and prolonged exposure to intense cold. New attorney general Alberto Gonzales (see November 10, 2004) approves the memo over the objections of deputy attorney general James Comey, himself preparing to leave the Justice Department after a series of battles over the legality of torture and the domestic surveillance program (see March 10-12, 2004). Comey says at the time that everyone at the department will be “ashamed” of the new opinion once the world learns of it. [New York Times, 10/4/2007]

Entity Tags: US Department of Justice, Alberto R. Gonzales, Central Intelligence Agency, New York Times

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

Former White House counsel Alberto Gonzales is confirmed as attorney general by the Senate on a generally party-line vote of 60-36, one of the smallest margins of confirmation in Senate history. Gonzales’s confirmation hearings (see January 6, 2005 and January 6, 2005) have been the source of great controversy, with Senate Democrats accusing him of being deliberately evasive, obfuscutory (see January 17, 2005), and even obtuse during questioning, but with a solid Republican majority, Democrats have little ability to do anything to interfere with Gonzales’s ascension to power. [Savage, 2007, pp. 213] Senator Christopher Dodd (D-CT) explains his opposition to Gonzales: “What is at stake here is whether he has demonstrated to the Senate of the United States that he will discharge the duties of the office to which he’s been nominated, specifically whether he will enforce the Constitution and the laws of the United States and uphold the values upon which those laws are based. Regrettably, and disturbingly in my view, Alberto Gonzales has fallen short of meeting this most basic and fundamental standard.” Dodd adds that Gonzales “has endorsed, unfortunately, the position that torture can be permissible.” Fellow Senator Richard Durbin (D-IL) adds: “At the very least Mr. Gonzales helped to create a permissive environment that made it more likely that abuses would take place. You could connect the dots from the administration’s legal memos to the Defense Department’s approval of abusive interrogation techniques for Guantanamo Bay to Iraq and Abu Ghraib.” Republicans are incredulous that Democrats would oppose Gonzales’s candidacy, and imply that their opposition is racially based. “Is it prejudice?” asks Senator Orrin Hatch (R-UT). “Is it a belief that a Hispanic-American should never be in a position like this because he will be the first one ever in a position like this? Or is it because he’s constantly mentioned for the Supreme Court of the United States of America? Or is it that they just don’t like Judge Gonzales?” Senator Mel Martinez (R-FL) says: “This is a breakthrough of incredible magnitude for Hispanic-Americans and should not be diluted by partisan politics. Judge Gonzales is a role model for the next generation of Hispanic-Americans in this country.” [Fox News, 2/4/2005] When Gonzales is sworn in on February 14, President Bush will use the occasion to urge Congress to renew the controversial USA Patriot Act (see February 14, 2005). [Deseret News, 2/15/2005]

Entity Tags: Richard (“Dick”) Durbin, Mel Martinez, Alberto R. Gonzales, Orrin Hatch, Bush administration (43), George W. Bush, Christopher Dodd, US Department of Justice

Timeline Tags: Civil Liberties

Zacarias Moussaoui wants captured al-Qaeda leaders Khalid Shaikh Mohammed and Ramzi bin al-Shibh to testify in his trial. However, an appeals court in April 2004 had only allowed indirect access to those prisoners, and further appeals court decisions in September and October 2004 had reaffirmed that ruling. On this date, the US Supreme Court, without comment, refuses to hear a further appeal. This was expected because the Supreme Court typically doesn’t hear such appeals until after the case goes to trial. [Washington Post, 9/14/2004; Washington Post, 10/14/2004; Washington Post, 3/22/2005] Moussaoui’s guilty plea one month later (see April 22, 2005) may lead to a new round of appeals. Presiding judge Leonie Brinkema has indicated she believes witness access is “highly relevant to the sentencing phase,” which will begin next, and could constitute “mitigating evidence” that could make the difference between Moussaoui receiving the death penalty or not. [Washington Post, 4/23/2005]

Entity Tags: Zacarias Moussaoui, Khalid Shaikh Mohammed, US Supreme Court, Ramzi bin al-Shibh, Leonie Brinkema

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

The DC federal appeals court rules in favor of the attorney general’s use of the state secrets privilege (see March 9, 1953, October 18, 2002 and May 19, 2004) to prevent the court from hearing Sibel Edmonds’ lawsuit (see June 2002). Lawyers for the Justice Department had addressed the judge behind sealed doors. [Vanity Fair, 9/2005]

Entity Tags: Sibel Edmonds, US Department of Justice

Timeline Tags: Complete 911 Timeline

Jay Rockefeller.Jay Rockefeller. [Source: US Senate]Ranking member of the Senate Intelligence Committee Jay Rockefeller (D-WV) requests “over a hundred documents” from the CIA’s Inspector General. The documents are referenced in or pertain to a report the Inspector General drafted in May 2004 about the CIA’s detention and interrogation activities. Rockefeller also requests a report drafted by the CIA’s Office of General Counsel (see 2003) on the examination of videotapes of detainee interrogations stating whether the techniques they show comply with an August 2002 Justice Department opinion on interrogation (see August 1, 2002). However, the CIA refuses to provide these documents, as well as others, even after a second request is sent to CIA Director Porter Goss in September 2005. [US Congress, 12/7/2007] The videotapes Rockefeller is asking about will be destroyed by the CIA just two months after his second request (see November 2005).

Entity Tags: Senate Intelligence Committee, John D. Rockefeller, Office of the Inspector General (CIA), Central Intelligence Agency, Porter J. Goss

