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Profile: US Department of Justice
US Department of Justice was a participant or observer in the following events:
Jay Bybee, the head of the Justice Department’s Office of Legal Counsel (OLC), and OLC lawyer John Yoo send a memo to White House counsel Alberto Gonzales and Defense Department chief counsel William Haynes. Known as the “Treaties and Laws Memorandum,” the document addresses the treatment of detainees captured in Afghanistan, and their eventual incarceration at Guantanamo and possible trial by military commissions. The memo asserts that the Geneva Conventions do not apply to al-Qaeda detainees, and the president has the authority to deny Taliban members POW status. The document goes on to assert that the president is not bound by international laws such as the Geneva Conventions because they are neither treaties nor federal laws. [US Department of Justice, 1/22/2002 ; American Civil Liberties Union [PDF], 1/28/2009 ]
Justice Department lawyer John Yoo sends a classified memo to White House counsel Alberto Gonzales. The contents of the memo remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo regards the application of international law to the United States (see January 22, 2002). [American Civil Liberties Union [PDF], 1/28/2009 ]
John Yoo, a lawyer in the Justice Department’s Office of Legal Counsel (OLC), sends a classified memo to White House counsel Alberto Gonzales. The contents of the memo will remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo is about the Geneva Conventions and is applicable to prisoners of war. Yoo’s boss, OLC head Jay Bybee, sends another secret memo about the Geneva Conventions to Deputy Attorney General Larry Thompson. [American Civil Liberties Union [PDF], 1/28/2009 ]
James Ho, an attorney-adviser to the Office of Legal Counsel (OLC), sends a classified memo to the OLC’s John Yoo. The memo, entitled “RE: Possible interpretation of Common Article 3 of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War,” will remain secret, but according to the American Civil Liberties Union (ACLU), it is likely a legal interpretation of Common Article 3 of the Geneva Convention, the section addressing the treatment of prisoners of war. The ACLU believes the memo interprets the scope of prohibited conduct under Common Artlcle 3, and gives specificity to the phrases “outrages upon personal dignity” and “humiliating and degrading treatment.” It also believes that the memo determines that Geneva does not apply to conflicts with terrorist organizations. Yoo will cite this memo in his 2003 memo concerning the military interrogation of so-called enemy combatants (see March 14, 2003). [American Civil Liberties Union [PDF], 1/28/2009 ; ProPublica, 4/16/2009]
The Justice Department and the Securities and Exchange Commission (SEC) launch an investigation into allegations that Monsanto representatives paid bribes to Indonesian officials in an effort to advance its business interests there. The Justice Department and SEC were reportedly informed of the suspected bribery by Monsanto itself, which says it launched its own investigation after noticing irregularities in the accounting of its Jakarta-based subsidiary. [Wall Street Journal, 5/27/2004] The investigation lasts about three years. On January 6, 2005, the Justice Department and the SEC announce that Monsanto has agreed to pay a $1 million penalty to the Justice Department, which has charged the company with violating the US Foreign Corrupt Practices Act. The company is also ordered to pay $500,000 to the US Securities and Exchange Commission (SEC). As part of the settlement, Monsanto will allow an “independent compliance expert” to audit and monitor the company and to ensure there are no further breaches of the US Foreign Corrupt Practices Act. The company says it accepts full responsibility and has taken action against those involved. “We accept full responsibility for the improper activities that occurred in connection with our Indonesian affiliates,” says Lori Fisher, one of the company’s spokespersons. “Such behavior is not condoned nor accepted at Monsanto, and the people involved are no longer employed by Monsanto.” [Associated Press, 1/6/2001; Reuters, 1/7/2001; BBC, 1/7/2005; Sunday Herald, 1/9/2005]
In a memo concurrent with the presidential declaration that the Geneva Convention does not apply to Taliban or al-Qaeda fighters (see February 7, 2002), Jay Bybee, the head of the Justice Department’s Office of Legal Counsel, sends a memo to White House counsel Alberto Gonzales. Bybee concludes that President Bush has the legal authority to conclude that Taliban fighters have no rights to prisoner of war status as defined under the Geneva Conventions, because the Taliban lack an organized command structure, do not wear uniforms, and do not consider themselves bound by Geneva. It also concludes that there is no need for the US to convene Article 5 tribunals under Geneva to determine the status of the Taliban, as Bush’s presidential determination of their status eliminates any doubt under domestic law. [US Department of Justice, 2/7/2002 ; American Civil Liberties Union [PDF], 1/28/2009 ]
David Walker, comptroller of the General Accounting Office (GAO) and a Ronald Reagan appointee, files a lawsuit to compel Vice President Dick Cheney and his office to reveal the names of the private businessmen and organizational officials that his energy task force (see January 29, 2001) met with to craft the Bush administration’s energy policies (see May 8, 2001). This is the first time since its creation in 1920 that the GAO has been forced to file suit to compel another government agency to follow the law and cooperate with its requests. [Dean, 2004, pp. 78-79] In a statement, Walker writes: “This is the first time that GAO has filed suit against a federal official in connection with a records access issue. We take this step reluctantly. Nevertheless, given GAO’s responsibility to Congress and the American people, we have no other choice. Our repeated attempts to reach a reasonable accommodation on this matter have not been successful. Now that the matter has been submitted to the judicial branch, we are hopeful that the litigation will be resolved expeditiously. [General Accounting Office, 2/22/2002 ]
'Fundamental Questions' about Governmental 'Checks and Balances' - Former Nixon White House counsel John Dean will write in 2004: “This was, to say the least, a high-stakes lawsuit. It raised fundamental questions about the very nature of our system of checks and balances. If the GAO could not get the information it requested, then there was a black hole in the federal firmament—a no-man’s land where a president and vice president could go free from Congressional oversight.” By random selection, the case lands in the court of Judge John Bates, a career Justice Department lawyer who once worked for the Whitewater investigative team led by Kenneth Starr, and had just recently been appointed to the bench by President Bush. The choice of Bates will prove critical to the verdict of the case. [Dean, 2004, pp. 78-79]
Schlafly: Secrecy a 'Mistake' - Conservative commentator and activist Phyllis Schlafly will write in 2002: “[T]he public wants to know how our energy policy was developed. When information is kept secret, the natural inference is that there must be something the administration is very eager to hide. While private businesses and households can be selective about what they tell the world, the American people are not willing to accord the same privacy to public officials paid by the taxpayers. Regardless of the legal veil woven over the energy policy meetings, Cheney’s secrecy is a political mistake.” [Eagle Forum, 3/6/2002]
Entity Tags: Kenneth Starr, Phyllis Schlafly, US Department of Justice, Richard (“Dick”) Cheney, John Dean, Government Accountability Office, Bush administration (43), David Walker, George W. Bush, Energy Task Force, John Bates
Timeline Tags: US Environmental Record, Civil Liberties
A memorandum sent by the Justice Department to Department of Defense General Counsel William J. Haynes states that the military commissions intended to try enemy combatants are “entirely creatures of the president’s authority as commander in chief… and are part and parcel of the conduct of a military campaign.” [Office of Assistant Attorney General, 2/26/2002 ] This raises questions regarding the independence of the commissions. The US government will try the detainees itself, which is why Human Rights Watch later concludes, “Under the rules, the president, through his designees, serves as prosecutor, judge, jury, and, potentially, executioner.” [Human Rights Watch, 1/9/2004] Amnesty International will similarly criticize the fact that “the commissions will lack independence.” [Amnesty International, 10/27/2004] Trial by a court that is not in complete independence from a government acting as a prosecutor is a violation of the defendants’ human rights. Article 14(1) ICCPR [International Covenant on Civil and Political Rights] states: “In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law.” Article 14(5) ICCPR furthermore grants “[e]verybody convicted of a crime… the right to his conviction and sentence being reviewed by a higher tribunal according to law.” But in the plans of the US government such a right is not foreseen. According to Human Rights Watch, “There is no appeal to an independent civilian court, violating a fundamental precept of international law as well as settled practice in the US military justice system.” [Human Rights Watch, 1/9/2004] The Justice Department memorandum advises that “incriminating statements may be admitted in proceedings before military commissions even if the interrogating officers do not abide by the requirements of Miranda.” The “Miranda warnings” are normally a prerequisite for allowing incriminating declarations by a defendant to the proceedings of a criminal trial.
Newly appointed US Attorney Todd Graves of Missouri (see October 11, 2001), already a co-chair of the Child Exploitation Subcommittee of the Attorney General’s Advisory Committee, and his office are subjected to a periodic Evaluation and Review Staff (EARS) evaluation by the Justice Department, and do very well. The EARS report finds that Graves is well regarded and respected by community leaders, agency personnel, and a majority of the federal judges in the district. The report finds that “the perception of the USAO [US Attorney’s Office] staff as to his performance is positive, even in this early stage of his tenure.” Graves is not slated for another review for four years, but by that point he will have been fired (see March 10, 2006). [US Department of Justice, Office of the Inspector General, 9/29/2008]
FBI agents John Vincent (left), and Robert Wright (right) appear on ABC News. [Source: ABC News]In early March 2002, New York Times reporter Judith Miller hears that FBI agent Robert Wright is complaining about the FBI’s mishandling of the Vulgar Betrayal investigation. Miller submits a list of written questions to Wright about his allegations. She also submits a similar list to FBI agent John Vincent, who also worked on Vulgar Betrayal and shares many of Wright’s views. Wright and Vincent quickly reply, but the FBI does not allow Miller to read their answers. Meanwhile, Miller contacts some other FBI officials to hear their side of the issue. She is allowed to speak to them. Because Miller is unable to hear from Wright or Vincent, she decides not to write the story. In December 2002, the Justice Department will hear an appeal from Wright and rule that no classified information was contained in the answers to Miller’s questions. But as of the end of 2005, all of Wright and Vincent’s answers still have not been released by the FBI. [Robert G. Wright, Jr., v. Federal Bureau of Investigation, 5/16/2005]
Deputy Assistant Attorney General Joan Larsen and Gregory Jacob, an attorney-adviser to the Office of Legal Counsel (OLC), send a classified memo to lawyers in the Justice Department’s civil division. The memo will remain secret, but the American Civil Liberties Union (ACLU) will learn that it regards the availability of habeas corpus protections to detainees captured in the US’s “war on terror.” [American Civil Liberties Union [PDF], 1/28/2009 ] The memo asserts that detainees have no habeas corpus protections, and therefore cannot challenge their detentions in US courts, despite multiple Supreme Court rulings to the contrary. [ProPublica, 4/16/2009]
A Washington Post article, relying on US officials, denies the existence of any Israeli spy ring. A “wide array of US officials” supposedly deny it, and Justice Department spokeswoman Susan Dryden says: “This seems to be an urban myth that has been circulating for months. The department has no information at this time to substantiate these widespread reports about Israeli art students involved in espionage.”
[Washington Post, 3/6/2002] The New York Times fails to cover the story at all, even months later. [Salon, 5/7/2002] By mid-March, Jane’s Intelligence Digest, the respected British intelligence and military analysis service, notes: “It is rather strange that the US media seems to be ignoring what may well be the most explosive story since the 11 September attacks—the alleged breakup of a major Israeli espionage operation in the USA.”
[Jane's Intelligence Digest, 3/15/2002]
The CIA sends a one-and-a-half-page cable to the White House, the FBI, the Justice Department, the Joint Chiefs of Staff, and the Defense Intelligence Agency, with news that a CIA source sent to Niger has failed to find any evidence to back claims that Iraq sought uranium from that country (see February 21, 2002-March 4, 2002). The cable contains an initial report of the source’s findings in Niger. [Knight Ridder, 6/12/2003; ABC News, 6/12/2003; Knight Ridder, 6/13/2003; Washington Post, 6/13/2003; BBC, 7/8/2003; BBC, 7/8/2003; US Congress, 7/7/2004] The agency rates the quality of the information in the report as “good,” with a rating of 3 out of 5. [CounterPunch, 11/9/2005]
Caveats and Denials - The report does not name the CIA source or indicate that the person is a former ambassador. Instead it describes the source as “a contact with excellent access who does not have an established reporting record” and notes that the Nigeriens with whom he spoke “knew their remarks could reach the US government and may have intended to influence as well as inform.” A later Senate report on the US’s pre-war intelligence on Iraq will state: “The intelligence report indicated that former Nigerien Prime Minister Ibrahim Mayaki was unaware of any contracts that had been signed between Niger and any rogue states for the sale of yellowcake while he was prime minister (1997-1999) or foreign minister (1996-1997). Mayaki said that if there had been any such contract during his tenure, he would have been aware of it.” Mayaki, according to the report, also acknowledged a June 1999 visit (see June 1999) by a businessman who arranged a meeting between Mayaki and an Iraqi delegation to discuss “expanding commercial relations” between Niger and Iraq. The intelligence report says that Mayaki interpreted “expanding commercial relations” to mean that the delegation wanted to discuss purchasing uranium. The meeting did take place, but according to the report, “Mayaki let the matter drop due to UN sanctions on Iraq.” The intelligence report also says that Niger’s former Minister for Energy and Mines, Mai Manga, told Wilson that there have been no sales outside of International Atomic Energy Agency (IAEA) channels since the mid-1980s. Mai Manga is also reported to have described how the French mining consortium controls Nigerien uranium mining and keeps the uranium very tightly controlled from the time it is mined until the time it is loaded onto ships in Benin for transportation overseas. Manga said he believed it would be difficult, if not impossible, to arrange a special clandestine shipment of uranium to a country like Iraq. [US Congress, 7/7/2004]
White House: Report Left Out Details, Considered Unimportant - Bush administration officials will say in June 2003 that the report left out important details, such as the trip’s conclusions. And consequently, the Washington Post will report in June 2003, “It was not considered unusual or very important and not passed on to Condoleezza Rice, the president’s national security adviser, or other senior White House officials.” [Washington Post, 6/12/2003 ; Washington Post, 6/13/2003; Knight Ridder, 6/13/2003]
CIA Source Doubts White House Claims - But the CIA source who made the journey, former ambassador Joseph Wilson, will find this explanation hard to believe. “Though I did not file a written report [he provided an oral briefing (see March 4-5, 2002)], there should be at least four documents in United States government archives confirming my mission,” he will later explain. “The documents should include the ambassador’s report of my debriefing in Niamey, a separate report written by the embassy staff, a CIA report summing up my trip, and a specific answer from the agency to the office of the vice president (this may have been delivered orally). While I have not seen any of these reports, I have spent enough time in government to know that this is standard operating procedure.” [New York Times, 7/6/2003]
Senior CIA Case Officer Backs Up Source - In 2007, Wilson’s wife, senior CIA case officer Valerie Plame Wilson, will write of the report (see March 4-5, 2002) that if standard protocol has been followed, the report is distributed to “all the government departments that have intelligence components, such as the State Department’s Bureau of Intelligence and Research (INR), the National Security Agency (NSA), the Pentagon, and the overseas military commands. All of us had every reason to believe that their finished report would indeed be sent to the vice president’s office as part of the established protocol.” According to Plame Wilson, who read the report when it was completed (see (March 6, 2002)), much of the report focuses on “Niger’s strict, private, and government controls on mining consortia to ensure that no yellowcake went missing between the uranium mines and the marketplace.” She will write in 2007 that her husband’s report “corroborated and reinforced what was already known.” Both she and her husband assume that the allegations are sufficiently disproven and will not be heard of again. [Wilson, 2007, pp. 112-114]
Little New Information - According to intelligence analysts later interviewed by Congressional investigators, the intelligence community does not believe the trip has contributed any significant information to what is already known about the issue, aside from the details of the 1999 Iraqi delegation. [US Congress, 7/7/2004]