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

Steven Bradbury, the head of the Justice Department’s Office of Legal Counsel, issues a classified memo to John Rizzo, the senior deputy counsel for the CIA. The memo will remain classified for nearly four years (see April 16, 2009). It addresses, in the words of the American Civil Liberties Union (ACLU), “whether CIA interrogation methods violate the cruel, inhuman, and degrading treatment standards under federal and international law.” Bradbury concludes that neither past nor present CIA interrogation methods violate such standards. [Office of Legal Counsel, 5/10/2005 pdf file; American Civil Liberties Union [PDF], 1/28/2009 pdf file]
CIA Techniques Not Torture, Bradbury Explains - Bradbury calls torture “abhorrent” and “universally repudiated,” and says the US will never condone it. Afterwards, he spends a great deal of effort explaining why the various techniques used by the CIA do not constitute torture. Bradbury goes into numerous details about varieties of “harsh interrogation techniques” that can be used on prisoners, often restating details from an August 2002 OLC memo (see August 1, 2002) and elaborating on those descriptions. One technique he details is forced nudity. “Detainees subject to sleep deprivation who are also subject to nudity as a separate interrogation technique will at times be nude and wearing a diaper,” he writes, and notes that the diaper is “for sanitary and health purposes of the detainee; it is not used for the purpose of humiliating the detainee and it is not considered to be an interrogation technique.… The detainee’s skin condition is monitored, and diapers are changed as needed so that the detainee does not remain in a soiled diaper.” He cites “walling,” a technique involving slamming a detainee into a “false wall,” and writes, “Depending on the extent of the detainee’s lack of cooperation, he may be walled one time during an interrogation session (one impact with the wall) or many times (perhaps 20 or 30 times) consecutively.” Other techniques Bradbury cites include waterboarding, “abdominal slaps,” and “water dousing.” For water dousing, Bradbury gives specific restrictions: “For example, in employing this technique:
bullet “For water temperarure of 41°F, total duration of exposure may not exceed 20 minutes without drying and rewarming.
bullet “For water temperarure of 50°F, total duration of exposure may not exceed 40 minutes without drying and rewarming.
bullet “For water tempetarure of 59°F, total duration of exposure may not exceed 60 minutes without drying and rewarming.
“The minimum permissible temperature of the water used in water dousing is 41°F, though you have informed us that in practice the water temperature is generally not below 50°F, since tap water rather than refrigerated water is generally used.” [Office of Legal Counsel, 5/10/2005 pdf file; CNN, 4/17/2009]
Waterboarding Used More Frequently than Authorized - Bradbury also notes that waterboarding is sometimes used more times than authorized or indicated. Referring to an as-yet-unreleased 2004 report by the CIA’s inspector general on torture and abuse of detainees, he writes: “The IG report noted that in some cases the waterboard was used with far greater frequency than initially indicated.… (‘[T]he waterboard technique… was different from the technique described in the DoJ [Department of Justice] opinion and used in the SERE training (see December 2001 and July 2002). The difference was the manner in which the detainee’s breathing was obstructed. At the SERE school and in the DoJ opinion, the subject’s airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the [CIA] interrogator… applied large volumes of water to a cloth that covered the detainee’s mouth and nose. One of the psychologists/interrogators acknowledged that the agency’s use of the technique is different from that used in SERE training because it is ‘for real—and is more poignant and convincing.’)… The inspector general further reported that ‘OMS [the CIA’s Office of Medical Services] contends that the expertise of the SERE waterboard experience is so different from the subsequent agency usage as to make it almost irrelevant. Consequently, according to OMS, there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe.‘… We have carefully considered the IG report and discussed it with OMS personnel. As noted, OMS input has resulted in a number of changes in the application of the waterboard, including limits on frequency and cumulative use of the technique. Moreover, OMS personnel are carefully instructed in monitoring this technique and are personally present whenever it is used.… Indeed, although physician assistants can be present when other enhanced techniques are applied, ‘use of the waterboard requires the presence of the physician.’” [Office of Legal Counsel, 5/10/2005 pdf file]

Entity Tags: US Department of Justice, Steven Bradbury, Central Intelligence Agency, Office of Legal Counsel (DOJ), American Civil Liberties Union

Timeline Tags: Civil Liberties

Steven Bradbury, the acting head of the Justice Department’s Office of Legal Counsel, issues a classified memo. The contents and the recipient remain secret, but the American Civil Liberties Union (ACLU) will later determine the memo deals with the use of “enhanced interrogation techniques” by the CIA. In early May, Bradbury determined that none of the CIA’s past or present interrogation methods violated either federal or international standards (see May 10, 2005). [American Civil Liberties Union [PDF], 1/28/2009 pdf file]

Entity Tags: Office of Legal Counsel (DOJ), American Civil Liberties Union, US Department of Justice, Steven Bradbury

Timeline Tags: Civil Liberties

Defense Secretary Donald Rumsfeld gathers a group of senior subordinates and warns them to stay away from three senators—John McCain (R-AZ), John Warner (R-VA), and Lindsey Graham (R-SC)—who are drafting a bill to govern the handling of terrorism suspects (see December 30, 2005). A Pentagon official with direct knowledge of the meeting will later recall, “Rumsfeld made clear, emphatically, that the vice president had the lead on this issue.” Though Vice President Dick Cheney has, as he so often has done in the past, ensured that his bureaucratic fingerprints are not on the issue, he has already staked out a hardline position for the White House. This time, it came as a last-minute insert in a July 2005 “statement of administration policy” by the Office of Management and Budget (OMB), where Nancy Dorn, Cheney’s former chief of legislative affairs, is deputy director. Cheney’s staff adds, without the required staff clearance, a paragraph to the OMB’s guidance for the 2006 defense appropriations bill (see July 21, 2005). Among those surprised by the position is Deputy Defense Secretary Gordon England, who for a year has advocated that the US issue clear rules about detention and interrogation of terror suspects. England attempts to clarify the issue (see Late 2005). [Washington Post, 6/25/2007]

Entity Tags: John McCain, Bush administration (43), Donald Rumsfeld, Gordon England, Office of Management and Budget, Richard (“Dick”) Cheney, John W. Warner, Nancy Dorn, Lindsey Graham, US Department of Defense

Timeline Tags: Civil Liberties

In a Columbus, Ohio, speech praising the USA Patriot Act (see October 26, 2001), President Bush claims that when US government agencies wiretap anyone’s phones or email communications, they do so with a court order. Bush says: “Before the Patriot Act, agents could use wiretaps to investigate a person committing mail fraud, but not to investigate a foreign terrorist. The Patriot Act corrected all these pointless double standards—and America is safer as a result. One tool that has been especially important to law enforcement is called a roving wiretap. Roving wiretaps allow investigators to follow suspects who frequently change their means of communications. These wiretaps must be approved by a judge, and they have been used for years to catch drug dealers and other criminals. Yet, before the Patriot Act, agents investigating terrorists had to get a separate authorization for each phone they wanted to tap. That means terrorists could elude law enforcement by simply purchasing a new cell phone. The Patriot Act fixed the problem by allowing terrorism investigators to use the same wiretaps that were already being using against drug kingpins and mob bosses. The theory here is straightforward: If we have good tools to fight street crime and fraud, law enforcement should have the same tools to fight terrorism.” [White House, 6/9/2005] Bush made almost identical claims a year ago (see April 19-20, 2004). The same day as Bush makes his speech, the White House issues a fact sheet making the same claims (see June 9, 2005). 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, George W. Bush, National Security Agency, USA Patriot Act