Entity Tags: Condoleezza Rice, Federal Bureau of Investigation, Ibrahim Mayaki, Defense Intelligence Agency, Central Intelligence Agency, US Department of Justice, Mai Manga, Bush administration (43), Valerie Plame Wilson, Joint Chiefs of Staff, Joseph C. Wilson
Timeline Tags: Events Leading to Iraq Invasion, Niger Uranium and Plame Outing
Jay Bybee, the chief of the Justice Department’s Office of Legal Counsel (OLC), issues a classified memo to William Howard Taft IV, the chief counsel of the State Department, titled “The President’s Power as Commander in Chief to Transfer Captive Terrorists to the Control and Custody of Foreign Nations.” The memo, actually written by Bybee’s deputy John Yoo, says Congress has no authority to block the president’s power to unilaterally transfer detainees in US custody to other countries. In essence, the memo grants President Bush the power to “rendition” terror suspects to countries without regard to the law or to Congressional legislation, as long as there is no explicit agreement between the US and the other nations to torture the detainees. [US Department of Justice, 3/12/2002 ; Savage, 2007, pp. 148; American Civil Liberties Union [PDF], 1/28/2009 ; New York Times, 3/2/2009] The memo directly contradicts the 1988 Convention Against Torture (see October 21, 1994), which specifically forbids the transfer of prisoners in the custody of a signatory country to a nation which practices torture. Once the treaty was ratified by Congress in 1994, it became binding law. But Yoo and Bybee argue that the president has the authority as commander in chief to ignore treaties and laws that supposedly interfere with his power to conduct wartime activities. [Savage, 2007, pp. 148-149] In 2009, when the memos are made public (see March 2, 2009), Jennifer Daskal of Human Rights Watch says she is shocked at the memo: “That is [the Office of Legal Counsel] telling people how to get away with sending someone to a nation to be tortured. The idea that the legal counsel’s office would be essentially telling the president how to violate the law is completely contrary to the purpose and the role of what a legal adviser is supposed to do.” [Washington Post, 3/3/2009]
Attorneys from the CIA’s Office of Legal Counsel meet with a legal adviser from the National Security Council (NSC) and with members of the Justice Department’s Office of Legal Counsel. The meeting concerns the CIA’s proposed interrogation plan for newly captured alleged al-Qaeda operative Abu Zubaida (see March 28, 2002, March 28-August 1, 2002, and April - June 2002). The lawyers mull over the legal restrictions surrounding the proposed interrogations. CIA records will show that the NSC’s legal counsel will brief National Security Adviser Condoleezza Rice, Deputy National Security Adviser Stephen Hadley, Counsel to the President Alberto Gonzales, Attorney General John Ashcroft, and the head of the Justice Department’s criminal division, Michael Chertoff, on the discussion. [Senate Intelligence Committee, 4/22/2009 ]
Entity Tags: John Ashcroft, Central Intelligence Agency, Alberto R. Gonzales, Abu Zubaida, Condoleezza Rice, Office of Legal Counsel (CIA), Stephen J. Hadley, Michael Chertoff, US Department of Justice, National Security Council
Timeline Tags: Torture of US Captives, Complete 911 Timeline
Bud Cummins, the newly installed US Attorney for the Eastern District of Arkansas (see January 9, 2002), does well in his first Evaluation and Review Staff (EARS) evaluation by the Justice Department. He is described as highly regarded by the judiciary in his district as well as by law enforcement, civil client agencies, and his office personnel. [US Department of Justice, Office of the Inspector General, 9/29/2008] The 2005 evaluation of Cummins and his office will indicate that the first evaluation was performed in August 2002, not April. [US House of Representatives, Committee of the Judiciary, 4/13/2007 ] A follow-up letter recognizes Cummins for effectively implementing the department’s national priorities, his office’s work in anti-terrorism initiatives, and its success in prosecuting firearms-related cases. Cummins and his office receive praise for working to combat child pornography and health care fraud. Cummins is lauded for his effective management techniques. [US House of Representatives, Committee on the Judiciary, 5/21/2007]
In the days following the capture of al-Qaeda operative Abu Zubaida (see March 28, 2002), a group of top White House officials, the National Security Council’s Principals Committee, begins a series of meetings that result in the authorization of specific torture methods against Zubaida and other detainees. The top secret talks and meetings eventually approve such methods to be used by CIA agents against high-value terrorism suspects. The US media will not learn of this until six years later (see April 9, 2008). The Principals Committee meetings are chaired by National Security Adviser Condoleezza Rice, and attendees include Vice President Dick Cheney, CIA Director George Tenet, Secretary of Defense Donald Rumsfeld, Secretary of State Colin Powell, and Attorney General John Ashcroft. Tenet’s successor, Porter Goss, will also participate in the meetings. Sometimes deputies attend in place of their superiors. Rice’s group not only discusses and approves specific “harsh” methods of interrogation, but also approves the use of “combined” interrogation techniques on suspects who prove recalcitrant. The approved techniques include slapping and shoving prisoners, sleep deprivation, and waterboarding, or simulated drowning, a technique banned for decades by the US military. Some of the discussions of the interrogation sessions are so detailed that the Principals Committee virtually choreographs the sessions down to the number of times CIA agents can use specific tactics. [ABC News, 4/9/2008; Associated Press, 4/10/2008; ABC News, 4/11/2008] The Principals Committee also ensures that President Bush is not involved in the meetings, thereby granting him “deniability” over the decisions, though Bush will eventually admit to being aware of the decisions (see April 11, 2008). The Principals Committee, particularly Cheney, is described by a senior intelligence official as “deeply immersed” in the specifics of the decisions, often viewing demonstrations of how specific tactics work. [Associated Press, 4/10/2008]
Imminent Threat Calls for Extreme Measures - The move towards using harsh and likely illegal interrogation tactics begins shortly after the capture of Zubaida in late March 2002 (see Late March through Early June, 2002 and March 28, 2002). Zubaida is seen as a potentially critical source of information about potential attacks similar to 9/11. He is kept in a secret CIA prison where he recovers from the wounds suffered during his capture, and where he is repeatedly questioned. However, he is allegedly uncooperative with his inquisitors, and CIA officials want to use more physical and aggressive techniques to force him to talk (see March 28, 2002-Mid-2004 and April - June 2002). The CIA briefs the Principals Committee, chaired by Rice, and the committee signs off on the agency’s plan to use more extreme interrogation methods on Zubaida. After Zubaida is waterboarded (see April - June 2002), CIA officials tell the White House that he provided information leading to the capture of two other high-level al-Qaeda operatives, Khalid Shaikh Mohammed (see Shortly After February 29 or March 1, 2003) and Ramzi bin al-Shibh (see Late 2002 and May 2002-2003). The committee approves of waterboarding as well as a number of “combined” interrogation methods, basically a combination of harsh techniques to use against recalcitrant prisoners.
The 'Golden Shield' - The committee asks the Justice Department to determine whether using such methods would violate domestic or international laws. “No one at the agency wanted to operate under a notion of winks and nods and assumptions that everyone understood what was being talked about,” a second senior intelligence official will recall in 2008. “People wanted to be assured that everything that was conducted was understood and approved by the folks in the chain of command.” In August 2002, Justice Department lawyers in the Office of Legal Counsel will write a memo that gives formal legal authority to government interrogators to use harsh, abusive methods on detainees (see August 1, 2002). The memo is called the “Golden Shield” for CIA agents who worry that they could be held criminally liable if the harsh, perhaps tortuous interrogations ever become public knowledge. CIA veterans remember how everything from the Vietnam-era “Phoenix Program” of assassinations to the Iran-Contra arms sales of the 1980s were portrayed as actions of a “rogue,” “out-of-control” CIA; this time, they intend to ensure that the White House and not the agency is given ultimate responsibility for authorizing extreme techniques against terror suspects. Tenet demands White House approval for the use of the methods, even after the Justice Department issues its so-called “Golden Shield” memo explicitly authorizing government interrogators to torture suspected terrorists (see August 1, 2002). Press sources will reveal that Tenet, and later Goss, convey requests for specific techniques to be used against detainees to the committee (see Summer 2003). One high-ranking official will recall: “It kept coming up. CIA wanted us to sign off on each one every time. They’d say: ‘We’ve got so and so. This is the plan.’” The committee approves every request. One source will say of the discussions: “These discussions weren’t adding value. Once you make a policy decision to go beyond what you used to do and conclude it’s legal, [you should] just tell them to implement it.” [ABC News, 4/9/2008; Associated Press, 4/10/2008; ABC News, 4/11/2008] In April 2008, law professor Jonathan Turley will say: “[H]ere you have the CIA, which is basically saying, ‘We’re not going to have a repeat of the 1970s, where you guys have us go exploding cigars and trying to take out leaders and then you say you didn’t know about it.’ So the CIA has learned a lot. So these meetings certainly cover them in that respect.” [MSNBC, 4/10/2008] A former senior intelligence official will say, “If you looked at the timing of the meetings and the memos you’d see a correlation.” Those who attended the dozens of meetings decided “there’d need to be a legal opinion on the legality of these tactics” before using them on detainees. [Associated Press, 4/10/2008]
Ashcroft Uneasy at White House Involvement - Ashcroft in particular is uncomfortable with the discussions of harsh interrogation methods that sometimes cross the line into torture, though his objections seem more focused on White House involvement than on any moral, ethical, or legal problems. After one meeting, Ashcroft reportedly asks: “Why are we talking about this in the White House? History will not judge this kindly.” However, others in the discussions, particularly Rice, continue to support the torture program. Even after Jack Goldsmith, the chief of the Justice Department’s Office of Legal Counsel (OLC), withdraws the “Golden Shield” memo and after Powell begins arguing that the torture program is harming the image of the US abroad, when CIA officials ask to continue using particular torture techniques, Rice responds: “This is your baby. Go do it.”
Reaction after Press Learns of Meetings - After the press learns of the meetings (see April 9, 2008), the only person involved who will comment will be Powell, who will say through an assistant that there were “hundreds of [Principals Committee] meetings” on a wide variety of topics and that he is “not at liberty to discuss private meetings.” [ABC News, 4/9/2008; Associated Press, 4/10/2008; ABC News, 4/11/2008]
Entity Tags: Office of Legal Counsel (DOJ), Porter J. Goss, US Department of Justice, Ramzi bin al-Shibh, Richard (“Dick”) Cheney, Principals Committee, Khalid Shaikh Mohammed, Jack Goldsmith, John Ashcroft, Bush administration (43), Al-Qaeda, Abu Zubaida, Central Intelligence Agency, Colin Powell, Condoleezza Rice, George W. Bush, George J. Tenet, Donald Rumsfeld, Jonathan Turley, National Security Council
Timeline Tags: Torture of US Captives, Civil Liberties
Justice Department lawyer Patrick Philbin sends a classified memo to Daniel Bryant, a lawyer with the Justice Department’s Office of Legal Counsel, concerning the “Swift Justice Authorization Act.” The memo states that Congress has no power to interfere with President Bush’s authority to act as commander in chief to control US actions during wartime, including Bush’s authority to promulgate military commissions to try and sentence suspected terrorists and other detainees taken by the US as part of its “war on terror.” Philbin’s colleague, OLC lawyer John Yoo, will cite this memo in his 2003 memo concerning the military interrogation of so-called enemy combatants (see March 14, 2003). [US Department of Justice, 4/8/2002 ; American Civil Liberties Union [PDF], 1/28/2009 ] The memo will be made public in early 2009 (see March 2, 2009).
John McKay, the US Attorney for the Western District of Washington (see October 24, 2001), undergoes his first Evaluation and Review Staff (EARS) performance evaluation, as mandated by the Justice Department. The evaluation is positive, stating that “McKay was setting appropriate goals and priorities and was doing an outstanding job furthering interagency cooperation.… McKay was well respected by his staff, the judiciary, and all the law enforcement and civil agencies.” [US Department of Justice, Office of the Inspector General, 9/29/2008] A follow-up letter from the Executive Office for US Attorneys shows that McKay’s office garnered one of the highest cumulative scores (4.71 out of a possible 5) of all 93 US Attorneys’ offices. The letter singles out McKay’s work on border enforcement strategies and notes several areas in which McKay’s office displayed “best practices” in individual areas. McKay himself receives particular praise for his management of his office. Another follow-up letter effusively praises McKay’s work with anti-terrorism concerns, particularly his prosecution of several high-profile terrorism cases. McKay also receives recognition for outstanding work with white collar crime, firearms, child exploitation, environmental, and drug cases, and in implementing a new program to assist victims of fraud in receiving restitution. [US House of Representatives, Committee on the Judiciary, 5/21/2007]
The CIA believes that recently captured al-Qaeda operative Abu Zubaida (see March 28, 2002) is withholding “imminent threat information” from his US interrogators. To that end, the CIA sends attorneys from its Office of General Counsel to meet with Attorney General John Ashcroft, National Security Adviser Condoleezza Rice, Rice’s deputy Stephen Hadley, White House counsel Alberto Gonzales, and other senior White House aides to discuss what the Senate Intelligence Committee will later term “the possible use of alternative interrogation methods that differed from the traditional methods used by the US military and intelligence community” (see April 2002). The CIA proposes several “alternative” methods that equate to torture, including waterboarding, for Zubaida. After the meeting, the CIA asks the Justice Department’s Office of Legal Counsel (OLC) to prepare an opinion about the legality of the proposed interrogation methods. The CIA provides the OLC with, in the committee’s words, “written and oral descriptions of the proposed techniques.” The CIA also provides the OLC with information about the medical and psychological effects of the military’s Survival, Evasion, Resistance, and Escape (SERE) training, which trains soldiers how to counter and resist torture and harsh interrogation techniques (see December 2001). [Senate Intelligence Committee, 4/22/2009 ; BBC, 4/23/2009] Meanwhile, the CIA will send Zubaida to Thailand for torture (see March 2002 and April - June 2002).
In 2007, former CIA official John Kiriakou will claim to have details about the interrogation of al-Qaeda leader Abu Zubaida. Kiriakou was involved in the capture and early detention of Zubaida (see March 28, 2002), but claims he was transferred to another task before harsh interrogation techniques such as waterboarding were used on him (see Mid-May 2002 and After). [ABC News, 12/10/2007 ] Kiriakou will claim that the activities of the interrogators were closely directly by superiors at CIA Headquarters back in the US. “It wasn’t up to individual interrogators to decide, ‘Well, I’m gonna slap him.’ Or, ‘I’m going to shake him.’ Or, ‘I’m gonna make him stay up for 48 hours.’ Each one of these steps, even though they’re minor steps, like the intention shake, or the open-handed belly slap, each one of these had to have the approval of the deputy director for operations.… The cable traffic back and forth was extremely specific. And the bottom line was these were very unusual authorities that the [CIA] got after 9/11. No one wanted to mess them up. No one wanted to get in trouble by going overboard. So it was extremely deliberate.” [ABC News, 12/10/2007] Kiriakou also will say, “This isn’t something done willy-nilly. This isn’t something where an agency officer just wakes up in the morning and decides he’s going to carry out an enhanced technique on a prisoner. This was a policy made at the White House, with concurrence from the National Security Council and the Justice Department” (see Mid-March 2002). [London Times, 12/12/2007] In 2005, ABC News reported, “When properly used, the [CIA interrogation] techniques appear to be closely monitored and are signed off on in writing on a case-by-case, technique-by-technique basis, according to highly placed current and former intelligence officers involved in the program.” [ABC News, 11/18/2005] CIA Director George Tenet will similarly claim in a 2007 book that the interrogation of high-ranking prisoners like Zubaida “was conducted in a precisely monitored, measured way…” He will also say that “CIA officers came up with a series of interrogation techniques that would be carefully monitored at all times to ensure the safety of the prisoner. The [Bush] administration and the Department of Justice were fully briefed and approved the use of these tactics.” [Tenet, 2007, pp. 242] Zubaida’s interrogations are videotaped at the time (see Spring-Late 2002), and CIA Director Michael Hayden will later claim this was done “meant chiefly as an additional, internal check on the [interrogation] program in its early stages.” [Central Intelligence Agency, 12/6/2007] The videotapes will later be destroyed under controversial circumstances (see November 2005).
The Foreign Intelligence Surveillance Court (FISC) turns down the Justice Department’s bid for sweeping new powers to monitor and wiretap US citizens. FISC judges rule that the government has misused the law and misled the court dozens of times. The court finds that Justice Department and FBI officials supplied false or misleading information to the court in over 75 applications for search warrants and wiretaps, including one signed by then-FBI director Louis Freeh. While the court does not find that the misrepresentations were deliberate, it does rule that not only were erroneous statements made, but important information was omitted from some FISA applications. The judges found so many inaccuracies and errors in FBI agent Michael Resnick’s affidavits that they bar him from ever appearing before the court again. The court cites “the troubling number of inaccurate FBI affidavits in so many FISA applications,” and says, “In virtually every instance, the government’s misstatements and omissions in FISA applications and violations of the Court’s orders involved information sharing and unauthorized disseminations to criminal investigators and prosecutors.” The court is also unhappy with the Justice Department’s failure to answer for these errors and omissions, writing, “How these misrepresentations occurred remains unexplained to the court.” The court finds that in light of such impropriety, the new procedures proposed by Attorney General John Ashcroft in March would give prosecutors too much control over counterintelligence investigations, and would allow the government to misuse intelligence information for criminal cases. The ruling is a severe blow to Ashcroft’s attempts since the 9/11 attacks to allow investigators working in terrorism and espionage to share more information with criminal investigators. (These limitations were put in place after the Church Commission’s findings of massive fraud and misuse of domestic surveillance programs during the 1950s, 60s, and 70s. See April, 1976, January 29, 1976, and December 21, 1974). The Justice Department says of the decision, “We believe the court’s action unnecessarily narrowed the Patriot Act and limited our ability to fully utilize the authority Congress gave us.” Interestingly, the Justice Department also opposed the public release of FISC’s decision not to grant the requested powers. Stewart Baker, former general counsel of the NSA, calls the opinion “a public rebuke. The message is you need better quality control. The judges want to ensure they have information they can rely on implicitly.” Bush officials have complained since the 9/11 attacks that FISA requirements hamper the ability of law enforcement and intelligence agents to track terrorist suspects, including alleged hijacking conspirator Zacarias Moussaoui (see August 16, 2001). Those requirements mandate that agents must show probable cause that the subject of a search or wiretap is an agent of a foreign government or terrorist group, and, because FISA standards for obtaining warrants is far lower than for ordinary criminal warrants, mandate strict limits on the distribution of information secured from such investigations. The FBI searched Moussaoui’s laptop computer and other belongings without a FISA warrant because some officials did not believe they could adequately show the court that Moussaoui had any connections to a foreign government or terrorist group. In its ruling, FISC suggests that if the Justice Department finds FISA too restrictive, they should ask Congress to update the law. Many senators on the Judiciary Committee say they are willing to enact such reforms, but have complained of resistance from Ashcroft and a lack of cooperation from the Bush administration. [Washington Post, 8/23/2002] In November 2002, the Foreign Intelligence Surveillance Court of Review will overturn the FISC decision and give the Justice Department what it asked for (see November 18, 2002).
Entity Tags: Foreign Intelligence Surveillance Court, Federal Bureau of Investigation, Charles Grassley, US Department of Justice, Stewart Baker, Zacarias Moussaoui, National Security Agency, John Ashcroft, Church Commission, USA Patriot Act, Louis J. Freeh, Michael Resnick
Timeline Tags: Civil Liberties
Former FBI translator Sibel Edmonds files a lawsuit against the Justice Department. She alleges that the government leaked confidential information about her to the media in violation of the Privacy Act, and that it also violated her free speech and due process rights when it fired her in retaliation for her having reported possible illegal activity by co-worker Melek Can Dickerson and other security and management problems in the FBI’s language department. She is suing for monetary damages and reinstatement of her contract with the Bureau. [CNN, 7/7/2004] Dickerson and her husband Douglas Dickerson are subpoenaed in the case and the Justice Department is ordered by the court not to allow the couple to leave the country. [Anti-War (.com), 7/1/2004]
FBI Director Robert Mueller testifies before the Senate Judiciary Committee, just hours before the testimony of FBI agent Coleen Rowley, whose accusations of FBI malfeasance before the 9/11 attacks have sparked Congressional interest (see June 6, 2002). Mueller promises the committee that Rowley will not be punished for speaking out, and admits that Rowley is correct in some of her assessments, including her insistence that the bureau change to meet the threats posed by loosely organized terrorist groups. “When we looked back, we saw things that we should have done better and things that we should have done differently, but we also saw things that were done well and things that we should do more,” Mueller tells the assembled lawmakers. [CNN, 6/6/2002] Some senators take Mueller’s assessments even farther. Herbert Kohl (D-WI) says, “Had the FBI been totally alert and had the FBI used its current capabilities to the best of its ability, there was at least a very good chance that the terrorist plot could have been uncovered.” [Los Angeles Times, 6/7/2002]
Refuses to Answer Questions about Presidential Discussions - Committee member Joe Biden (D-DE) repeatedly asks Mueller whether President Bush consulted with him before the 2001 reorganization of the nation’s domestic security apparatus under the Homeland Security rubric (see September 20, 2001). Mueller refuses to discuss his conversations with Bush. “There is no executive privilege here,” Biden says. “I’m asking you whether you were consulted. I think this is ridiculous.” Law enforcement officials later confirm that both Mueller and Attorney General John Ashcroft were consulted as part of planning for the reorganization.
'Antiquated' Computer System - Democratic senator Charles Schumer (D-NY) questions Mueller about the antiquated computer system used by the FBI (Rowley herself will testify that her agents could not search FBI files for information pertaining to their inquiry into so-called “20th hijacker” Zacarias Moussaoui—see August 21, 2001 and August 23-27, 2001). Mueller confirms that Rowley and agents working with her could not search for terms such as “flight school,” but instead were limited to single-word searches such as “flight” or “school,” which produced masses of irrelevant results. Schumer calls the FBI system “almost laughable,” and adds, “It just makes my jaw drop to think that on 9/11 or on 9/10 the kind of technology that is available to most school kids, and certainly every small business in this country, wasn’t available to the FBI.” Mueller says it will take two or three years to upgrade the FBI’s computers. “I think we are way behind the curve,” he says.
Criticism of Civil Liberties Reductions - Senator Edward Kennedy (D-MA) criticizes Mueller for his decision, in conjunction with Attorney General John Ashcroft, to loosen restrictions on the FBI that limit the bureau’s ability to investigate and monitor citizen dissidents and organizations. “In particular, I’m troubled by the visa-holder-registration policy announced yesterday,” he says, referring to a Justice Department plan to require that about 100,000 foreigners in the United States be fingerprinted by the government. “Your agency is expending valuable time and resources to recruit these US citizens in our Arab and Muslim communities. And at the same time, the Justice Department is photographing, fingerprinting and registering their law-abiding siblings, cousins, visiting the United States.” [New York Times, 6/7/2002] “What impact do you think these policies will have on the Arab and Muslim communities in the US if you’re holding job fairs in the morning and fingerprinting them in the afternoon?” Kennedy asks. Mueller responds that the FBI will be careful not to step on anyone’s constitutional rights: “I still believe that we have to protect the freedoms that we have in this country that are guaranteed by the Constitution, or all the work we do to protect it will be at naught.” [Los Angeles Times, 6/7/2002]
Entity Tags: Charles Schumer, John Ashcroft, Coleen Rowley, Herbert Kohl, Edward M. (“Ted”) Kennedy, Federal Bureau of Investigation, US Department of Justice, Joseph Biden, Robert S. Mueller III, Senate Judiciary Committee, Zacarias Moussaoui
Timeline Tags: Complete 911 Timeline
In a memo to Attorney General John Ashcroft, Jay Bybee, the head of the Justice Department’s Office of Legal Counsel (OLC), says that the US has the absolute right to detain US citizen Jose Padilla without charge and without legal representation (see May 8, 2002). Bybee also claims that the Posse Comitatus Act, which prevents the US military from operating inside the US itself, “poses no bar to the military’s operations in detaining Padilla.” [US Department of Justice, 6/8/2002 ; American Civil Liberties Union [PDF], 1/28/2009 ] The day after this memo is issued, Padilla is classified as an “enemy combatant” and transferred to the US Naval Brig in Charleston, South Carolina (see June 9, 2002).
In a court brief in the detention case of Yaser Esam Hamdi (see December 2001), the Bush Justice Department argues against a judge’s decision that Hamdi, a US citizen, must be allowed representation by a lawyer (see June 11, 2002). Though that right is a fundamental precept of American jurisprudence, the Justice Department argues that to allow Hamdi to have access to a lawyer—indeed, to have any contact with the outside world—would interfere with his interrogation. Moreover, only the president and his officials can decide who is and who is not a terrorist, so the courts have no right to demand access to evidence and Hamdi has no need for a lawyer. “The courts may not second-guess the military’s enemy combatant determination,” the Bush lawyers argue. “Going beyond that determination would require the courts to enter an area in which they have no competence, much less institutional expertise, [and] intrude upon the constitutional prerogative of the commander in chief (and military authorities acting under his control).” The appeals court will rule in favor of the Bush administration’s argument, deny Hamdi access to a lawyer, and instruct the lower courts to be far more deferential to the president’s power as commander in chief in future cases (see July 12, 2002). [UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, 6/12/2002 ; Savage, 2007, pp. 152-153]
Vice President Dick Cheney phones Senate Intelligence Committee chairman Bob Graham (D-FL). Cheney’s call comes early in the morning, and Graham takes it while still shaving. Cheney is agitated; he has just read in the newspaper that telephone calls intercepted by the NSA on September 10, 2001 warned of an imminent al-Qaeda attack. But, the story continues, the intercepts were not translated until September 12, the day after the 9/11 attacks (see September 10, 2001). Cheney is enraged that someone leaked the classified information from the NSA intercepts to the press. As a result, Cheney says, the Bush administration is considering terminating all cooperation with the joint inquiry by the Senate and House Intelligence Committees on the government’s failure to predict and prevent the attacks (see September 18, 2002). (Graham co-chairs the inquiry.) Classified records would no longer be made available to the committees, and administration witnesses would not be available for interviews or testimony. Furthermore, Cheney says, unless the committee leaders take action to find out who leaked the information, and more importantly, take steps to ensure that such leaks never happen again, President Bush will tell the citizenry that Congress cannot be trusted with vital national security secrets. “Take control of the situation,” Cheney tells Graham. The senator responds that he, too, is frustrated with the leaks, but Cheney is unwilling to be mollified.
Quick Capitulation - At 7:30 a.m., Graham meets with the chairman of the House Intelligence Committee, Porter Goss (R-FL), and the ranking members of the committees, Senator Richard Shelby (R-AL, who will later be accused of leaking the information) and Nancy Pelosi (D-CA). They decide to request that the Justice Department conduct a criminal inquiry into whether anyone on either committee, member or staffer, leaked the information to the press. One participant in the meeting later says, “It was a hastily made decision, made out of a sense of panic… and by people with bleary eyes.” Another person involved in the decision later recalls: “There was a real concern that any meaningful oversight by Congress was very much at stake. The political dynamic back then—not that long after September 11—was completely different. They took Cheney’s threats very seriously.” In 2007, reporter Murray Waas will observe that Cheney and other administration officials saw the leak “as an opportunity to undercut Congressional oversight and possibly restrict the flow of classified information to Capitol Hill.”
Graham: Congress Victimized by White House 'Set Up' - In 2007, after his retirement from politics, Graham will say: “Looking back at it, I think we were clearly set up by Dick Cheney and the White House. They wanted to shut us down. And they wanted to shut down a legitimate Congressional inquiry that might raise questions in part about whether their own people had aggressively pursued al-Qaeda in the days prior to the September 11 attacks. The vice president attempted to manipulate the situation, and he attempted to manipulate us.… But if his goal was to get us to back off, he was unsuccessful.” Graham will add that Goss shared his concerns, and say that in 2003, he speculates to Goss that the White House had set them up in order to sabotage the joint inquiry; according to Graham, Goss will respond, “I often wondered that myself.” Graham will go on to say that he believes the NSA leak was not only promulgated by a member of Congress, but by White House officials as well; he will base his belief on the fact that Washington Post and USA Today reports contain information not disclosed during the joint committee hearing. “That would lead a reasonable person to infer the administration leaked as well,” he will say, “or what they were doing was trying to set us up… to make this an issue which they could come after us with.”
White House Goes Public - The same day, White House press secretary Ari Fleischer tells reporters, “The president [has] very deep concerns about anything that would be inappropriately leaked that could… harm our ability to maintain sources and methods and anything else that could interfere with America’s ability to fight the war on terrorism.”
Investigation Will Point to Senate Republican - An investigation by the Justice Department will determine that the leak most likely came from Shelby, but Shelby will deny leaking the intercepts, and the Senate Ethics Committee will decline to pursue the matter (see August 5, 2004). [National Journal, 2/15/2007]
Entity Tags: National Security Agency, George W. Bush, Bush administration (43), Daniel Robert (“Bob”) Graham, Ari Fleischer, House Intelligence Committee, Nancy Pelosi, Senate Ethics Committee, Senate Intelligence Committee, Richard Shelby, Richard (“Dick”) Cheney, Porter J. Goss, US Department of Justice, Murray Waas
Timeline Tags: Complete 911 Timeline, Civil Liberties
John Yoo, a lawyer with the Office of Legal Counsel (OLC), sends a classified memo to Daniel J. Bryant, another OLC lawyer. Yoo concludes that the Constitution “vests full control of the military operations of the United States to the president,” and denies Congress any role in overseeing or influencing such operations. The memo is consisent with an earlier Justice Department memo (see April 8, 2002). Yoo will cite this memo in his 2003 memo concerning the military interrogation of so-called enemy combatants (see March 14, 2003). [US Department of Justice`, 6/27/2002 ; American Civil Liberties Union [PDF], 1/28/2009 ] The memo ignores the Non-Detention Act, which states, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress.” [ProPublica, 4/16/2009] It will be made public in early 2009 (see March 2, 2009).
The US secretly indicts Rajaa Gulum Abbas and Abdul Malik for attempting to buy $32 million in Stinger missiles and other military weaponry in an undercover arms-dealing investigation. However, a US official states that Abbas is an alleged member of the ISI, and is thought to have ties to Middle Eastern militant groups and arms-trafficking operations. He also appears to have foreknowledge of the 9/11 attacks. Abdul Malik is said to be Abbas’s money man. Abdul Malik is not related to Mohammed Malik, another Pakistani targeted by the undercover operation. The chief US informant in the case, Randy Glass, says that both men also have clear ties to al-Qaeda, and the arms were going to be funneled to al-Qaeda and used against American targets. [Palm Beach Post, 3/20/2003; South Florida Sun-Sentinel, 3/20/2003] The indictment is not revealed until March 2003; both men still remain missing and are presumed to be in Pakistan. The US says it is still working on capturing and extraditing Abbas and Malik. [NBC, 3/18/2003] NBC seems to have no trouble reaching Abbas in Pakistan by telephone. [MSNBC, 8/2/2002; NBC, 3/18/2003] The indictment “makes no mention of Pakistan, any ties to Afghanistan’s former Taliban regime or the ultimate destination of the weapons.” [Palm Beach Post, 3/20/2003]
Military lawyers for a detainee believed to be Abu Zubaida (see March 28, 2002) lodge numerous complaints with unidentified White House officials over the torture of their client. Zubaida has been subjected to waterboarding and other abuses by CIA interrogators (see March 28, 2002-Mid-2004, March 28-August 1, 2002, Mid-April-May 2002, Mid-April 2002, and Mid-May 2002 and After). The complaints trigger a hastily arranged meeting between Vice President Cheney, White House counsel Alberto Gonzales, Cheney’s chief counsel David Addington, National Security Adviser Condoleezza Rice, and a number of officials from the Defense and State Departments. The discussion centers on the production of a legal memo specifically for the CIA that would provide retroactive legal immunity for the use of waterboarding and other illegal interrogation methods. According to a subsequent investigation by the Justice Department (see February 22, 2009), the participants in the discussion believe that the methods used against Zubaida are legal because on February 7, 2002, President Bush signed an executive order stating that terrorists were not entitled to protections under the Geneva Conventions (see February 7, 2002). Nevertheless, the participants agree that methods such as waterboarding probably violate international and domestic laws against torture, and therefore the CIA and the Bush administration would both benefit from a legal opinion stating what techniques are legal, and why they do not fit the legal definition of torture. The meeting results in the production of the so-called “Golden Shield” memo (see August 1, 2002). [Public Record, 2/22/2009]
Entity Tags: US Department of State, Bush administration (43), Alberto R. Gonzales, Abu Zubaida, Central Intelligence Agency, US Department of Justice, Condoleezza Rice, Geneva Conventions, David S. Addington, Richard (“Dick”) Cheney, George W. Bush, US Department of Defense
Timeline Tags: Civil Liberties
Joint Personnel Recovery Agency logo. [Source: US Air Force]The Joint Personnel Recovery Agency (JPRA), the Pentagon agency tasked with advising the Defense Department on the use of harsh interrogation techniques—torture—against suspected terrorists in US custody (see December 2001), sends an unsigned memo to the Pentagon’s chief counsel, William Haynes, advising him that the use of such methods would constitute “torture,” and would produce “unreliable information” from torture victims.