Timeline Tags: Civil Liberties

Steven Bradbury.Steven Bradbury. [Source: Mark Wilson / Getty Images]Steven Bradbury is nominated by President Bush to head the Justice Department’s Office of Legal Counsel (OLC). He will continue in that position on an acting basis into 2008, even though Congressional Democrats refuse to confirm him for the job, and even though his continuation in the post violates the Vacancies Reform Act, which precludes non-confirmed appointees for holding their positions for over 210 days (see October 16, 2007). [Washington Times, 9/20/2007; New York Times, 10/4/2007; TPM Muckraker, 10/19/2007] Bradbury takes over from Jack Goldsmith, who resigned the position under fire (see June 17, 2004).
Arm of the White House - Bradbury has a long history of supporting the White House’s agenda of expansive executive power. He came to the Justice Department after clerking with Supreme Court Justice Clarence Thomas and mentoring under former Whitewater special counsel Kenneth Starr. [New York Times, 10/4/2007] A co-founder of the Federalist Society [International Herald Tribune, 10/15/2007] , he is as staunchly conservative as any Bush appointee, but unlike some of the more outspoken of his colleagues, he comes across as low-key, pragmatic, and non-confrontational. As a Justice Department lawyer, Bradbury proved himself in line with the neoconservative views of Vice President Dick Cheney and Cheney’s chief of staff, David Addington. Former State Department senior official Philip Zelikow recalls Bradbury as being “fundamentally sympathetic to what the White House and the CIA wanted to do.” Bradbury was brought in to the OLC in part to rein in that office, which under its previous head Jack Goldsmith became the hub of the internal opposition to Bush’s policies of “enhanced interrogation” and domestic surveillance (see Late 2003-2005). In 2005, Bradbury signs two secret Justice Department memos giving broad authorization and legal justification for the CIA’s torture of terrorist suspects (see February 2005 and Late 2005),. Bradbury works closely with then-White House counsel and current attorney general Alberto Gonzales to bring the Justice Department back into line with White House demands. Conservative legal scholar Douglas Kmiec, who headed the OLC under former presidents Reagan and George H. W. Bush, says he believes the intense pressures from the current administration’s campaign against terrorism has warped the OLC’s proper role. “The office was designed to insulate against any need to be an advocate,” Kmiec says. Now the OLC has “lost its ability to say no.… The approach changed dramatically with opinions on the war on terror. The office became an advocate for the president’s policies.”
Probation - Bradbury was first considered for the job after Gonzales, newly confirmed as attorney general, rejected the idea of promoting Daniel Levin, the acting head of the OLC after Goldsmith’s departure. Gonzales considered Levin unsuitable for the job because of his independence and support for Goldsmith’s dissents. Instead, Gonzales chose Bradbury for the job. But the White House was uncertain of Bradbury’s reliability, and so placed him on a sort of “internal trial,” monitored by Gonzales’s replacement at the White House, Harriet Miers. Miers judged Bradbury’s loyalty to the president and his willingness to work with Gonzales in justifying White House policy decisions. Bradbury reportedly understands that his “probation” is intended for him to show just how compliant and supportive he is of the White House, and he soon wins the confidence of the White House by completely aligning himself with Addington. [New York Times, 10/4/2007]
'Sordid criminal conspiracy' - Harper’s Magazine commentator and lawyer Scott Horton will write in November 2007 that it is obvious “Bradbury was picked for one reason: to provide continuing OLC cover for the torture conspirators.… The Justice Department’s strategy has been to cloak Bradbury’s torture memoranda in secrecy classifications and then to lie aggressively about their very existence.… This episode demonstrates once more the intimate interrelationship between the policies of torture, secrecy, and the right to lie to the public and the courts in the interests of shielding the Bush administration from public embarrassment. And once more the Justice Department is enlisted not in the enforcement of the law, but rather in a sordid criminal conspiracy.” [Harper's, 11/7/2007]

Entity Tags: Kenneth Starr, Richard (“Dick”) Cheney, National Security Agency, Philip Zelikow, US Department of Justice, Steven Bradbury, Scott Horton, Vacancies Reform Act, James B. Comey Jr., Jack Goldsmith, Office of Legal Counsel (DOJ), Harper’s Magazine, Clarence Thomas, Central Intelligence Agency, Bush administration (43), Daniel Levin, Alberto R. Gonzales, Harriet E. Miers, Geneva Conventions, Douglas Kmiec, David S. Addington, George Herbert Walker Bush

Timeline Tags: Civil Liberties

Months after the Bush administration successfully convinced the New York Times to hold off publishing its report on the administration’s warrantless wiretapping program (see Early November 2004, December 6, 2005, and December 15, 2005), one of the reporters on the story, Eric Lichtblau, attempts to get a response on the program from one of the few Democrats briefed on it, House Intelligence Committee ranking member Jane Harman (D-CA). In his 2008 book Bush’s Law: The Remaking of American Justice, Lichtblau will write about covering a House hearing where Harman launches into a passionate call for stronger civil liberties safeguards in the reauthorization of the USA Patriot Act (see March 9, 2006). According to his recollection, Lichtblau approaches Harman and says, “I’m trying to square what I heard in there with what we know about that program.” He will write: “Harman’s golden California tan turned a brighter shade of red. She knew exactly what I was talking about. Shooing away her aides, she grabbed me by the arm and drew me a few feet away to a more remote section of the Capitol corridor. ‘You should not be talking about that here,’ she scolded me in a whisper. ’ They don’t even know about that,’ she said, gesturing to her aides, who were now looking on at the conversation with obvious befuddlement.” Harman tells Lichtblau, “The Times did the right thing by not publishing that story,” but will not discuss the details. When asked what intelligence capabilities would be lost by informing the public about something the terrorists already knew—that the government was listening to them—she simply replies, “This is a valuable program, and it would be compromised.” Lichtblau will add: “This was clearly as far as she was willing to take the conversation, and we didn’t speak again until months later, after the NSA story had already run. By then, Harman’s position had undergone a dramatic transformation. When the story broke publicly, she was among the first in line on Capitol Hill to denounce the administration’s handling of the wiretapping program, declaring that what the NSA was doing could have been done under the existing FISA law.” [TPM Muckraker, 3/19/2008]

Entity Tags: Eric Lichtblau, Bush administration (43), New York Times, House Intelligence Committee, Jane Harman

Timeline Tags: Civil Liberties

John Yoo, a law professor at UC Berkeley who worked in the Justice Department and provided legal justification for some of Bush’s policies after 9/11 ( see September 25, 2001), suggests some provocative ideas in a Los Angeles Times editorial. He argues the US should go on the offensive against al-Qaeda, having “our intelligence agencies create a false terrorist organization. It could have its own websites, recruitment centers, training camps, and fundraising operations. It could launch fake terrorist operations and claim credit for real terrorist strikes, helping to sow confusion within al-Qaeda’s ranks, causing operatives to doubt others’ identities and to question the validity of communications.” [Los Angeles Times, 7/13/2005]

Entity Tags: John C. Yoo

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

The Office of Management and Budget (OMB) releases a “Statement of Administrative Policy” regarding the 2006 National Defense Authorization Act, the massive appropriations bill for the year. The document is given little attention in the media, but it wields great influence inside the government. Unknown to most OMB staffers, Vice President Dick Cheney’s lawyer David Addington has gone through OMB deputy director Nancy Dorn—herself a former Cheney staffer—to add a key paragraph to the document at the very last minute, without staff review. The paragraph says, in part, “The administration strongly opposes” any amendment to “regulate the detention, treatment, or trial of terrorists captured in the war on terror.” Addington’s paragraph is a pre-emptive strike at any such legislative attempt to modify or ease the polices towards detainees, especially in a following statement that reads, “[T]he president’s senior advisers would recommend that he veto” any such bill. The insertion is part of Cheney’s attempt to head off any possible legislation restricting the administration’s claimed power to hold anyone it chooses in indefinite detention (see Summer 2005). [Office of Management and Budget, 7/21/2005 pdf file; Washington Post, 6/25/2007]