Memo Warned of Torture Would Produce Bad Information - “The requirement to obtain information from an uncooperative source as quickly as possible—in time to prevent, for example, an impending terrorist attack that could result in loss of life—has been forwarded as a compelling argument for the use of torture,” the document reads. “In essence, physical and/or psychological duress are viewed as an alternative to the more time-consuming conventional interrogation process. The error inherent in this line of thinking is the assumption that, through torture, the interrogator can extract reliable and accurate information. History and a consideration of human behavior would appear to refute this assumption.” The key deficiency of physical or psychological duress is the reliability and accuracy of the information gained, the memo says. “A subject in pain may provide an answer, any answer, or many answers in order to get the pain to stop.” The memo also warns that the use of torture by the US could influence US enemies to torture American captives: “The unintended consequence of a US policy that provides for the torture of prisoners is that it could be used by our adversaries as justification for the torture of captured US personnel.” It concludes that “the application of extreme physical and/or psychological duress (torture) has some serious operational deficits, most notably the potential to result in unreliable information.” The word “extreme” is underlined.
Also Sent to CIA - Besides Haynes, the memo is forwarded to the Pentagon’s Office of the General Counsel, and apparently to CIA chief counsel John Rizzo and the Justice Department. It is unclear whether high-ranking White House officials will see the document.
One of Many Warnings - JPRA chief of staff Daniel Baumgartner will later say that the agency “sent a lot of cautionary notes” regarding harsh techniques. “There is a difference between what we do in training and what the administration wanted the information for,” Baumgartner will tell a reporter in 2009. “What the administration decided to do or not to do was up to the guys dealing with offensive prisoner operations.… We train our own people for the worst possible outcome… and obviously the United States government does not torture its own people.”-
Senator Says Memo Suppressed - After the memo becomes public knowledge as part of a Senate report on Bush administration torture decisions (see April 21, 2009), Senator Carl Levin (D-MI), the chairman of the Armed Services Committee, will say that he believes the memo was deliberately ignored and perhaps suppressed. Levin will call the memo’s treatment “part of a pattern of squelching dissent.” A Bush administration official will later say of the memo: “That information was not brought to the attention of the principals. That would have been relevant. The CIA did not present with pros and cons, or points of concern. They said this was safe and effective, and there was no alternative.” The memo conflicts with proposals from two JPRA psychologists heavily involved in creating a program of harsh interrogation tactics (see January 2002 and After). [Joint Personnel Recovery Agency, 7/2002 ; Washington Post, 4/25/2009]
Instructors from the Joint Personnel Recovery Agency (JPRA), which oversees the military’s Survival, Evasion, Resistance, and Escape (SERE) training program, conduct a training seminar for intelligence officials. JPRA officials, including senior psychologist Bruce Jessen, have proposed a set of interrogation procedures that amounts to torture (see January 2002 and After and April 16, 2002), and the JPRA instructors are now training CIA and other agency officials in those procedures. Two JPRA legal advisers tell the group that such harsh interrogation methodologies are already deemed acceptable, even though the Justice Department has not yet issued such approval (see August 1, 2002). The lawyers tell the seminar participants, “They [interrogators] could use all forms of psychological pressure discussed, and all the physiological pressures with the exception of the ‘water board.’” The lawyers say that waterboarding might also be permitted, but interrogators “would need prior approval.” [Washington Post, 4/22/2009] During the seminar, CIA agents are given two days of training in waterboarding (see July 1-2, 2002). In 2009, the media learns that Jessen and his partner, James Mitchell, are paid $1,000 a day for the training (see April 30, 2009).
Zacarias Moussaoui indicates that he is willing to disclose information to the US authorities, but his overtures are rejected by the FBI and the Justice Department. After learning of Moussaoui’s offer, Minneapolis FBI counsel Coleen Rowley contacts assistants to FBI director Robert Mueller and to Justice Department manager Michael Chertoff. She says she is worried about Moussaoui’s research into cropdusting and wind patterns, and that the information he could provide may prove useful averting a second strike by al-Qaeda. Rowley will later comment: “But by that time Moussaoui had been charged with the death penalty and I deduced that [attorney general John] Ashcroft would not allow any potential for bargaining leverage to be injected into the case.” [Huffington Post, 5/2/2007]
The Justice Department announces that only 74 of the 752 people detained on immigration charges after 9/11 are still in US custody. By December, only six of them will remain in custody (see December 11, 2002). Hundreds more were detained on other charges or as material witnesses, but no numbers pertaining to them have been released. 611 were subject to secret hearings. Senator Carl Levin (D-MI), who had requested the figures, says, “It took the Justice Department more than three months to produce a partial response to my letter.” But the answers raise “a number of additional questions, including why closed hearings were necessary for so many people.” Though many were held for months, “the vast majority were never charged with anything other than overstaying a visa.” [New York Times, 7/11/2002] All the deportation hearings for these people have been held in secret as well. Some say the government is cloaking its activities out of embarrassment, because none of these people have turned out to have any ties to terrorism. [New York Times, 7/11/2002; Detroit Free Press, 7/18/2002]
CIA attorneys meet with White House Counsel Alberto Gonzales, the Justice Department’s head of its criminal division, Michael Chertoff, and aides and lawyers from the National Security Council, Justice Department, and FBI. The meeting provides participants with an overview of the proposed interrogation plan for captured Islamist militant Abu Zubaida (see Mid-May, 2002). [Senate Intelligence Committee, 4/22/2009 ] The CIA has already begun torturing Zubaida (see April - June 2002, Mid-May, 2002, Mid-May 2002 and After, Mid-May 2002 and After, and June 2002).
CIA Director George Tenet meets with National Security Adviser Condoleezza Rice. Rice tells Tenet that the CIA can begin its proposed interrogation plan for captured alleged al-Qaeda operative Abu Zubaida (see March 28, 2002 and July 13, 2002), advising him “that the CIA could proceed with its proposed interrogation” of Zubaida. Rice’s authorization is subject to a determination of legality by the Justice Department’s Office of Legal Counsel (see August 1, 2002). [Senate Intelligence Committee, 4/22/2009 ; BBC, 4/23/2009] The CIA has already begun torturing Zubaida (see April - June 2002, Mid-May, 2002, Mid-May 2002 and After, Mid-May 2002 and After, and June 2002).
John Yoo, a lawyer with the Office of Legal Counsel (OLC), sends a classified memo to White House counsel Alberto Gonzales. The memo’s contents will remain secret, but the American Civil Liberties Union (ACLU) will learn that the memo regards the 1984 Convention Against Torture. According to the memo, the first fifteen articles of the Convention, ratified by the United States almost a decade before, “are non-self executing and place no affirmative obligations on the executive branch.” Furthermore, international law in general “lacks domestic legal effect, and in any event can be overridden by the president,” the memo states. In essence, Yoo concludes that the Convention can be ignored by the president. Yoo will cite this memo in his 2003 memo concerning the military interrogation of so-called enemy combatants (see March 14, 2003). [United Nations High Commissioner for Human Rights, 12/10/1984; American Civil Liberties Union [PDF], 1/28/2009 ; ProPublica, 4/16/2009]
In 2002, federal prosecutors are building a case against a group of Islamist militants for attempting to start a militant training camp in Oregon in 1999 (see November 1999-Early 2000). They prepare charges against radical London imam Abu Hamza al-Masri, his “highly public aide” Haroon Rashid Aswat, Oussama Kassir (who visited the prospective camp with Aswat), and James Ujaama. Ujaama is living in Seattle, but the others are believed to be overseas. Seattle prosecutors want to seek a grand jury indictment against all of them, which would result in arrest warrants and possible detention for extradition. However, this plan is blocked by higher-level officials at Justice Department headquarters, who want most of the case to be handled by the US Attorney’s Office in New York City. Seattle prosecutors are only allowed to bring charges against Ujaama. [Seattle Times, 7/24/2005] They go ahead and arrest Ujaama in August 2002, finding weapons and training materials, and charge him with conspiring with Abu Hamza “to provide material support and resources” to the Taliban. One of his associates, Feroz Abbasi, is already in Guantanamo Bay, and is talking to interrogators about trips Ujaama has made to Afghanistan (see December 2000-December 2001). Ujaama quickly agrees to co-operate with the authorities, giving them details about Abu Hamza’s activities, and is given a two-year sentence for a lesser offence. [O'Neill and McGrory, 2006, pp. 189-190, 198-200] The others are merely listed in Ujaama’s indictment as unindicted co-conspirators. Abu Hamza has actually been working as an informant for British intelligence (see Early 1997), but by early 2004 his relationship with the British has soured (see April 2003 and April 26, 2004), and the US Justice Department will finally indict him for charges relating to the training camp in May 2004. However, Aswat still will not be indicted. When asked why Aswat is not indicted as well, a federal official in Seattle will reply with frustration, “That’s a great question.” [Seattle Times, 7/24/2005] Shortly after the 7/7 London bombings (see July 7, 2005), it will be widely reported that Aswat was the attack’s mastermind (see Late June-July 7, 2005). Then a counterterrorism expert will claim that Aswat was also an informant for British intelligence, and this explains why the US never indicted him and other mysteries surrounding him (see July 29, 2005).
Attorney General John Ashcroft is informed that a detainee has been waterboarded 119 times. The source of the notification is unclear, although it presumably comes from the agency doing the waterboarding, the CIA. [Central Intelligence Agency, 5/7/2004, pp. 50 ] The detainee is presumably Abu Zubaida, who was waterboarded at least 83 times (see May 2003), although it could also be Khalid Shaikh Mohammed, who was waterboarded 183 times (see April 18, 2009).
Justice Department lawyer John Yoo, of the Office of Legal Counsel (OLC), signs off on a secret opinion that approves a long, disturbing list of harsh interrogation techniques proposed by the CIA. The list includes waterboarding, a form of near-drowning that some consider mock execution, and which has been prosecuted as a war crime in the US since at least 1901. The list only forbids one proposed technique: burying a prisoner alive (see February 4-5, 2004). Yoo concludes that such harsh tactics do not fall under the 1984 Convention Against Torture (see October 21, 1994 and July 22, 2002) because they will not be employed with “specific intent” to torture. Also, the methods do not fall under the jurisdiction of the International Criminal Court because “a state cannot be bound by treaties to which it has not consented”; also, since the interrogations do not constitute a “widespread and systematic” attack on civilian populations, and since neither Taliban nor al-Qaeda detainees are considered prisoners of war (see February 7, 2002), the ICC has no purview. The same day that Yoo sends his memo, Yoo’s boss, OLC chief Jay Bybee, sends a classified memo to the CIA regarding the interrogation of al-Qaeda members and including information detailing “potential interrogation methods and the context in which their use was contemplated” (see August 1, 2002). [US Department of Justice, 8/1/2002; Washington Post, 6/25/2007; American Civil Liberties Union [PDF], 1/28/2009 ] Yoo will later claim that he warns White House lawyers, as well as Vice President Cheney and Defense Secretary Donald Rumsfeld, that it would be dangerous to allow military interrogators to use the harshest interrogation techniques, because the military might overuse the techniques or exceed the limitations. “I always thought that only the CIA should do this, but people at the White House and at [the Defense Department] felt differently,” Yoo will later say. Yoo’s words are prophetic: such excessively harsh techniques will be used by military interrogators at Guantanamo, Abu Ghraib, and elsewhere. [Washington Post, 6/25/2007]
Jay Bybee, the head of the Justice Department’s Office of Legal Counsel (OLC), writes a secret memo to John Rizzo, the acting general counsel of the CIA. The memo is entitled: “Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency: Interrogation of al-Qaeda Operative.” It will be released seven years later, after prolonged litigation by the American Civil Liberties Union (ACLU—see April 16, 2009). It parallels another secret memo written by OLC lawyer John Yoo for White House counsel Alberto Gonzales (see August 1, 2002). The memo, written at the request of CIA officials, finds that the use of the interrogation techniques proposed for use on captured Islamist extremist Abu Zubaida are consistent with federal law (see Mid-May, 2002 and July 17, 2002). The OLC has determined that the only federal law governing the interrogation of a non-citizen detained outside the US is the federal anti-torture statute, Section 2340A of Title 18 of the US Code. Bybee’s memo goes into detail about 10 torture techniques, and explains why they are all legal to use on Abu Zubaida (see March 28, 2002), currently being held in a secret CIA “black site” in Thailand (see April - June 2002). Bybee writes that Zubaida will enter a new, “increased pressure phase” of interrogation, and will be dealt with by a “Survival, Evasion, Resistance, and Escape (‘SERE’) training psychologist, who has been involved with the interrogations since they began.” [Office of Legal Counsel, 8/1/2002 ; American Civil Liberties Union [PDF], 1/28/2009 ; Senate Intelligence Committee, 4/22/2009 ]
Lack of Intent Equates Legality - As long as there is no intent to cause “severe pain or suffering,” Bybee writes, none of these techniques violate US law. “To violate the statute, an individual must have the specific intent to inflict severe pain or suffering,” Bybee writes. “Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture.… We have further found that if a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent.” [Office of Legal Counsel, 8/1/2002 ; CNN, 4/17/2009]
Ten Techniques of Authorized Torture - Bybee explains the 10 techniques that can be used on Zubaida:
Attention grasp: “The attention grasp consists of grasping the individual with both hands, one hand on each side of the collar opening, in a controlled and quick motion. In the same motion as the grasp, the individual is drawn toward the interrogator.”
Walling: “For walling, a flexible false wall will be constructed. The individual is placed with his heels touching the wall. The interrogator pulls the individual forward and then quickly and firmly pushes the individual into the wall. It is the individual’s shoulder blades that hit the wall. During this motion, the head and neck are supported with a rolled hood or towel that provides a c-collar effect to help prevent whiplash. To further reduce the probability of injury, the individual is allowed to rebound from the flexible wall. You have orally informed us that the false wall is in part constructed to create a loud sound when the individual hits it, which will further shock or surprise in the individual. In part, the idea is to create a sound that will make the impact seem far worse than it is and that will be far worse than any injury that might result from the action.”
Facial hold: “The facial hold is used to hold the head immobile. One open palm is placed on either side of the individual’s face. The fingertips are kept well away from the individual’s eyes.”
Facial slap (insult slap): “With the facial slap or insult slap, the interrogator slaps the individual’s face with fingers slightly spread. The hand makes contact with the area directly between the tip of the individual’s chin and the bottom of the corresponding earlobe. The interrogator invades the individual’s personal space. The goal of the facial slap is not to inflict physical pain that is severe or lasting. Instead, the purpose of the facial slap is to induce shock, surprise, and/or humiliation.”
Cramped confinement: “Cramped confmement involves the placement of the individual in a confined space, the dimensions of which restrict the individual’s movement. The confined space is usually dark. The duration of confinement varies based upon the size of the container. For the larger confined space, the individual can stand up or sit down; the smaller space is large enough for the subject to sit down. Confinement in the larger space can last up to 18 hours; for the smaller space, confinement lasts for no more than two hours.”
Wall standing: “Wall standing is used to induce muscle fatigue. The individual stands about four to five feet from a wall with his feet spread approximately to shoulder width. His arms are stretched out in front of him, with his fingers resting on the wall. His fingers support all of his body weight. The individual is not permitted to move or reposition his hands or feet.”
Stress positions: “A variety of stress positions may be used. You have informed us that these positions are not designed to produce the pain associated with contortions or twisting of the body. Rather, somewhat like walling, they are designed to produce the physical discomfort associated with muscle fatigue. Two particular stress positions are likely to be used on [Zubaida]: (1) sitting on the floor with legs extended straight out in front of him with his arms raised above his head; and (2) kneeling on the floor while leaning back at a 45 degree angle. You have also orally informed us that through observing Zubaydah in captivity, you have noted that he appears to be quite flexible despite his wound.”
Sleep deprivation: “You have indicated that your purpose in using this technique is to reduce the individual’s ability to think on his feet and, through the discomfort associated with lack of sleep, to motivate him to cooperate. The effect of such sleep deprivation will generally remit after one or two nights of uninterrupted sleep. You have informed us that your research has revealed that, in rare instances, some individuals who are already predisposed to psychological problems may experience abnormal reactions to sleep deprivation. Even in those cases, however, reactions abate after the individual is permitted to sleep. Moreover, personnel with medical training are available to and will intervene in the unlikely event of an abnormal reaction. You have orally informed us that you would not deprive [Zubaida] of sleep for more than 11 days at a time and that you have previously kept him awake for 72 hours, from which no mental or physical harm resulted.”