Entity Tags: Nancy Dorn, Office of Management and Budget, Richard (“Dick”) Cheney, David S. Addington

Timeline Tags: Civil Liberties

Senator John McCain (R-AZ) introduces an amendment to the annual legislation to fund the Defense Department. McCain’s amendment, co-sponsored by Senate Armed Services Committee chairman John Warner (R-VA) and Senator Lindsey Graham (R-SC), a former military lawyer, states that military interrogators cannot exceed the limits on detainee treatment set forth in the US Army Field Manual. In essence, the amendment would prohibit the use of harsh interrogation techniques that many, including McCain, feel constitute torture. The Field Manual limits were specifically written to comply with the Geneva Conventions. The amendment also prohibits US officials, including CIA agents, from inflicting not just torture but any form of “cruel, inhuman, and degrading treatment” on anyone in their custody, no matter where in the world the prisoner is being kept. The amendment, later known as the McCain Amendment or the McCain Torture Ban, becomes the subject of fierce, largely private negotiations between McCain and the White House. Vice President Cheney quickly lobbies friendly Republicans in Congress to oppose the amendment, and has private meetings with Warner and McCain. At Cheney’s behest, Senate Majority Leader Bill Frist (R-TN) withdraws the entire bill from consideration rather than allow it to pass with the McCain amendment attached. [Savage, 2007, pp. 220-221]

Entity Tags: Geneva Conventions, Bill Frist, Central Intelligence Agency, Detainee Treatment Act, Richard (“Dick”) Cheney, John McCain, US Department of Defense, Lindsey Graham, John W. Warner

Timeline Tags: Civil Liberties

The Connecticut Four, from left to right: Janet Nocek, Peter Chase, George Christian, and Barbara Bailey.The Connecticut Four, from left to right: Janet Nocek, Peter Chase, George Christian, and Barbara Bailey. [Source: Robert Deutsch/ USA Today]A case filed against Attorney General Alberto Gonzales by four plaintiffs from Connecticut’s Library Connection, Inc.—George Christian, Barbara Bailey, Peter Chase, and Janet Nocek—goes to trial in federal district court (see July 13, 2005). The trial is filed as Doe v. Gonzales because the government has filed a gag order against the plaintiffs forbidding them from identifying themselves or discussing the case publicly. The case involves a demand for information from the FBI for information concerning library usage by patrons of a Connecticut library; the four plaintiffs, on behalf of their data management firm Library Connection, have refused. The case revolves around the use of a National Security Letter (NSL) by the FBI; the plaintiffs, with support from the American Civil Liberties Union, want the NSL voided, the gag order lifted, and such use of NSLs found unconstitutional. Christian and his three colleagues are not allowed to attend the hearings in person because of the possibility that they might be identified as the plaintiffs; they are forced to watch the proceedings on a closed-circuit broadcast from a locked room in the Hartford courthouse. When the judge in the proceeding asks to review the government’s evidence for keeping the gag rule in place, Justice Department lawyers insist on submitting secret evidence directly to the judge, without providing that evidence to the plaintiff’s lawyers. The judge is not pleased, and rules, as did her predecessor in New York, that a perpetual gag order amounts to prior restraint, and thereby is unconstitutional. She adds that her review of the secret evidence gives no national security rationale for keeping the plaintiffs gagged. The Justice Department immediately appeals the ruling, and the plaintiffs stay silent and gagged. While the four plaintiffs remain silent about the NSL and the court case, the Justice Department’s primary lawyer, Kevin O’Conner, does not: O’Conner has frequently debated one of the plaintiffs, Chase, about the Patriot Act, and though Chase is now required to remain silent, O’Conner continues to make frequent public appearances touting the Patriot Act. Christian later says, in 2007 testimony before the Senate Judiciary Committee (see April 11, 2007), that the continuing gag order causes the four “John Does” considerable professional and personal distress, especially after the national media begins reporting the story. The media eventually learns, through the careless redaction of information by government lawyers, of Chase’s identity as one of the four plaintiffs, and reveals that Library Connection is the firm involved in the lawsuit. Christian’s name comes to light shortly thereafter. The attorneys warn Christian and the others that even though their identities and their firm have been revealed, they still cannot comment at all on the case. Christian, for one, wants to testify before Congress in regards to the upcoming reauthorization of the Patriot Act (see March 9, 2006), but cannot. The four plaintiffs quickly become known in the media as the “Connecticut John Does” or the “Connecticut Four.”
Appeals Court - In November 2005, a New York court of appeals hears the case. Christian and his colleagues are allowed to be present at the case this time, but are required to conceal their identities by entering and leaving the court building separately, are not allowed to sit together, and are not allowed to confer with, or even make eye contact with, each other or their attorneys. The Justice Department lawyers argue that even revealing themselves as recipients of a NSL would violate national security, an argument refuted by submission of the raft of news articles identifying Christian, Chase, and Library Connection. The government argues that those news reports don’t matter because no one in Connecticut reads the primary newspaper carrying the story, the New York Times, and that surveys prove that most people don’t believe what they read in the news anyway. The Justice Department also tries to get the news articles to be kept under seal in court papers. Christian characterizes the entire proceeding as “absurd.” The court refuses to admit the plaintiff’s claim that 48 states, including Connecticut, have laws protecting the privacy of library patrons, but does admit into evidence the claims by Gonzales that there is no statutory justification for claims of privacy. In an attempt to get the gag order lifted before the Patriot Act reauthorization, the plaintiff’s attorneys make an emergency appeal directly to the Supreme Court, but are rebuffed. [Senate Judiciary Committee, 4/11/2007] In June 2006, Nocek tells a reporter, “Imagine the government came to you with an order demanding that you compromise your professional and personal principles. Imagine then being permanently gagged from speaking to your friends, your family or your colleagues about this wrenching experience.… Under the Patriot Act, the FBI demanded Internet and library records without showing any evidence or suspicion of wrongdoing to a court of law. We were barred from speaking to anyone about the matter and we were even taking a risk by consulting with lawyers.” [Interview: George Christian, 6/2/2006]
Gag Order Lifted, Case Dropped - Weeks after President Bush signs into law the Patriot Act reauthorization (see March 9, 2006), the FBI voluntarily lifts the gag order without waiting for a court order. The agency then tries to get the original ruling against the gag order vacated, an attempt that the appeals court refuses. The appellate judges are clearly disturbed by the breadth of the NSL gag provisions; one appellate judge writes, “A ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens… Unending secrecy of actions taken by government officials may also serve as a cover for possible official misconduct and/or incompetence.” The appeals court refers the case back to district court, allowing the original opinion to stand. Weeks later, the FBI withdraws its NSL, saying that it no longer needs the information it originally requested. Christian later testifies, “In doing so, they removed the Patriot Act from the danger of court review.” Christian later says that he believes the entire procedure was managed as an attempt to prevent the case from becoming public knowledge before Congress could vote on the reauthorization of the Patriot Act. [Senate Judiciary Committee, 4/11/2007]

Entity Tags: Peter Chase, Senate Judiciary Committee, National Security Letters, US Department of Justice, Library Connection, Inc., George Christian, George W. Bush, American Civil Liberties Union, Barbara Bailey, Connecticut Four, Alberto R. Gonzales, Federal Bureau of Investigation, Kevin O’Conner

Timeline Tags: Civil Liberties

Lawyers for Sibel Edmonds file 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 urges 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. Edmonds’ lawyers include the American Civil Liberties Union and Mark Zaid of Krieger and Zaid, PLLC. If the Supreme Court rules in favor of Edmonds, she will 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, American Civil Liberties Union, Mark Zaid

Timeline Tags: Complete 911 Timeline

Congress passes a law that forbids the Department of Energy, the Nuclear Regulatory Commission, and their contractors from firing or otherwise punishing any employee who informs Congress about possible wrongdoing. President Bush issues a signing statement that says only he or his appointees will decide whether employees of either agency can give information to Congress. [Boston Globe, 4/30/2006]

Entity Tags: George W. Bush, Nuclear Regulatory Commission, US Department of Energy

Timeline Tags: Civil Liberties

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

Supreme Court Chief Justice William Rehnquist (see September 26, 1986), 80, dies after a ten-month battle with thyroid cancer. He will be replaced by John Roberts (see September 29, 2005), who formerly clerked for him. Rehnquist’s term as Chief Justice marked a “sea change” in the direction of the Court. Former Clinton solicitor general Walter Dellinger says: “It is quite clear that there are three dominant chief justices of American history, and they are John Marshall, Earl Warren, and William H. Rehnquist. I think that there’s just no question that he’s of enormous historical importance.” Conservative law professor and former Reagan Justice Department official Douglas Kmiec, a co-founder of the Federalist Society, says that Rehnquist presided over a “sea change” in the Court, taking it sharply to the right. [National Public Radio, 7/20/2005; Legal Times, 9/5/2005; Dean, 2007, pp. 129-137]

Entity Tags: William Rehnquist, US Supreme Court, Walter Dellinger, John G. Roberts, Jr, Douglas Kmiec, John Marshall, Earl Warren

Timeline Tags: Civil Liberties

William Bennett.William Bennett. [Source: Ashbrook Center, Ashland University]William Bennett, the conservative radio host, Fox News contributor, and former secretary of education under Ronald Reagan, tells his listeners that one way to drop the US crime rate would be to “abort every black baby in this country.” Bennett, who reaches a weekly audience of some 1.25 million, is apparently going off a claim in the economic treatise Freakonomics by Steven Levitt and Stephen Dubner, who argued that legalized abortion has lowered crime rates, since many aborted fetuses, growing up in poor homes and in single-parent or teenaged-parent homes, would have been more likely to commit crimes. Levitt and Dubner made no race-based claims. A caller to Bennett’s show says the national media “talk[s] a lot about the loss of revenue, or the inability of the government to fund Social Security, and I was curious, and I’ve read articles in recent months here, that the abortions that have happened since Roe v. Wade (see January 22, 1973), the lost revenue from the people who have been aborted in the last 30-something years, could fund Social Security as we know it today. And the media just doesn’t—never touches this at all.” After some back-and-forth about assumptions over how many of those aborted fetuses would have grown up to be productive citizens, speculations about costs, and Bennett’s citation of the Freakonomics claim, he says: “I do know that it’s true that if you wanted to reduce crime, you could—if that were your sole purpose, you could abort every black baby in this country, and your crime rate would go down. That would be an impossible, ridiculous, and morally reprehensible thing to do, but your crime rate would go down. So these far-out, these far-reaching, extensive extrapolations are, I think, tricky.” [Media Matters, 9/28/2005; CNN, 9/30/2005] Bennett will face heavy criticism for his remarks (see September 29-30, 2005), but in his turn will claim that he is the one owed the apology (see September 30 - October 1, 2005).

Entity Tags: Stephen Dubner, Steven Levitt, William J. Bennett

Timeline Tags: Domestic Propaganda

John Roberts.John Roberts. [Source: In These Times]John Roberts is approved by the Senate to become the new chief justice of the US Supreme Court, replacing the recently deceased William Rehnquist (see September 5, 2005). Roberts, who once clerked for Rehnquist while Rehnquist was an associate justice, also served in the Reagan Justice Department and as an associate counsel to then-President Reagan. He was deputy solicitor general in the first Bush administration. George W. Bush appointed him to the DC Circuit Court in 2001. [White House, 9/29/2005] Roberts was originally nominated to succeed the retiring Sandra Day O’Connor, but when Rehnquist died, Bush quickly withdrew the nomination for associate justice and refiled Roberts’s name for chief justice.
Characteristics and History - Roberts appeals to conservatives for a number of reasons; he has a powerful legal intellect, is soft-spoken, personable, and telegenic, and has not been outspoken about his views on issues like abortion and the right to privacy. Law professor Stephen Wermiel, who knows Roberts well, said in July that Roberts is not “somebody who… comes off as gruff or overbearing, which some people will recall was a factor in the [Robert] Bork hearings in 1987” (see July 1-October 23, 1987). Wermiel called Roberts’s nomination “a stroke of brilliance on the White House’s part.” One area of controversy surrounds Roberts’s work with Governor Jeb Bush of Florida during the bitterly contested 2000 presidential election, where Roberts helped construct the strategies used in the Bush v. Gore case that awarded George W. Bush the presidency. Another is Roberts’s membership in the Federalist Society, an organization of conservative activist judges, lawyers, and legal thinkers. A third is his advocacy, during his time with the first Bush administration, for scrapping decades of law providing for the separation of church and state in order to allow prayer in public schools. [National Public Radio, 7/20/2005] Four days before President Bush nominated him to the Court, Roberts voted in favor of upholding the Bush administration’s assertions about its wartime powers in the case of Hamdan v. Rumsfeld (see June 30, 2006), ruling that Bush need not consult Congress before setting up military commissions, and ruling that Bush is not bound by the strictures of the Geneva Convention. Liberals are unhappy with his stance against abortion, his representation as a private attorney of corporate mining interests seeking to dodge environmental regulations and of businesses trying to evade affirmative action requirements, as well as his attempts to curb environmentalists’ efforts to save endangered species. In 2007, reporter Charlie Savage will write that while progressives and liberals busily attacked Roberts for his positions on various “hot-button” issues, “[a]lmost lost amid the hubbub was” Roberts’s “unwavering commitment to the [expansion of] presidential power,” dating back to his 1980-81 clerkship under Rehnquist and his tenure as a White House lawyer under Ronald Reagan (see June-July 1983, October 1983, February 13, 1984, and May 16, 1984). [Savage, 2007, pp. 251-255]
Quick Confirmation - The Senate agreed to expedite Roberts’s confirmation process in order to allow him to preside over the next session of the Supreme Court in October, and so gave its members little time to peruse his record. Roberts sailed through the Senate Judiciary Committee hearings, and is confirmed by a 78-22 vote. Roberts hit a brief snag when he divulged that he had met with Attorney General Alberto Gonzales just six days before hearing oral arguments in the Hamdan case, had met with Vice President Cheney and a select coterie of top White House officials while considering his verdict, and had met with Bush for the president’s final approval on the Court nomination the same day that he handed down his favorable ruling. Though 22 Democrats vote against his confirmation, because Roberts’s ascension to the Court does not change the ideological balance among the nine justices (Roberts is replacing the equally conservative Rehnquist), Senate Democrats decided not to filibuster his nomination. [Dean, 2007, pp. 154-155; Savage, 2007, pp. 252]