Insect confinement: “You would like to place [Zubaida] in a cramped confinement box with an insect. You have informed us he has a fear of insects. In particular, you would like to tell Zubaydah that you intend to place a stinging insect into the box with him. You would, however, place a harmless insect in the box. You have orally informed us that you would in fact place a caterpillar in the box. [REDACTED]”
Waterboarding: “Finally, you would like to use a technique called the “water-board.” In this procedure, the individual is bound securely on an inclined bench, which is approximately four feet by seven feet. The individual’s feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, air now is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This causes an increase in carbon dioxide level in the individual’s blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of ‘suffocation and incipient panic,’ i.e.,the perception of drowning. The individual does not breathe any water into his lungs. During those 20 to 40 seconds, water is continuously applied from a beight of 12 to 24 inches. After this period, the cloth is lifted, and the individual is allowed to breathe unimpeded for three or four full breaths. The sensation of drowning is immediately relieved by the removal of the cloth. The procedure may then be repeated. The water is usually applied from a canteen cup or small watering can with a spout. You have orally informed us that this procedure triggers an automatic physiological sensation of drowning that the individual cannot control even though he may be aware that he is in fact not drowning. You have also orally infomed us that it is likely that this procedure would not last more than 20 minutes in any one application.… You have informed us that this procedure does not inflict actual physical harm.… The waterboard, which inflicts no pain or actual harm whatsoever, does not, in our view, inflict ‘severe pain and suffering.’”
Techniques Can Be Used in Conjunction with One Another - Bybee writes: “You have informed us that the use of these techniques would be on an as-needed basis and that not all of these techniques will necessarily be used. The interrogation team would use these techniques in some combination to convince [Zubaida] that the only way he can influence his surrounding environment is through cooperation. You have, however, informed us that you expect these techniques to be used in some sort of escalating fashion, culminating with the waterboard, though not necessarily ending with this technique. Moreover, you have also orally informed us that although some of these teclmiques may be used with more than once, that repetition wllI not be substantial because the techniques generally lose their effectiveness after several repetitions.” [Office of Legal Counsel, 8/1/2002 ; American Civil Liberties Union [PDF], 1/28/2009 ; Senate Intelligence Committee, 4/22/2009 ]
Factual Background for Analysis - The opinion also gives the factual background for the legal analysis, including CIA research findings on the proposed techniques and their possible effect on Zubaida’s mental health. Much of those findings uses as a touchstone the results gleaned from the military’s SERE training, which uses stressful interrogation techniques, including a form of waterboarding, against US soldiers as part of their counterterrorism training. As the Senate Intelligence Committee will later write, Bybee’s “opinion discussed inquiries and statistics relating to possible adverse psychological reactions to SERE training.” The law clearly prohibits an interrogation method “specifically intended” to inflict “severe physical or mental pain or suffering.”
No Technique Constitutes Torture, Bybee Concludes - Bybee’s opinion considers whether each of the proposed interrogation techniques, individually or in combination, might inflict “severe physical pain or suffering” or “severe mental pain or suffering” on Zubaida or other detainees. The opinion also considers whether interrogators using the technique would have the mental state necessary to violate the statute. Bybee concludes that none of the techniques used individually would inflict “severe physical pain or suffering.” Waterboarding would not inflict such harm, Bybee writes, because it inflicts neither physical damage or physical pain. Nor would it inflict extensive “physical suffering,” because the “suffering” would not extend for the period of time required by the legal definition of the term. None of the techniques, including waterboarding, would inflict “severe mental pain or suffering” as defined in the federal statute, Bybee writes. He bases this conclusion on reports from SERE training, where US soldiers are subjected to brief, strictly supervised sessions of waterboarding as part of their anti-torture training. And, Bybee writes, since the techniques individually do not constitute physical suffering, neither will they constitute such suffering in conbination, because they will not be combined in such a way as to reach that threshold. Bybee writes that the OLC lacks the information necessary to conclude whether combinations of those techniques would inflict severe mental suffering; however, because no evidence exists to suggest that a combination of the techniques would inflict an excessive level of mental harm, using the techniques in combination is not precluded. Bybee also concludes that any interrogator using these techniques would not have a specific intent to inflict severe mental or physical pain or suffering, because the circumstances surrounding the use of the techniques would preclude such intent. Therefore, Bybee concludes, none of these techniques violate the federal anti-torture statute. [American Civil Liberties Union [PDF], 1/28/2009 ; Senate Intelligence Committee, 4/22/2009 ]
Entity Tags: John Rizzo, Central Intelligence Agency, Bush administration (43), Office of Legal Counsel (DOJ), Jay S. Bybee, American Civil Liberties Union, John C. Yoo, US Department of Justice, Senate Intelligence Committee, Abu Zubaida, Alberto R. Gonzales
Timeline Tags: Torture of US Captives
Kevin Ryan. [Source: Health Web Summit]Kevin Ryan is sworn in as the US Attorney for the Northern District of California. A former deputy district attorney, Ryan has served as a municipal court judge in San Francisco and a California Superior Court judge. [CBS News, 2007; US Department of Justice, Office of the Inspector General, 9/29/2008; Talking Points Memo, 2011] Ryan comes in after the strong but contentious tenure of his predecessor, Robert Mueller, who left in 2001 to head the FBI. Mueller was succeeded for a year by interim US Attorney David Shapiro. Mueller came to the Northern District in 1998, after his predecessor, Michael Yamaguchi, resigned under fire for letting the office’s morale sink and the caseload dwindle. Mueller fired a dozen supervisors in his first six months on the job and pushed his staff to file more cases. His critics termed Mueller a dictator, but “Main Justice” in Washington considered him a star. He revamped the office and refurbished its reputation, and successfully prosecuted several high-profile cases. When Mueller left to join the FBI, the Justice Department wanted to find someone equally capable to replace him. Ryan is not only a respected judge, but a devoted Republican who routinely listens to Rush Limbaugh in his court chambers. Former federal prosecutor Rory Little says of Ryan: “He’s a real Boy Scout. He believes in the work.” Yamaguchi’s predecessor, Joseph Russoniello, chaired the search committee that selected Ryan for the job. Russoniello said that although Ryan lacks federal court experience, that deficiency should not hinder his ability to head the office. In 2002, he told a reporter, “What is important is the capacity to manage a lot of people who do have a deep understanding of the rules.” [SF Weekly, 10/4/2006] There are 93 US Attorneys serving in the 50 states as well as in Puerto Rico, Guam, the Virgin Islands, and the Northern Marianas. All US Attorneys are appointed by the president with the advice and consent of the Senate, and serve under the supervision of the Office of the Attorney General in the Justice Department. They are the chief law enforcement officers for their districts. They serve at the pleasure of the president and can be terminated for any reason at any time. Typically, US Attorneys serve a four-year term, though they often serve for longer unless they leave or there is a change in presidential administrations. [US Department of Justice, Office of the Inspector General, 9/29/2008]
The Sixth US Court of Appeals in Cincinnati unanimously rejects the Bush administration’s claim for blanket secrecy regarding immigration court proceedings (see September 21, 2001). In a 3-0 ruling, the court rules in Detroit Free Press v. Ashcroft that the administration’s secret deportation-hearing policy goes too far in restricting the public’s right to know what the government is doing. Selectively closing individual deportation hearings for national security reasons might be justifiable, the court rules, but the government cannot simply sequester all such hearings. Appeals court judge Damon Keith, a Carter appointee, writes: “In an area such as immigration, where the government has nearly unlimited authority… the press and the public serve as perhaps the only check on abusive government practices.… The executive branch seeks to uproot people’s lives, outside the public eye and behind a closed door. Democracies die behind closed doors. The First Amendment, through a free press, protects the people’s right to know that their government acts fairly, lawfully, and accurately in deportation proceedings. When the government begins closing doors, it selectively controls information rightly belonging to the people. Selective information is misinformation. The Framers of the First Amendment did not trust any government to separate the true from the false for us. They protected us against secret government.” Keith is well known for his widely cited ruling of 30 years before against a government program of warrantless wiretapping (see June 19, 1972). [Savage, 2007, pp. 95] Another appeals court will rule in favor of the Bush administration in a separate lawsuit on the same issue (see October 2, 2002).
As Bush administration lawyers warn that Vice President Cheney and his Pentagon allies are setting the government up for defeat in the courts with their hardline advice on interrogation techniques (see Late 2001-Early 2002, January 25, 2002, April 2002 and After, and August 1, 2002) and indefinite detentions (see After September 11, 2001 and December 2001-January 2002), one of the uneasiest of Justice Department lawyers is Solicitor General Theodore Olson. Cheney and Olson have similar views on the expansion of presidential powers, but his job in the administration is to win court cases. Olson is not sure that Cheney’s legal arguments are tenable. Olson is particularly worried about two pending cases, those of US citizens Jose Padilla (see June 10, 2002) and Yaser Esam Hamdi (see December 2001 and August 16, 2002). Both have been declared enemy combatants and denied access to lawyers. Olson warns that federal courts will not go along with that provision, but he finds himself opposed by CIA and Pentagon officials. When Olson and other lawyers propose that Padilla and Hamdi be granted lawyers, Cheney’s chief lawyer, David Addington, beats back their proposal because, says deputy White House counsel Timothy Flanigan, “that was the position of his client, the vice president.” The issue comes to a head in the West Wing office of Alberto Gonzales, the White House’s chief legal counsel. Four officials with direct knowledge of the meeting later recall the chain of events. Olson has the support of associate White House counsel Bradford Berenson, a former law clerk to Supreme Court Justice Anthony Kennedy. Berenson says that Kennedy, the Court’s swing vote, will never accept absolute presidential authority to declare a US citizen an enemy and lock him away without benefit of counsel. Another former Kennedy law clerk, White House lawyer Brett Kavanaugh, had made the same argument earlier. Addington, representing Cheney in the meeting, accuses Berenson of surrendering presidential authority on what he calls a fool’s prophecy about the Court; Berenson retorts by accusing Addington of “know-nothingness.” Gonzales listens quietly as the Justice Department and his own staff line up against Addington. He finally makes a decision: in favor of Cheney and Addington. [Washington Post, 6/25/2007]
Entity Tags: US Department of Defense, Brett Kavanaugh, Bradford Berenson, Alberto R. Gonzales, Central Intelligence Agency, Theodore (“Ted”) Olson, David S. Addington, Richard (“Dick”) Cheney, US Department of Justice, Jose Padilla, Yaser Esam Hamdi, Timothy E. Flanigan
Timeline Tags: Civil Liberties
Civil rights division logo. [Source: US Department of Justice]The Bush administration embarks on a program to politicize the Justice Department’s civil rights division (CRD). The CRD is staffed by some 350 permanently employed lawyers who take complaints, investigate problems, propose lawsuits, litigate cases, and negotiate settlements. For decades, the decisions on who should fill these positions have been made by civil servants and not by political appointees. The CRD is an obvious target for politicization, and until now the Justice Department has tried to ensure that no such politicization ever took place. “There was obviously oversight from the front office [where the political appointees work], but I don’t remember a time when an individual went through that process and was not accepted,” Charles Cooper, a former lawyer in the CRD during the Reagan administration, will later recall. “I just don’t think there was any quarrel with the quality of individuals who were being hired. And we certainly weren’t placing any kind of political litmus test on… the individuals who were ultimately determined to be best qualified.”
Hiring Conservatives in Place of Career Lawyers - But Attorney General John Ashcroft changes those rules, without making any sort of official announcement. The hiring committee is not formally disbanded, but it stops having meetings scheduled, and the political appointees begin making career hiring decisions. In 2007, author and reporter Charlie Savage will write, “The result of the unprecedented change was a quiet remaking of the civil rights division, effectively turning hundreds of career jobs into politically appointed positions.” No longer would career attorneys be hired for their civil rights background; instead, lawyers from conservative law schools or from conservative legal organizations such as the Republican National Lawyers Association are given favorable treatment. Some of the new hires worked with Kenneth Starr’s Whitewater investigative team or had worked with other prominent conservatives, including former Attorney General Edwin Meese or Senator Trent Lott (R-MO). Some list themselves as belonging to prominent Christian political organizations that promote socially conservative views such as opposition to abortion and to affirmative action.
Shift towards 'Reverse Discrimination' Cases - After the new hires are in place, the division shifts its focus: instead of working on voter rights, employment discrimination, and other such cases affecting African-Americans and Hispanics, the division begins working to develop “reverse discrimination” cases in favor of whites and Christians. [Savage, 2007, pp. 295-297]
Driving Career Employees Away - Over the next few years, the types of cases pursued by the CRD changes drastically (see 2005, 2006, and 2006), and career attorneys with decades of service begin leaving the division in large numbers. The Justice Department will even encourage older hires to leave by offering them a buyout. Savage will write, “With every new vacancy, the administration gained a new change to use the new rules to hire another lawyer more in line with its political agenda.” CRD attorney David Becker will tell a 2006 NAACP hearing: “Even during other administrations that were perceived as being hostile to civil rights enforcement, career staff did not leave in numbers approaching this level. In the place of those experienced litigators and investigators, this administration has, all too often, hired inexperienced ideologues, virtually none of which have any civil rights or voting rights experience.” Some supporters say that the Bush administration is merely righting an imbalance, where the CRD was previously top-heavy with liberal lawyers interested in protecting African-Americans over other groups, but one of the CRD’s top career lawyers from 1965 through 1994, Jim Turner, says, “To say that the civil rights division had a special penchant for hiring liberal lawyers is twisting things.” [Savage, 2007, pp. 298-299]
Entity Tags: John Ashcroft, Civil Rights Division (DOJ), Charlie Savage, Charles Cooper, Bush administration (43), David Becker, Jim Turner, Trent Lott, US Department of Justice, Edwin Meese, Republican National Lawyers Association, Kenneth Starr
Timeline Tags: Civil Liberties
Several high-level Bush administration lawyers arrive in Guantanamo. The group includes White House counsel Alberto Gonzales; Vice President Cheney’s chief of staff David Addington, who had helped the Justice Department craft its “torture memo” (see August 1, 2002); CIA legal counsel John Rizzo, who had asked the Justice Department for details about how interrogation methods could be implemented (see June 22, 2004); and the Pentagon’s general counsel, William J. Haynes. They are at Guantanamo to discuss the case of suspected “20th hijacker” Mohamed al-Khatani (see August 8, 2002-January 15, 2003).
Pressure from Washington - The commander of the Guantanamo facility, Major General Michael Dunlavey, will recall: “They wanted to know what we were doing to get to this guy, and Addington was interested in how we were managing it… They brought ideas with them which had been given from sources in DC. They came down to observe and talk.” Dunlavey will say that he was pressured by Defense Secretary Donald Rumsfeld himself to expedite the interrogation and use extraordinary means to squeeze information from the suspect. “I’ve got a short fuse on this to get it up the chain,” Dunlavey recalls. “I was on a timeline. This guy may have been the key to the survival of the US.” Asked how high up the pressure was from, Dunlavey will say, “It must have been all the way to the White House.” Rumsfeld is “directly and regularly involved” in all the discussions of interrogations.
'Do Whatever Needed to Be Done' - Staff judge advocate Lieutenant Colonel Diane Beaver will recall that Addington is “definitely the guy in charge,” taking control of the discussions. Gonzales is quiet. Haynes, a close friend and colleague of Addington’s, seems most interested in how the military commissions would function to try and convict detainees. The lawyers meet with intelligence officials and themselves witness several interrogations. Beaver will recall that the message from Addington and his group is “Do whatever needed to be done.” In essence, the Guantanamo interrogators and commanders are given a green light from the administration’s top lawyers, representing President Bush, Vice President Cheney, Rumsfeld, and the CIA. [Vanity Fair, 5/2008]
Entity Tags: William J. Haynes, US Department of Justice, Mohamed al-Khatani, Michael E. Dunlavey, David S. Addington, Diane E. Beaver, Central Intelligence Agency, Alberto R. Gonzales, Bush administration (43), Richard (“Dick”) Cheney, Donald Rumsfeld, John Rizzo, George W. Bush
Timeline Tags: Torture of US Captives, Civil Liberties
The New York Times reports that the FBI is refusing to allow Abdussattar Shaikh, the FBI informant who lived with 9/11 hijackers Nawaf Alhazmi and Khalid Almihdhar in the second half of 2000 (see May 10-Mid-December 2000), to testify before the 9/11 Congressional Inquiry. The FBI claims Shaikh would have nothing interesting to say. The Justice Department also wants to learn more about him. [New York Times, 10/5/2002] The FBI also tries to prevent Shaikh’s handler Steven Butler from testifying, but Butler will end up testifying before a secret session on October 9, 2002 (see October 9, 2002). Shaikh will not testify at all. [Washington Post, 10/11/2002] Butler’s testimony will uncover many curious facts about Shaikh. [New York Times, 11/23/2002; US News and World Report, 12/1/2002; US Congress, 7/24/2003; San Diego Union-Tribune, 7/25/2003]
The Office of Legal Counsel (OLC)‘s John Yoo 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’s subject is the legality of certain communications intelligence activities. [American Civil Liberties Union [PDF], 1/28/2009 ]
At the request of FBI Director Robert Mueller, Attorney General John Ashcroft files a declaration invoking the “state secrets” privilege (see March 9, 1953) to block FBI translator Sibel Edmonds’ lawsuit against the government from being heard in court. [New York Observer, 1/22/2004] The Justice Department insists that disclosing her evidence, even at a closed hearing in court, “could reasonably be expected to cause serious damage to the foreign policy and national security of the United States.” The “state secrets privilege,” derived from English common law, has never been the subject of any congressional vote or statute. Normally, the privilege is used to block the discovery of a specific piece of evidence that could put the nation’s security at risk. But Ashcroft’s declaration asserts that the very subject of her lawsuit constitutes a state secret, thus barring her from even presenting her case in court. The text of Ashcroft’s declaration is classified. [Vanity Fair, 9/2005] The Justice Department’s Director of Public Affairs, Barbara Comstock, says in a press release: “To prevent disclosure of certain classified and sensitive national security information, Attorney General Ashcroft today asserted the state secrets privilege.… The state secrets privilege is well established in federal law… and allows the Executive Branch to safeguard vital information regarding the nation’s security or diplomatic relations. In the past, this privilege has been applied many times to protect our nation’s secrets from disclosure, and to require dismissal of cases when other litigation mechanisms would be inadequate. It is an absolute privilege that renders the information unavailable in litigation.” [US Department of Justice, 10/18/2002; Siegel, 2008, pp. 201]
The Justice Department provides limited information to the House Judiciary Committee about actions performed under the new Patriot Act (see October 26, 2001). Representative James Sensenbrenner (R-WI) had demanded answers to 50 questions regarding the Patriot Act from Attorney General John Ashcroft, or else he would “start blowing a fuse.” Among other things, Sensenbrenner wanted to know how many times the Justice Department had implemented wiretaps under the act, and threatened Congressional subpoenas and opposition to the act when it comes up for renewal. Sensenbrenner and the Judiciary Committee receive far less than originally requested, with the Justice Department asserting that much of the information is classified and cannot be revealed. Sensenbrenner declares himself satisfied. [Savage, 2007, pp. 114-115]
Shortly after the October 11, 2002, request by Guantanamo commander Major General Michael Dunlavey for approval of new, harsh interrogation techniques, and after Guantanamo legal counsel Diane Beaver submitted her analysis justifying the use of those techniques (see October 11, 2002), General James T. “Tom” Hill forwards everything to General Richard Myers, the chairman of the Joint Chiefs of Staff. Hill includes a letter that contains the sentence, “Our respective staffs, the Office of the Secretary of Defense, and Joint Task Force 170 [the Army unit in charge of interrogating Guantanamo detainees] have been trying to identify counter-resistant techniques that we can lawfully employ.” In the letter, Hill is clearly ambivalent about the use of severe interrogation methods. He wants the opinion of senior Pentagon lawyers, and requests that “Department of Justice lawyers review the third category [the most severe] of techniques.” But none of this happens. The Joint Chiefs should have subjected the request to a detailed legal review, including scrutiny by Myers’s own counsel, Jane Dalton, but instead, Pentagon general counsel William J. Haynes short-circuits the approval process. Navy General Counsel Alberto Mora recalls Dalton telling him: “Jim pulled this away. We never had a chance to complete the assessment.” Myers later recalls being troubled that the normal procedures had been circumvented. Looking at the “Haynes Memo,” Myers will point out, “You don’t see my initials on this.” He notes that he “discussed it,” but never signed off on it. “This was not the way this should have come about.” Myers will come to believe that there was “intrigue” going on “that I wasn’t aware of, and Jane wasn’t aware of, that was probably occurring between [William J.] Haynes, White House general counsel [Alberto Gonzales], and Justice.” Instead of going through the proper channels, the memo goes straight to Haynes, who merely signs off with a note that says, “Good to go.” [Vanity Fair, 5/2008]
Entity Tags: Joint Chiefs of Staff, US Department of Justice, Diane E. Beaver, Alberto R. Gonzales, Alberto Mora, James T. Hill, Jane Dalton, Richard B. Myers, Michael E. Dunlavey, William J. Haynes
Timeline Tags: Torture of US Captives, Civil Liberties
Carol Lam. [Source: Common Dreams (,org)]Carol Lam is sworn in as the US Attorney for the Southern District of California. [Talking Points Memo, 2011] Lam is a former Assistant US Attorney, a former California Superior Court judge, and an acknowledged expert on white-collar crime and health care fraud. During her interview process for the US Attorney position, she described herself as “non-partisan,” and said she does not belong to any political party. When asked if she could support the Justice Department’s policies considering that she is not a Republican, she answered that “it is a responsibility of a US Attorney to effect the attorney general’s guidelines in a way that makes sense in the district.” White House Counsel Kyle Sampson (see 2001-2003) offered Lam the job, at which time she told him that he had not “made things easy by virtue of the fact that I was a non-partisan.” Lam’s ascension to her post was delayed by political infighting between powerful Republicans and Democrats. It is the first time in five years her district has had a presidentially appointed, Senate-confirmed US Attorney. There are 93 US Attorneys serving in the 50 states as well as in Puerto Rico, Guam, the Virgin Islands, and the Northern Marianas. All US Attorneys are appointed by the president with the advice and consent of the Senate, and serve under the supervision of the Office of the Attorney General in the Justice Department. They are the chief law enforcement officers for their districts. They serve at the pleasure of the president, and can be terminated for any reason at any time. Typically, US Attorneys serve a four-year term, though they often serve for longer unless they leave or there is a change in presidential administrations. [Iglesias and Seay, 5/2008, pp. 124; US Department of Justice, Office of the Inspector General, 9/29/2008]
The Foreign Intelligence Surveillance Court of Review, in its first-ever ruling, overturns a ruling by the Foreign Intelligence Surveillance Court (see May 17, 2002) that stopped the Justice Department from being granted sweeping new powers to conduct domestic surveillance on US citizens. [American Civil Liberties Union, 11/18/2002; FindLaw, 11/18/2002 ]
'Rubber Stamp' - The ACLU’s Ann Beeson says of the ruling, “We are deeply disappointed with the decision, which suggests that this special court exists only to rubberstamp government applications for intrusive surveillance warrants. “As of today, the Attorney General can suspend the ordinary requirements of the Fourth Amendment in order to listen in on phone calls, read e-mails, and conduct secret searches of Americans’ homes and offices.” The ACLU and other civil liberties organizations filed a friend-of-the-court brief asking that the original ruling stand. The ACLU and its partners are considering appealing the decision to the Supreme Court, as well as asking Congress to legislate tighter restrictions on the Justice Department’s ability to conduct domestic surveillance. Beeson notes that appealing the FISA Review Court’s decision might be impossible: “This is a major Constitutional decision that will affect every American’s privacy rights, yet there is no way anyone but the government can automatically appeal this ruling to the Supreme Court. Hearing a one-sided argument and doing so in secret goes against the traditions of fairness and open government that have been the hallmark of our democracy.” The FISC Review Court is a special three-judge panel appointed by Chief Justice William Rehnquist in accordance with provisions of the Foreign Intelligence Surveillance Act. The judges include appellate court justices Laurence Silberman, Edward Leavy, and Ralph Guy, Jr. [American Civil Liberties Union, 11/18/2002]
Law Professor Slams Ruling - Law professor Raneta Lawson Mack is highly critical of the ruling. Mack writes that the court twisted its reasoning upon itself in order to give the Justice Department what it asked for. It misrepresented the facts and legal arguments of the case. It gratuitously insulted the ACLU and other “friends of the court” in its ruling. It wrote that the entire FISA law is constitutional even though its standards conflict with the Fourth Amendment. To justify its ruling from a legislative standpoint, the Review Court cherrypicked statements by legislators that supported the Justice Department’s stance while ignoring those from other viewpoints. It called the Bush administration’s efforts to challenge the “firewall” between law enforcement and foreign intelligence as “heroic,” even though the Justice Department, Congress, and FISA itself recognizes and accepts the dichotomy. It accepted without question or evidence the government’s contention that false, misleading, or inaccurate FBI affidavits in numerous FISA applications were a result of “confusion within the Justice Department over implementation” of the firewall procedures that the Justice Department itself drafted and implemented. Mack writes that the court failed entirely to grapple with one key question that, if considered, would, in her opinion, “easily have laid bare the Executive Branch’s thinly-veiled quest for unconstrained authority to invade the privacy of US citizens with minimal oversight.” The question is, “why would the government need to alter procedures for obtaining FISA warrants when the lower FISA court had never rejected an application? Indeed, according to the lower FISA court opinion the court had ‘reviewed and approved several thousand FISA applications, including many hundreds of surveillances and searches of US persons [and had] long accepted and approved minimization procedures authorizing in-depth information sharing and coordination with criminal prosecutors.’” The lower court ruling provided for coordination and sharing of information between law enforcement and government agencies, Mack notes, and writes that in light of that finding, “can the government seriously contend that the minimization procedures that it drafted in 1995, which the lower FISA court dutifully adopted, were too restrictive, warranting a still more lenient approach?” Mack considers the ruling to be “legally unsound.” She is appalled by the Review Court’s groundless implication that FISA hindered the ability of the FBI to anticipate and perhaps prevent the 9/11 attacks. “What the lower FISA court recognized and, indeed, what all Americans should legitimately fear is that the Executive branch is disingenuously using its September 11th failures in conjunction with the hastily drafted and poorly crafted Patriot Act to ‘give the government a powerful engine for the collection of foreign intelligence information targeting US persons.’ By adhering to the minimization procedures, the lower FISA court merely sought to assure that the balance between legitimate national security concerns and individual privacy was not disturbed by seemingly unconstrained executive power.… [T]here is… no question that a secret FISA appellate court structure, with judges hand selected by the Chief Justice of the US Supreme Court, that hears only the government’s evidence, and grants only the government a right to appeal is a singularly inappropriate forum to resolve issues that threaten the fundamental rights and values of all US citizens. The only question that remains is how much further our justice system will be derailed in pursuit of the war on terrorism.” [Jurist, 11/26/2002]
Entity Tags: Ralph Guy, Jr., Raneta Lawson Mack, William Rehnquist, US Department of Justice, Open Society Institute, US Supreme Court, Laurence Silberman, Foreign Intelligence Surveillance Court, Center for National Security Studies, American Civil Liberties Union, Center for Democracy and Technology, Foreign Intelligence Surveillance Court of Review, Ann Beeson, Electronic Frontier Foundation, Edward Leavy, Electronic Privacy Information Center
Timeline Tags: Civil Liberties
Nabil al-Marabh is serving an eight-month prison sentence for illegally entering the US. A Jordanian in prison with al-Marabh earlier in 2002 informs against him, claiming that al-Marabh tells him many details of his terrorism ties. The informant, who shows “a highly detailed knowledge of his former cell-mate’s associations and movements” [Globe and Mail, 6/4/2004] , claims that al-Marabh:
admitted he sent money to a former roommate, Raed Hijazi, who is later convicted of trying to blow up a hotel in Jordan (see November 30, 1999), and that he aided Hijazi’s flight from authorities. [Associated Press, 6/3/2004]
planned to die a martyr by stealing a gasoline truck, driving it into either the Lincoln or Holland tunnels in New York City, turning it sideways, opening its fuel valves and having an al-Qaeda operative shoot a flare to ignite a massive explosion. The plan was cancelled when Hijazi was arrested in Jordan in October 2000. [Toronto Sun, 10/16/2001; Associated Press, 6/3/2004]
trained on rifles and rocket-propelled grenades at militant camps in Afghanistan. [Associated Press, 6/3/2004]
boasted about getting drunk with two 9/11 hijackers. [Globe and Mail, 6/4/2004]
asked his uncle to hide an important data CD from Canadian police. [Globe and Mail, 6/4/2004]
claimed he took instructions from a mysterious figure in Chicago known as “al Mosul” which means “boss” in Arabic. [Associated Press, 6/3/2004]
acknowledged he distributed as much as $200,000 a month to training camps in Afghanistan in the early 1990s. [Associated Press, 6/3/2004] FBI agents are able to confirm portions of the informant’s claims. US Attorney Patrick Fitzgerald, after being denied permission to indict al-Marabh, uses the informant’s information to press again for an indictment. But the Justice Department continues to refuse to allow an indictment, and al-Marabh will eventually be deported to Syria (see January-2002-December 2002). [Associated Press, 6/3/2004]
Barbara Grewe. [Source: Barbara Grewe]Barbara Grewe, a key investigator on the Justice Department inspector general’s investigation of the FBI’s failures before 9/11, moves to the 9/11 Commission. [University of Michigan Law School, 3/7/2005] She was recommended to the Commission by a former colleague who worked at the office of inspector general at the Justice Department. [University Record Online, 3/14/2005] As special investigative counsel at the Justice Department’s office of the inspector general between July and December 2002 she had investigated and reported on the FBI’s handling of intelligence prior to 9/11, and directed part of the investigation into information sharing between the FBI and CIA, missed opportunities to locate the hijackers before 9/11, and earlier warnings about terrorists using airplanes as weapons. This is similar to the work she does on the 9/11 Commission. According to a press release for a lecture she will give in 2005, Grewe also “drafted and edited” the “relevant sections” of the Justice Department’s final report. [University of Michigan Law School, 3/7/2005; Center for American Progress Action Fund, 4/16/2008] However, it is unclear how she could have done this, as she left the Justice Department’s investigation in 2003. Although December 2002 is early on in the Justice Department inspector general’s probe, the following important interviews have been conducted by this time:
Tom Wilshire, a CIA officer later detailed to the FBI who was involved in many pre-9/11 intelligence failures (see 9:30 a.m. - 4:00 p.m. January 5, 2000, March 5, 2000, May 15, 2001, Mid-May 2001, Late May, 2001, July 23, 2001, August 22, 2001, and August 24, 2001); [9/11 Commission, 7/24/2004, pp. 502]
“Michael,” a female CIA officer who had blocked notification to the FBI saying that one of the hijackers, Khalid Almihdhar, had a US visa (see Around 7:00 p.m. January 5, 2000 and January 6, 2000); [9/11 Commission, 7/24/2004, pp. 502]
Dina Corsi, an FBI official who withheld intelligence information from criminal investigators in the summer of 2001 (see June 12-September 11, 2001, Before August 22, 2001, August 27-28, 2001, August 28, 2001, and August 28-29, 2001); [9/11 Commission, 7/24/2004, pp. 474]
Clark Shannon, a CIA officer who withheld information about Almihdhar from the FBI (see June 11, 2001); [9/11 Commission, 7/24/2004, pp. 537]
Margaret Gillespie, an FBI agent detailed to the FBI involved in information sharing problems (see (Late May-Early June) and August 21-22, 2001); [9/11 Commission, 7/24/2004, pp. 538]
Robert Fuller, an FBI agent who searched for Almihdhar in the US just before the 9/11 attacks, but failed to find him (see September 4, 2001, September 4-5, 2001, and September 4-5, 2001); [9/11 Commission, 7/24/2004, pp. 539]
Russell Fincher and Steve Bongardt, FBI agents from whom the CIA withheld information (see June 11, 2001, June 12-September 11, 2001, and August 29, 2001); [9/11 Commission, 7/24/2004, pp. 537]
Sherry Sabol, an attorney involved in errors in the Moussaoui and Almihdhar cases (see August 22-28, 2001 and August 28-29, 2001); [9/11 Commission, 7/24/2004, pp. 538]
An FBI official who handled an al-Qaeda informer in Pakistan (see January 4, 2001); [9/11 Commission, 7/24/2004, pp. 537]
Harry Samit (see August 15-20, 2001), Greg Jones (see August 27, 2001), John Weess (see August 16, 2001), and Coleen Rowley (see May 21, 2002), FBI officials who worked on the Moussaoui case; [9/11 Commission, 7/24/2004, pp. 531, 540]
Rodney Middleton, acting head of the FBI’s bin Laden unit before 9/11 (see July 27, 2001 and after); and [9/11 Commission, 7/24/2004, pp. 538]
Jennifer Maitner, an FBI official involved in the Phoenix memo and President Bush’s August 6 presidential daily briefing (see July 10, 2001, July 27, 2001 and after, and (August 4-5, 2001)). [9/11 Commission, 7/24/2004, pp. 536]
A federal judge in New York rules that Jose Padilla, a US citizen who has been accused of being an al-Qaeda “dirty bomber,” has the right to meet with a lawyer (see June 10, 2002; June 9, 2002). Judge Michael Mukasey agrees with the government that Padilla can be held indefinitely as an “enemy combatant” even though he is a US citizen. But he says such enemy combatants can meet with a lawyer to contest their status. However, the ruling makes it very difficult to overturn such a status. The government only need show that “some evidence” supports its claims. [Washington Post, 12/5/2002; Washington Post, 12/11/2002] In Padilla’s case, many of the allegations against him given to the judge, such as Padilla taking his orders from al-Qaeda leader Abu Zubaida, have been widely dismissed in the media. [Washington Post, 9/1/2002] As The Guardian puts it, Padilla “appears to be little more than a disoriented thug with grandiose ideas.” [Guardian, 10/10/2002] After the ruling, Vice President Cheney sends Deputy Solicitor General Paul Clement to see Mukasey on what Justice Department lawyers call “a suicide mission.” Clement, speaking for Cheney, tells Mukasey that he has erred so grossly that he needs to immediately retract his decision. Mukasey rejects the government’s “pinched legalism” and adds that his order is “not a suggestion or request.” [Washington Post, 6/25/2007] The government continues to challenge this ruling, and Padilla will continue to be denied access to a lawyer (see March 11, 2003).