Entity Tags: US Department of Justice, Stephen Wermiel, Senate Judiciary Committee, Federalist Society, George W. Bush, Charlie Savage, John G. Roberts, Jr, US Supreme Court

Timeline Tags: Civil Liberties

Senator John McCain (R-AZ), an ardent opponent of torture by US officials (see November 21, 2005), continues to press an amendment to a $440 billion defense appropriations bill that prohibits cruel, inhuman, and degrading treatment of prisoners held in US captivity (see July 24, 2005 and After). The bill also posits the US Army Field Manual as the uniform standard for interrogations by any Defense Department personnel. The Field Manual is being revised, and Pentagon sources have claimed the revisions will include a section on the importance of following the Geneva Conventions. The amendment is facing stiff opposition from the White House, which asserts that it would encroach on the power of the president as the commander in chief, and would threaten national security by reducing the ability of military interrogators to obtain critical intelligence from prisoners. On the floor of the Senate, McCain reads a letter from former Secretary of State Colin Powell, who had opposed Vice President Cheney on the issue of torture. Powell writes: “Our troops need to hear from Congress. The world will note that America is making a clear statement with respect to the expected future behavior of our soldiers.” McCain himself calls the White House’s legal theories on torture “strange,” and warns that enemies could use America’s justifications of torture as justifications for the torture of US captives. “We are Americans and we hold ourselves to humane standards of treatment of people no matter how evil or terrible they may be,” he says. Terrorists “don’t deserve our sympathy. But this isn’t about who they are. This is about who we are. These are the values that distinguish us from our enemies.” The White House continues to oppose the amendment. President Bush threatens to veto the entire bill, and Cheney circulates pro-torture talking points to friendly Congressional Republicans. Cheney, with CIA Director Porter Goss in tow, asks McCain to exempt CIA officials from the anti-torture amendment at the discretion of the president; McCain refuses. McCain is bolstered by a letter signed by over two dozen retired generals urging Congress to pass the amendment, including Powell and former Joint Chiefs chairman General John Shalikashvili. The amendment passes the Senate 90 to nine. However, the House leadership, steered by Speaker Dennis Hastert (R-IL), refuses to allow the amendment into the House version by refusing to let the House vote on it at all. It will take a House-Senate conference committee to decide the fate of the amendment. [Dubose and Bernstein, 2006, pp. 195; Savage, 2007, pp. 221]

Entity Tags: George W. Bush, Bush administration (43), Colin Powell, Dennis Hastert, US Department of Defense, Richard (“Dick”) Cheney, John McCain, Porter J. Goss, John M. Shalikashvili

Timeline Tags: Civil Liberties

Harriet Miers.Harriet Miers. [Source: Harpers.org]After President Bush successfully places conservative judge John Roberts as chief justice of the Supreme Court (see September 29, 2005), he names White House counsel and personal friend Harriet Miers to replace the retiring Sandra Day O’Connor on the Court.
Firestorm of Criticism - The media reacts adversely to this; Miers is said to be insufficiently qualified for the position and to have been chosen because of her loyalty to Bush. Her nomination is further derailed by opposition from hard-line conservatives, who do not believe she is conservative enough in her beliefs, particularly on abortion. Miers is certainly a weak choice from most viewpoints—she has no constitutional law experience and lacks a reputation as a strong legal thinker. She has never been a judge, nor even published an academic law journal article. Even conservative stalwart Robert Bork, who is still a center of controversy from his failed Court nomination (see July 1-October 23, 1987), calls Miers’s nomination “a disaster on every level.” When a letter Miers had written Bush for his birthday in 1997 is published in the media—in which Miers gushed over Bush in breathless, almost schoolgirlish prose, calling him “cool!” and “the best governor ever!”—the derision hits a fever pitch. When she submits a questionnaire to the Senate Judiciary Committee listing her background and qualifications for the job, a questionnaire almost devoid of pertinent and specific information, the ranking members of the committee threaten to have her do it over, a humiliation she avoids by withdrawing her name from consideration.
Trumped-Up Dispute over Executive Privilege - The Senate asks to see Miers’s White House memos to judge the quality of her legal work, and the White House refuses, citing executive privilege. Many view the dispute as a trumped-up conflict designed to allow the Bush administration to save what little face it can in the debacle; neoconservative columnist Charles Krauthammer had suggested engineering just such a “conflict” to stage “irreconcilable differences over documents” that would allow the Bush White House to withdraw Miers’s nomination over the issue.
Withdrawal - Miers indeed asks Bush to withdraw her nomination, and Bush cites the documents dispute in announcing the decision to pull Miers from consideration: “It is clear that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House—disclosures that would undermine a president’s ability to receive candid counsel,” Bush says. “Harriet Miers’s decision demonstrates her deep respect for this essential aspect of the Constitutional separation of powers—and confirms my deep respect and admiration for her.” Bush settles on another nominee, Samuel Alito, to replace O’Connor (see October 31, 2005 - February 1, 2006). [Savage, 2007, pp. 262-266; Dean, 2007, pp. 155]
Staunch Advocate for Expanded Executive Power - In 2007, reporter and author Charlie Savage will write that, in his view, the Bush administration chose Miers for a simple reason: she is a staunch advocate for the continued expansion of presidential power. “Miers… could be counted on to embrace Bush’s expansive view of presidential powers,” he will write. Miers is quite loyal to Bush “and, through him, the institution he represented.” Miers’s adoration of Bush on a personal level would further guarantee her “solid support for any presidential claim of power that might come before the Court,” he will write. “Like Roberts before her, she was an executive branch lawyer who identified with the task of defending the prerogatives of the president.” On the questionnaire she submits to the Senate Judiciary Committee, Miers writes that as White House counsel, she has gained significant constitutional experience in “presidential prerogatives, the separation of powers, executive authority, and the constitutionality of proposed regulations and statutes.… My time serving in the White House, particularly as counsel to the president, has given me a fuller appreciation of the role of the separation of powers in maintaining our constitutional system. In that role, I have frequently dealt with matters concerning the nature and role of the executive power.” [Savage, 2007, pp. 265-267]