District Court Judge John Bates rules against the General Accounting Office (GAO), the investigative arm of Congress, in its attempt to force Vice President Cheney to disclose some of his Energy Task Force documents (see January 29, 2001 and May 16, 2001). The judge writes, “This case, in which neither a House of Congress nor any congressional committee has issued a subpoena for the disputed information or authorized this suit, is not the setting for such unprecedented judicial action.” [Associated Press, 12/9/2002] Bates is a Republican who worked as the deputy independent counsel to Kenneth Starr in the Whitewater investigation, and was appointed to the bench by President Bush in 2001. [Savage, 2007, pp. 112] The GAO later declines to appeal the ruling (see February 7, 2003). In a similar suit being filed by Judicial Watch and the Sierra Club, the Bush administration has successfully delayed deadlines forcing these documents to be turned over. [Associated Press, 12/6/2002] That case will eventually be decided in the administration’s favor (see May 10, 2005).
Cheney Pushes Back - Unfortunately, the ruling’s claim of no Congressional involvement is somewhat misleading. The original request for information came from two ranking House members, Henry Waxman (D-CA) of the Committee on Government Reform and John Conyers (D-MI) of the Energy and Commerce Committee (see April 19 - May 4, 2001). Waxman and Conyers followed standard procedure by writing to David Walker, head of the GAO, to request information about who was meeting with the task force and what the task force was doing (May 8, 2001. Instead of complying with the request, Cheney’s legal counsel, David Addington, replied that the task force was not subject to the Federal Advisory Committee Act, and therefore not bound by law to provide such information (see May 16 - 17, 2001). Addington later challenged the GAO’s authority, saying that it was trying “to intrude into the heart of Executive deliberations, including deliberations among the President, the Vice President, members of the President’s Cabinet, and the President’s immediate assistants, which the law protects to ensure the candor in Executive deliberation necessary to effective government.” The GAO was not asking for such information; former Nixon White House counsel John Dean will write in 2004, “It was clear [Addington] was looking to pick a fight.”
Tug of War - The GAO advised Addington that it did indeed have the legal power to examine the deliberations of such entities as the task force, and provided Addington both the statutory law and the legislative history, which flatly contradicted Addington’s refusal. The GAO also noted that it was “not inquiring into the deliberative process but [was] focused on gathering factual information regarding the process of developing President Bush’s National Energy Policy.” The GAO even narrowed the scope of its original request, asking only for the names of those who had worked with the task force, and the dates (see July 31, 2001). But this provoked further resistance from Cheney and his office, with Cheney publicly stating on numerous occasions that the GAO was unlawfully trying to intrude into the deliberative process. Walker’s patience ran out in January 2002, and he notified the White House and Congress that the GAO was taking the administration to court (see February 22, 2002).
Hardball in Federal Court - Usually the case will be handled by lawyers from the Justice Department’s Civil Division. But this case is much more important to the White House to be left to the usual group of attorneys. Instead, this lawsuit is one of the very few to be handled by a special unit operating under the direct supervision of Deputy Solicitor General Paul Clement and Clement’s boss, Solicitor General Theodore Olson. Olson, the lawyer who spearheaded the team that successfully argued the December 2000 Bush v. Gore case that awarded George W. Bush the presidency. Dean later learns that this special team was created specifically to find and handle cases that they can take to the Supreme Court in order to rewrite existing law, mostly laws that restrict the power of the presidency (see January 21, 2001). Many career attorneys at the Justice Department will become so offended by the existence and the agenda of this special legal team that they will resign their positions. The administraton sent a strong signal to Judge Bates when it sent Olson, who has argued many times before the Supreme Court, to argue the government’s case in his court. Dean will write that Bates, a recent Bush appointee and a veteran of the Whitewater investigation, “got the message.” He knows this case is slated to go to the Supreme Court if it doesn’t go the way the White House wants.
Standing the Law On Its Head - According to Dean, Bates turns the entire body of statutory law overseeing the GAO and its powers to compel information from the executive branch on its head. He rules that the GAO lacks the “standing to sue,” saying that it doesn’t have enough of a legal stake in the controversy to have a role in trying to compel information. Bates, flying in the face of over eight decades of law and precedent, rules that, in essence, the GAO is merely an agent of Congress, and because neither the GAO nor Walker had suffered injury because of the task force’s refusal to comply with its request, the GAO has no legal recourse against the executive branch. Bates hangs much of his ruling on the fact that Congress has not yet subpoenaed the White House for the task force information. Thusly, Bates guts the entire structure of enforcement authority the GAO has as part of its statutory mandate. Bates does not go as far as the Justice Department wants, by not specifically ruling that the entire GAO statute is unconstitutional, but otherwise Bates’s ruling is a complete victory for the White House. [Dean, 2004, pp. 76-80] Authors Lou Dubose and Jake Bernstein later write that “Bates’s ruling creates a legislative Catch-22 for Democrats.” Because the GOP is the majority party, and because GOP Congressional leaders refuse to subpoena the White House on virtually any issue or conflict, no such subpoenas as Bates is mandating are likely to ever be granted by Republican committee chairmen. [Dubose and Bernstein, 2006, pp. 14] In 2007, author and reporter Charlie Savage will write that Bates’s ruling severely eroded the GAO’s “ability to threaten to file a lawsuit [and] damaged the congressional watchdog’s capability to persuade executive branch agencies to comply with its requests for information.… Bates had established a principle that, if left undisturbed, could change the attitudes of executive branch officials when the GAO asked for documents they did not want to disclose.” [Savage, 2007, pp. 112-113]
Entity Tags: John Dean, Lou Dubose, Paul Clement, Sierra Club, John Conyers, US Supreme Court, US Department of Justice, Theodore (“Ted”) Olson, Richard (“Dick”) Cheney, John Bates, Judicial Watch, Henry A. Waxman, Bush administration (43), Charlie Savage, David Walker, David S. Addington, Government Accountability Office, Energy Task Force, Jake Bernstein, Federal Advisory Committee Act
Timeline Tags: US Environmental Record, Civil Liberties
The vast majority of the more than 900 people the federal government acknowledges detaining after the 9/11 attacks have been deported, released or convicted of minor crimes unrelated to terrorism. The Justice Department announces that of the 765 people detained on immigration charges after 9/11, only six are still in US custody (see November 5, 2001; July 3, 2002). Almost 500 of them were released to their home countries; the remainder are still in the US. 134 others were arrested on criminal charges and 99 were convicted. Another group of more than 300 were taken into custody by state and local law enforcement and so statistics are unknown about them. Additionally, more were arrested on material witness warrants, but the government won’t say how many. The Washington Post has determined there are at least 44 in this category (see November 24, 2002). [Washington Post, 12/12/2002; Associated Press, 12/12/2002] Newsweek reports that of the “more than 800 people” rounded up since 9/11, “only 10 have been linked in any way to the hijackings” and “probably will turn out to be innocent.”
[Newsweek, 10/29/2001] The names of all those secretly arrested still have not been released (see August 2, 2002). None in any of the categories have been charged with any terrorist acts.
Scott Muller. [Source: New York Times]Sometime in 2003, CIA General Counsel Scott Muller raises the idea of destroying videotapes of the interrogations of al-Qaeda leaders Abu Zubaida and Abd al-Rahim al-Nashiri during discussions in 2003 with Justice Department lawyers. But the Justice Department lawyers advise against destroying them. It is unknown what the basis for their advice is. Muller similarly approaches White House Deputy Chief of Staff Harriet Miers with the idea and she also advises him against it (see Between 2003-Late 2005). [New York Times, 12/8/2007]
David Nahmias. [Source: US Department of Justice]US prosecutors in Detroit are trying four men accused of an al-Qaeda plot. The men, Abdel-Ilah Elmardoudi, Karim Koubriti, Ahmed Hannan, and Farouk Ali-Haimoud, were arrested shortly after 9/11. They had been living in a Detroit apartment previously occupied by Nabil al-Marabh (see September 17, 2001). Yousef Hmimssa, a Moroccan national, had lived in the Detroit apartment with al-Marabh. When the FBI raided the apartment, they found fake immigration papers linking Hmimssa and al-Marabh, along with attack plans. [ABC News 7 (Chicago), 1/31/2002] Hmimssa will later be the key witness in the trial against the four arrested Detroit men (see June 2003-August 2004). The FBI later identify three other witnesses—a landlord, a Jordanian informant, and a prison inmate—who linked the four arrested men to al-Marabh (see December 2002). The Detroit prosecutors want to charge al-Marabh as a fifth defendant. However, Deputy Assistant Attorney General David Nahmias prevents them from doing so. He says, “My understanding is that the only connection between al-Marabh and your case was an apparent misidentification by a landlord.” Additionally, memos written by Detroit prosecutors during the trial will later show that they believed the Justice Department was preventing them from introducing some of their most dramatic evidence in the trial. Lead Detroit prosecutor Richard Convertino will later say: “There was a series of evidence, pieces of evidence, that we wanted to get into our trial that we were unable to do. Things that would have strengthened the case immeasurably, and made the case much stronger, exponentially.” For instance, the FBI had learned before the trial that al-Qaeda leader Ibn al-Shaykh al-Libi told US interrogators after his capture that bin Laden had authorized an attack on the US air base in Incirlik, Turkey. The FBI also found sketches in the Detroit apartment of what they believed was the same base. The prosecutors wanted to link this evidence to testimony by the al-Libi, but he was handed over to Egypt to be tortured and prosecutors were not able to interview him or use him as a witness (see January 2002 and After). Turkish authorities will later claim that their own evidence indicates bin Laden did authorize an attack on the base at one point. Detroit prosecutors also later complain that the lone Justice Department lawyer sent to help with the case had no intention of helping with the trial, and spent most of his time in Detroit staying in his hotel room or playing basketball. [Associated Press, 8/9/2004] In 2002, Chicago prosecutor Patrick Fitzgerald is also prohibited from charging al-Marabh with any crime (see January-2002-December 2002).
Entity Tags: US Department of Justice, Richard Convertino, Yousef Hmimssa, Nabil al-Marabh, Ibn al-Shaykh al-Libi, David Nahmias, Abel-Ilah Elmardoudi, Ahmed Hannan, Karim Koubriti, Federal Bureau of Investigation, Farouk Ali-Haimoud
Timeline Tags: Complete 911 Timeline
Michael Ashcroft. [Source: Conservative Home Blogs.com]Former Drug Enforcement Administration analyst Jonathan Randel is sentenced to a year in prison on felony theft charges surrounding his passing of DEA information to Toby Follett, a London Times investigative reporter. Randel’s prosecution is unusual because he passed unclassified information to the reporter, and none of his actions threatened national security. The prosecutor of Randel’s case says flatly that Randel was taken to court to discourage other government employees from cooperating with the press. Additionally, there is wide speculation that Randel’s prosecution may have something to do with the target of Follett’s investigation, Lord Michael Ashcroft. Ashcroft (no relation to Attorney General John Ashcroft) was under investigation by the DEA because of his ownership of a bank in Belize that was a known outlet for laundered drug money. Randel provided Follett with information that was not classified, but was categorized as “sensitive.” Times editor Robert Thomson says that Randel’s prosecution is distressing because “[c]onfidential information is passed to journalists every day.” However, Justice Department prosecutor William Duffey, a former deputy independent counsel under Whitewater independent counsel Kenneth Starr, says that Randel’s prosecution was designed to warn other government workers of the dangers of cooperating with the media.
'Particularly Alarming' - Lucy Dalglish, head of the Reporters Committee for Freedom of the Press, says, “What is particularly alarming is that this is not classified information and is probably disclosable under the Freedom of Information Act. This is the kind of thing that journalists ask for every day.” She says that other, similar actions by other public employees have been addressed with reprimands and letters in their personnel files. “But jail?” she asks. Former Nixon White House counsel John Dean writes in 2004, “Clearly this was a warning aimed at potential whistleblowers in the federal bureaucracy, advising them to keep quiet, or risk jail.” [New York Times, 1/16/2003; Dean, 2004, pp. 67-69]
No Precedent - Neither Duffey nor anyone in the DEA can cite any other cases where the government has prosecuted an employee for leaking confidential but unclassified information. Lawyer Kevin Goldberg, legal counsel for the American Society of Newspaper Editors, says that such a prosecution is rare in the extreme. If such a broad standard were applied to other whistleblowers, then charges could well be brought against FBI agent Coleen Rowley, whose revelations of FBI mismanagement and obduracy before the 9/11 attacks earned her a citation as one of Time Magazine’s “Persons of the Year.” Journalism professor Catherine Manegold calls Randel’s prosecution “not too different from McCarthyism.… If we are confined to official, pre-vetted statements, that’s a terribly dangerous place to be.” [Fulton County Daily Report, 1/15/2003]
Protecting Lord Ashcroft - Dean will say that the Justice Department’s prosecution of Randel was extraordinary, writing that the Department “threw the book at him.” It filed a twenty-count indictment against Randel, including 16 separate charges for each time Randel used a DEA computer to locate information on Ashcroft, and characterizing each computer usage as a separate scheme to “defraud” the US government. If convicted of all charges and given the maximum possible sentence, Randel would have faced up to 580 years in prison—a prime reason, Dean believes, that Randel accepted a plea bargain to a single charge of felony theft. According to Dean, Randel strongly believes that the Justice Department prosecuted him to protect Ashcroft, a wealthy Conservative lord living in the United States. [Dean, 2004, pp. 67-69] According to his attorney, Steven Sadow, Randel thinks “Ashcroft was getting a free ride for crooked activities. That’s why he did what he did.” Ashcroft has filed a lawsuit for defamation of character against the Times over its charges that he was involved in drug trafficking and money laundering; the Times’s owner, Rupert Murdoch, settled the case by printing a front-page apology to Ashcroft (see December 8, 1999). [Fulton County Daily Report, 1/15/2003] Ashcroft is also being probed over his potentially illegal dealings with the US toy manufacturer Tyco, and is suspected of participating in racketeering, securities fraud, tax fraud, and/or falsification of records. [Dean, 2004, pp. 67-69]
Entity Tags: Robert Thomson, William Duffey, US Department of Justice, Steven Sadow, Reporters Committee for Freedom of the Press, Lucy Dalglish, London Times, American Society of Newspaper Editors, Catherine Manegold, Michael Ashcroft, Drug Enforcement Administration, Jonathan Randel, Kevin Goldberg, John Dean, Toby Follett
Timeline Tags: Civil Liberties
The Navy’s general counsel, Alberto Mora, is angered at the lack of response to his attempts to persuade the Pentagon to stop abusing prisoners at Guantanamo and is particularly frustrated with the Pentagon’s general counsel, William J. Haynes (see December 20, 2002 and January 9, 2003 and After). Mora decides to take a step that he knows will antagonize Haynes, who always warns subordinates never to put anything controversial in writing or in e-mail messages. Mora delivers an unsigned draft memo of his objections to Haynes, and tells him that he intends to “sign it out” that afternoon—thereby making it an official document—unless the harsh interrogation techniques at Guantanamo stop. Mora’s memo describes the interrogations at Guantanamo as “at a minimum cruel and unusual treatment, and, at worst, torture.”