Entity Tags: US Supreme Court, John G. Roberts, Jr, Sandra Day O’Connor, Samuel Alito, Senate Judiciary Committee, Harriet E. Miers, Charlie Savage, George W. Bush, Bush administration (43), Charles Krauthammer, Robert Bork

Timeline Tags: Civil Liberties

On October 6, 2005, the FBI warns of al-Qaeda subway bombings in New York City. It is alleged that a terror plot will be put into motion “on or about October 9, 2005.” A counterterrorism official states that the warning is unnecessary: “There was no there there.” [Rolling Stone, 9/21/2006 pdf file] It is later confirmed that New York City authorities had been aware of the threat for at least three days and had responded accordingly. Local TV station WNBC had been asked by federal authorities to hold the story back. [MSNBC, 6/4/2007] Meanwhile, Bush’s nomination of Harriet Miers to the Supreme Court is failing (see October 3-27, 2005). [Rolling Stone, 9/21/2006 pdf file]

Entity Tags: George W. Bush, Al-Qaeda, Federal Bureau of Investigation, WNBC, Harriet E. Miers, National Endowment for Democracy

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

Congress passes a law requiring the Customs and Border Patrol to relocate its illegal immigrant checkpoints near Tucson, Arizona, every seven days in order to prevent smugglers from being able to avoid those checkpoints. President Bush signs the law, then issues a signing statement saying that the Border Patrol should view the “relocation provision as advisory rather than mandatory” because, in his view, only the president has the constitutional authority to decide how to deploy law enforcement officers. As a result of Bush’s signing statement, Border Patrol authorities disobey the law, and explain to investigators from the Government Accountability Office that the law is not mandatory, but “advisory.” White House spokesman Tony Fratto later says in response to the Border Patrol’s refusal to obey the law: “The signing statements certainly do and should have an impact. They are real.” [Savage, 2007, pp. 242-243; Boston Globe, 6/19/2007]

Entity Tags: US Customs and Border Protection, George W. Bush, Tony Fratto, Government Accountability Office

Timeline Tags: Civil Liberties

The White House continues to fight against the McCain anti-torture amendment (see October 1, 2005). Vice President Cheney and CIA Director Porter Goss meet privately with Senator John McCain (R-AZ), the primary sponsor of the amendment, for 45 minutes to push a change in the language that would exempt CIA interrogators from the amendment’s restrictions. In 2007, author and reporter Charlie Savage will write on the remarkable aspects of Cheney’s requests. For the first time, the CIA would be “clearly authorize[d] to engage in abusive interrogations. In effect, it would legalize the abuse of detainees in CIA prisons, a matter that had previously been a gray area at best.” McCain flatly rejects Cheney’s proposal, and later says: “I don’t see how you could possibly agree to legitimizing an agent of the government engaging in torture. No amendment at all would be better than that.” [Savage, 2007, pp. 220]

Entity Tags: Richard (“Dick”) Cheney, Bush administration (43), Central Intelligence Agency, Porter J. Goss, John McCain, Charlie Savage

Timeline Tags: Torture of US Captives, Civil Liberties

David Addington.David Addington. [Source: Richard A. Bloom / Corbis]David Addington, the chief counsel for Vice President Dick Cheney, is named Cheney’s chief of staff to replace Lewis “Scooter” Libby, who was convicted of perjury and obstruction of justice in the Valerie Plame Wilson case (see February 13, 2002). [National Journal, 10/30/2005; MSNBC, 11/4/2005] Addington is described by one White House official as “the most powerful man you never heard of.” A former Justice Department official says of Addington, “He seems to have his hand in everything, and he has these incredible powers, energy, reserves in an obsessive, zealot’s kind of way.” He is, according to former Solicitor General Theodore Olson, Cheney’s “eyes, ears, and voice.” [US News and World Report, 5/21/2006] Addington is a neoconservative ideologue committed to dramatically expanding the power of the presidency, and a powerful advocate of the “unitary executive” theory of presidential power. He has been with Cheney for years, ever since Cheney chose him to serve as the Pentagon’s chief counsel while Cheney was Defense Secretary under Ronald Reagan. During that time, Addington was an integral part of Cheney’s battle to keep the Iran-Contra scandal from exploding (see 1984). [Washington Post, 10/11/2004; National Journal, 10/30/2005; MSNBC, 11/4/2005; US News and World Report, 5/21/2006] According to Larry Wilkerson, the former chief of staff to former Secretary of State Colin Powell, documentary evidence shows that Cheney’s office, and Addington in particular, were responsible for giving at least tacit approval for US soldiers to abuse and torture prisoners in Iraq (see January 9, 2002). In an administration devoted to secrecy, Addington stands out in his commitment to keeping information away from the public. [Washington Post, 10/11/2004] Though Addington claims to have a lifelong love affair with the Constitution, his interpretation of it is somewhat unusual. One senior Congressional staffer says, “The joke around here is that Addington looks at the Constitution and sees only Article II, the power of the presidency.” [US News and World Report, 5/21/2006] Addington’s influence in the White House is pervasive. He scrutinizes every page of the federal budget, hunting for riders that might restrict the power of the president. He worked closely with Gonzales to oppose attempts by Congress to pry information from the executive branch, and constantly battles the State Department, whose internationalist philosophy is at odds with his and Cheney’s own beliefs. [Washington Post, 10/11/2004] Former Reagan Justice Department official Bruce Fein calls Addington the “intellectual brainchild” of overreaching legal assertions that “have resulted in actually weakening the presidency because of intransigence.” According to Fein, Addington and Cheney are doing far more than reclaiming executive authority, they are seeking to push it farther than it has ever gone under US constitutional authority. They have already been successful in removing executive restraints formerly in place under the War Powers Act, anti-impoundment legislation, the legislative veto and the independent counsel statute. “They’re in a time warp,” Fein says. “If you look at the facts, presidential powers have never been higher.” [Washington Post, 10/11/2004] “He thinks he’s on the side of the angels,” says a former Justice Department official. “And that’s what makes it so scary.” [US News and World Report, 5/21/2006]

Entity Tags: Saddam Hussein, US Department of State, Theodore (“Ted”) Olson, US Department of Justice, US Department of Defense, Ronald Reagan, Lewis (“Scooter”) Libby, National Security Council, Bruce Fein, Bradford Berenson, 9/11 Commission, Richard (“Dick”) Cheney, David S. Addington, John Bellinger, Jack Goldsmith, Lawrence Wilkerson, John C. Yoo, Valerie Plame Wilson

Timeline Tags: Civil Liberties, Niger Uranium and Plame Outing

President Bush, stung by the opposition from both left and right that derailed his nomination of Harriet Miers for the Supreme Court (see October 3-27, 2005), nominates appeals court judge Samuel Alito to the Court to replace the retiring Sandra Day O’Connor. [Dean, 2007, pp. 155-157]
Staunch Advocate of Expanding Presidential Power - Alito has impeccable credentials, especially in contrast to the widely derided Miers. He is a graduate of Yale Law School, a long-time member of the conservative Federalist Society, and has years of decisions behind him as an appellate court judge. He is a product of the Reagan-era Justice Department. Bush calls him “one of the most accomplished and respected judges in America.” He is a powerful anti-abortion advocate, and a staunch supporter of granting ever more power to the executive branch, especially at the expense of the legislative and judicial branches. During his time in the Reagan Justice Department, he worked on a project to “increase the power of the executive to shape the law.” In 2000 he called the “unitary executive theory” (see April 30, 1986) the “gospel according to the OLC,” the Justice Department’s Office of Legal Counsel, where he worked for four years, and said he was firmly committed to advancing that theory. [Savage, 2007, pp. 267-271]
Bland Facade at Hearings - Alito receives a unanimous “well qualified” assessment from the American Bar Association, and the Bush administration expects that his nomination will sail through the Senate confirmation hearings as quickly and painlessly as did Bush’s previous choice for the Court, John Roberts (see September 29, 2005). The hearings are more contentious than Bush would like, and former Nixon White House counsel John Dean will say in 2007 that Alito’s performance before the Judiciary Committee “only served to confirm that the entire process has become little more than a great charade.” Senator Edward Kennedy (D-MA), one of the longest-serving members of the committee, observes that the Bush administration believes—correctly—that it can nominate radical right-wing extremists to the Court virtually at will, “as long as their views were not well known,” and adds, “[T]he current White House [has] turned the effort to hide nominees’ views into an art form.” Like Roberts, Alito presents a bland, non-confrontational facade to the committee (see January 9-13, 2006), refusing to take a personal stance on any issue and giving the impression that, as Kennedy will say after Alito and Roberts begin their service on the Court, he would be “as neutral as a baseball umpire.… The men who promised to be neutral umpires look more and more like loyal members of the president’s team.” [Dean, 2007, pp. 155-157]
Party-Line Confirmation - After an attempt by Senators Kennedy and John Kerry (D-MA) to filibuster Alito’s confirmation fails, the Senate confirms Alito’s ascension to the Court by a near-party line 58-42 vote, the closest such vote since Clarence Thomas’s (see October 13, 1991). Senator Orrin Hatch (R-UT) condemns what he calls the “very bitter partisanship” over Alito’s nomination, and accuses Democrats of playing politics: “When you have a man who has the decency, the legal ability and the capacities that Judge Alito has treated this way, I think it’s despicable.” Alito, whose hardline conservative beliefs are sufficiently masked during the hearings, replaces the far more moderate O’Connor, who before her retirement made up the “moderate center” of the Court with Justices Anthony Kennedy and David Souter. Now Alito joins Thomas, Roberts, and Antonin Scalia to form a hard-right conservative bloc on the Court which, when joined by center-right conservative Kennedy, forms a nearly unshakable conservative majority. [CNN, 2/1/2006]
Overturning Roe? - Many believe that Alito gives the Court the fifth vote it needs to finally overturn the landmark abortion case Roe v. Wade (see January 22, 1973), a longtime goal of social conservatives that would go far to make abortions illegal in the US. [Slate, 10/31/2005]

Entity Tags: Orrin Hatch, Sandra Day O’Connor, Samuel Alito, John Dean, US Supreme Court, John G. Roberts, Jr, John Kerry, George W. Bush, Clarence Thomas, Anthony Kennedy, David Souter, Edward M. (“Ted”) Kennedy, Harriet E. Miers, Antonin Scalia

Timeline Tags: Civil Liberties

By November 2005, when the CIA destroys videotapes of the interrogations of al-Qaeda leaders Abu Zubaida and Abd al-Rahim al-Nashiri (see November 2005), there are numerous reasons to not destroy them, some of them possibly legal requirements. [New York Times, 12/8/2007]
bullet In February 2003, Porter Goss, chairman of the House Intelligence Committee in 2003, Congressperson Jane Harman, the top Democrat on the committee, requested that the videotapes be preserved (see February 2003).
bullet Beginning in 2003 and continuing through 2005, White House officials, including White House deputy chief of staff Harriet Miers, requested that the videotapes be preserved (see Between 2003-Late 2005).
bullet In 2003, Justice Department lawyers also advised the CIA to preserve the videotapes (see 2003).
bullet Beginning in 2003, lawyers in the Zacarias Moussaoui trial have requested access to evidence of interrogations of al-Qaeda leaders like Zubaida. The CIA twice misinformed the judge in the trial about the existence of the videotapes (see May 7-9, 2003 and November 3-14, 2005). The trial will not be concluded until mid-2006 (see May 3, 2006).
bullet In September 2004, a judge rules the CIA has to preserve all records about the treatment of detainees overseas, as part of a lawsuit filed by the American Civil Liberties Union. The videotapes of Zubaida and al-Nashiri would clearly qualify, since both are held overseas (see September 15, 2004).
bullet Beginning in May 2005, Sen. Jay Rockefeller of the Senate Intelligence Committee asked the CIA to preserve over 100 documents about the CIA interrogation program. One of the documents requested is a report about the videotapes of interrogations and their possible illegality (see May-September 2005).
bullet In June and July 2005, two judges ordered the CIA to preserve all evidence relevant to detainees being held in Guantanamo prison. The interrogation videotapes are indirectly relevant because the cases of some detainees hinge on their alleged ties to Zubaida (see June-July 2005).
bullet In the summer of 2005, Director of National Intelligence John Negroponte met with CIA Director Porter Goss and “strongly advised” him not to allow the videotapes to be destroyed (see Summer 2005).
bullet The videotapes are also needed for a trial of Jose Padilla, who is indicted in November 2005 (see November 22, 2005).
An unnamed official familiar with the case will comment, “Everybody from the top on down told them not to do it and still they went ahead and did it anyway.” [Los Angeles Times, 12/9/2007] Despite this, many later reports will indicate that the National Clandestine Service (NCS), the CIA unit that takes the decision to destroy the tapes, believes the advice about their destruction is ambiguous. NCS head Jose Rodriguez will be said to feel he never gets a straight answer to the question of whether the tapes should be destroyed, despite extensive correspondence about the issue at the CIA. [Newsweek, 12/11/2007; Newsweek, 12/24/2007] A former intelligence official will say, “They never told us, ‘Hell, no.’ If somebody had said, ‘You cannot destroy them,’ we would not have destroyed them.” [New York Times, 12/11/2007]

Entity Tags: Central Intelligence Agency, Jose Rodriguez, Jr., Abd al-Rahim al-Nashiri, Abu Zubaida, National Clandestine Service

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

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

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