'Working Group to Be Created - Haynes calls Mora later that day with good news: Defense Secretary Donald Rumsfeld is suspending his authorization of the disputed interrogation techniques (see December 2, 2002) and is appointing a “working group” of lawyers from all branches of the armed forces to develop new interrogation guidelines. Mora will be a part of that working group. An elated Mora begins working with the group of lawyers to discuss the constitutionality and effectiveness of various interrogation techniques. In 2006, he will say that he felt “no one would ever learn about the best thing I’d ever done in my life.”
Mora Outmaneuvered - But Haynes has outmaneuvered Mora. A week later, Mora sees a lengthy classified document that negates every argument he has made. Haynes has already solicited a second, overarching opinion from John Yoo, a lawyer at the Justice Department’s Office of Legal Counsel, that supersedes Mora’s working group (see January 9, 2002). Mora is astonished (see January 23-Late January, 2003). He will later learn that the working group’s report will be forced to comply with Yoo’s legal reasoning. In fact, the group’s final report is never completed—though the draft report, which follows Yoo’s memo, is signed by Rumsfeld without Mora’s knowledge. [New Yorker, 2/27/2006] Mora later says that while Yoo’s memo displays a “seeming sophistication,” it is “profoundly in error,” contradicting both domestic law and international treaties. Mora and the other “dissident” members of the working group are led to believe that the report has been abandoned. [Savage, 2007, pp. 181] He will learn about Rumsfeld’s signature on the draft report while watching C-SPAN in mid-2004. [New Yorker, 2/27/2006; Savage, 2007, pp. 189]
The Navy’s general counsel, Alberto Mora, is shocked when he reads a legal opinion drafted by John Yoo, of the Justice Department’s Office of Legal Counsel, about techniques that can be used in prisoner interrogations (see January 9, 2002). Mora has been fighting the use of questionable techniques and was part of a working group that was reviewing them (see January 15-22, 2003). The opinion was sought by Pentagon general counsel William J. Haynes and not only counters every legal and moral argument Mora has brought to bear, but supersedes the working group. Only one copy of the opinion exists, kept in the office of the Air Force’s general counsel, Mary Walker, the head of the working group.
'Catastrophically Poor Legal Reasoning' - Mora reads it in Walker’s office with mounting horror. The opinion says nothing about prohibiting cruel, degrading, and inhuman treatment of detainees; in fact, it defends such tactics. While sophisticated, it displays “catastrophically poor legal reasoning,” he will later recall. Mora believes that it approaches the level of the notorious Supreme Court decision in Korematsu v. United States, the 1944 decision that upheld the government’s detention of innocent Japanese-Americans during World War II. Mora is not aware that Yoo, like Haynes, is a member of an informal but extremely powerful “inner circle” dominated by David Addington, the chief of staff for Vice President Cheney. In fact, Yoo and Haynes are regular racquetball partners. Like Addington and Cheney, Yoo believes in virtually unrestricted executive powers during a time of war. Yoo wrote that almost any interrogation methods used against terror suspects is legally permissible, an argument that shocks Mora.
Mora's Response - In his June 2004 memo on the subject (see July 7, 2004), Mora will write, “The memo espoused an extreme and virtually unlimited theory of the extent of the President’s Commander-in-Chief authority.” Yoo’s reasoning is “profoundly in error,” Mora concludes, and is “clearly at variance with applicable law.” In 2006, Mora will add, “If everything is permissible, and almost nothing is prohibited, it makes a mockery of the law.” He writes to Walker shortly thereafter, saying that not only is Yoo’s opinion “fundamentally in error” but “dangerous,” because it has the weight of law and can only be reversed by the Attorney General or the President. Walker writes back that she disagrees, and she believes Haynes does as well. Two weeks later, Mora will discuss the memo with Yoo (see February 6, 2003). [New Yorker, 2/27/2006]
Daniel Bogden, the US Attorney for Nevada (see November 2, 2001), undergoes an Evaluation and Review Staff (EARS) performance review undertaken by the Justice Department. Bogden does quite well. His evaluation states in part: “United States Attorney Bogden and his supervisory [staff] were well respected by the USAO [US Attorney’s] staff, the investigative and client agencies, and the judiciary.… The senior management team appropriately managed the department’s criminal and civil priority programs and initiatives.… Bogden was highly regarded by the federal judiciary, the law enforcement and civil client agencies, and the staff of the USAO. He was a capable leader of the USAO. He was actively involved in the day-to-day management of the USAO.” [US Department of Justice, Office of the Inspector General, 9/29/2008] The March 2006 evaluation of Bogden and his office indicates that the first performance review was conducted during the first week of March 2003, not February 2003. [US House of Representatives, Committee of the Judiciary, 4/13/2007 ] In August 2003, Bogden will receive a summative of the EARS report from the Executive Office for US Attorneys. His office will score higher than average on the cumulative ratings, and Bogden will be praised for the work he does with the department’s anti-terrorism task force and his evident skill at managing his office. [US House of Representatives, Committee on the Judiciary, 5/21/2007]
US Attorney Kevin Ryan of the Northern District of California (see August 2, 2002) undergoes his first Evaluation and Review Staff (EARS) performance evaluation, as mandated by the Justice Department. The final report states that “the overall evaluation was positive,” and that Ryan is “dedicated to the effective management of the office and to the priorities of the attorney general.” The report calls him an effective leader, and says that the area “judiciary was favorably impressed with the new United States Attorney.” [US Department of Justice, Office of the Inspector General, 9/29/2008] A follow-up letter indicates that Ryan’s office received a slightly higher-than-average cumulative assessment score in comparison to US Attorneys’ offices nationwide. The office was singled out for success in implementing the Project Safe Neighborhoods (PSN) initiative, designed to reduce gun violence in districts, and its work in combating corporate fraud. [US House of Representatives, Committee on the Judiciary, 5/21/2007]
Jay Bybee, the head of the Justice Department’s Office of Legal Counsel (OLC), is stepping down to become a federal judge (see February 5, 2003). White House counsel Alberto Gonzales and Vice President Cheney’s lawyer, David Addington, want OLC lawyer John Yoo to take Bybee’s place. But Attorney General John Ashcroft, miffed at Yoo’s bureaucratic maneuvers to give the White House a direct connection into the department and cut Ashcroft out of the loop, refuses. Yoo resigns in the summer of 2003 and resumes his position as a law professor at the University of California at Berkeley. Instead, Ashcroft and the White House will choose Jack Goldsmith to head the OLC (see October 6, 2003). Goldsmith seems a perfect replacement for Yoo—the two had coauthored one Wall Street Journal op-ed that claimed treaties were not binding on the US, and another Journal op-ed claiming that President Bush had the right to unilaterally withdraw the US from the Anti-Ballistic Missile Treaty (see May 26, 1972). Goldsmith was also a supporter of the administration’s military commissions program, noting that the need for “swift justice” was transcendant. [Savage, 2007, pp. 182]
The Office of Legal Counsel (OLC)‘s John Yoo sends a secret memo to the chief counsel of the Defense Department, William Haynes. The contents remain secret, but the American Civil Liberties Union (ACLU) will later learn that the subject of the memo is “The American Bar Association’s Task Force on Treatment of Enemy Combatants Report.” The ABA will issue a report condemning the US’s treatment of detainees in August 2004 (see August 9, 2004). [American Civil Liberties Union [PDF], 1/28/2009 ]
The Senate Judiciary Committee issues an interim report titled “FISA Implementation Failures” that finds the FBI has mishandled and misused the Foreign Intelligence Surveillance Act (FISA) in its anti-terrorism measures. The report is written by Arlen Specter (R-PA), Charles Grassley (R-IA), and Patrick Leahy (D-VT). [US Congress, 2/2003] Committee chairman Orrin Hatch (R-UT) not only refused to take part in the report, he issues a letter protesting the report’s findings. Other committee members were invited to take part in drafting the report, but none did so. [Salon, 3/3/2003] Specter says just after the report is issued, “The lack of professionalism in applying the law has been scandalous. The real question is if the FBI is capable of carrying out a counterintelligence effort.” According to the report, both the FBI and the Justice Department routinely employ excessive secrecy, suffer from inadequate training, weak information analysis, and bureaucratic bottlenecks, and will stifle internal dissent to excess as part of their usage of the expanded powers provided under FISA. The report uses as a case study the instance of suspected terrorist Zacarias Moussaoui (see August 16, 2001), who stands accused of conspiring with the 9/11 hijackers. FBI officials in Washington impeded efforts by its agents in Minneapolis, most notably former FBI agent Coleen Rowley, to secure a FISA warrant that would have allowed those agents to search Moussaoui’s laptop computer and belongings before the attack. [US Congress, 2/2003; Associated Press, 2/25/2003] “September 11 might well have been prevented,” says Specter. “What are they doing now to prevent another 9/11?” Grassley adds that in closed Senate hearings, they learned that two supervisors who handled the case did not understand the basic elements of FISA, and a senior FBI attorney could not provide the legal definition of “probable cause,” a key element needed to obtain a FISA warrant. [Associated Press, 2/25/2003] “I hate to say this,” Leahy observes, “but we found that the FBI is ill-equipped” to conduct surveillance on those in the United States possibly plotting terrorist acts on behalf of foreign powers. [Salon, 3/3/2003]
Lack of Cooperation from FBI, Justice Department - The report says that neither the FBI nor the Justice Department were cooperative with the Judiciary Committee in the committee’s efforts to investigate either agency’s actions under FISA, routinely delaying their responses to Congressional inquiries and sometimes ignoring them altogether. The report says that perhaps the most troubling of its findings is “the lack of accountability that has permeated the entire application procedure.” The report notes that although Congressional oversight is critical to ensure a transparent, effective usage of FISA powers (augmented under the USA Patriot Act) that do not stray from legal boundaries, such oversight has been discouraged by both the FBI and the Justice Department. [US Congress, 2/2003] The Justice Department dismisses the report as “old news.” [Patrick Leahy, 2/27/2003] Grassley says, “I can’t think of a single person being held accountable anywhere in government for what went on and what went wrong prior to Sept. 11. It seems that nobody in government makes any mistakes anymore.” [Salon, 3/3/2003]
Spark for New Legislation - The three senators use the report as a springboard to introduce a bill, the “Domestic Surveillance Oversight Act,” which will allow Congress to more closely oversee oversee FBI surveillance of Americans and government surveillance of public libraries, would supervise FISA usage in criminal cases, and disclose the secret rules of the FISA court to Congress. [Associated Press, 2/25/2003] Even though all three senators support a lowering of the standards by which a FISA warrant can be issued, the American Civil Liberties Union says it supports the bill, with reservations. “There’s a lot of concern in this country that, especially with the USA PATRIOT Act, FISA has become a massive tool for secret surveillance,” says ACLU lawyer Timothy Edgar. “One way to assuage those concerns—or show that they’re true—is to have more reporting.” Edgar says that the ACLU worries about the lowering of the standards for such warrants, but as long as the bill implement. [Salon, 3/3/2003] The question of the bill becomes moot, however, as it will never make it out of committee. [US Congress - Senate Judiciary Committee, 3/2003]
Entity Tags: USA Patriot Act, Robert S. Mueller III, Tim Edgar, Patrick J. Leahy, Senate Judiciary Committee, Marion (“Spike”) Bowman, Federal Bureau of Investigation, US Department of Justice, American Civil Liberties Union, Foreign Intelligence Surveillance Act, Arlen Specter, Domestic Surveillance Oversight Act, Charles Grassley, Zacarias Moussaoui
Timeline Tags: Civil Liberties
The Justice Department’s Office of Legal Counsel (OLC) sends a classified memo to Attorney General John Ashcroft. The contents remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo concerns the use of information collected in the course of classified foreign intelligence activities. [American Civil Liberties Union [PDF], 1/28/2009 ] The memo may concern a just-released Senate report condemning the Justice Department’s misuse of the Foreign Intelligence Surveillance Act (see February 25, 2003).
Coleen Rowley, the FBI whistleblower who was proclaimed Time magazine’s Person of the Year in 2002, sends another public letter to FBI Director Mueller. She believes the FBI is not prepared for new terrorist attacks likely to result from the upcoming Iraq war. She also says counterterrorism cases are being mishandled. She claims the FBI and the Justice Department have not questioned captured al-Qaeda suspects Zacarias Moussaoui and Richard Reid about their al-Qaeda contacts, choosing instead to focus entirely on prosecution. She writes, “Lack of follow-through with regard to Moussaoui and Reid gives a hollow ring to our ‘top priority’
—i.e., preventing another terrorist attack. Moussaoui almost certainly would know of other al-Qaeda contacts, possibly in the US, and would also be able to alert us to the motive behind his and Mohamed Atta’s interest in crop-dusting.” Moussaoui’s lawyer also says the government has not attempted to talk to Moussaoui since 9/11. [New York Times, 3/5/2003; New York Times, 3/6/2003]
A working group appointed by the Defense Department’s general counsel, William J. Haynes, completes a 100-page-plus classified report justifying the use of torture on national security grounds. The group—headed by Air Force General Counsel Mary Walker and including top civilian and uniformed lawyers from each military branch—consulted representatives of the Justice Department, the Joint Chiefs of Staff, the Defense Intelligence Agency, and other intelligence agencies in drafting the report. It was prepared for Secretary of Defense Donald Rumsfeld and was meant to respond to complaints from commanders working at the Guantanamo Bay base in Cuba who claimed that conventional interrogation tactics were inadequate. The conclusions in the report are similar to those of an August 1, 2002 memo (see August 1, 2002) drafted by the Justice Department’s Office of Legal Counsel (OLC). The OLC is said to have also contributed to this report. [US Department of Defense, 3/6/2003; Wall Street Journal, 6/7/2004; Los Angeles Times, 6/10/2004] The report notes that both Congress and the Justice Department will have difficulty enforcing the law if US military personnel could be shown to be acting as a result of presidential orders. [Washington Post, 6/8/2004]
President's Authority During War Gives Power to Order Torture, Supersede Law - One of the main conclusions of the report is that the president’s authority as commander-in-chief permits him during times of war to approve almost any physical or psychological interrogation method—including torture—irrespective of any domestic or international law. The report finds, “[I]n order to respect the President’s inherent constitutional authority to manage a military campaign… [the 1994 law banning torture] must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority.” The draft report clearly states that neither Congress, the courts, nor international law has jurisdiction over the president’s actions when the country is waging war. The report asserts that “without a clear statement otherwise, criminal statutes are not read as infringing on the president’s ultimate authority” to wage war. Furthermore, “any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution’s sole vesting of the commander-in-chief authority in the president.” According to the document, the federal Torture Statute simply does not apply. “In order to respect the president’s inherent constitutional authority to manage a military campaign… (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his commander-in chief authority,” the report states (The parenthetical comment is in the original document). A career military lawyer will later tell the Wall Street Journal that many lawyers disagreed with these conclusions, but that their concerns were overridden by the political appointees heading the drafting of the report. The lawyer explains that instead, military lawyers focused their efforts on limiting the report’s list of acceptable interrogation methods. [Wall Street Journal, 6/7/2004; Washington Post, 6/8/2004]
Guantanamo Bay Not Covered under Torture Restrictions - The report also finds that the 1994 law barring torture “does not apply to the conduct of US personnel” at Guantanamo Bay, nor does it apply to US military interrogations that occurred outside US “maritime and territorial jurisdiction,” such as in Iraq or Afghanistan. [Washington Post, 6/8/2004]
Legal Arguments to Defend against Torture Charges Conflict with International Statutes - The draft report lists several possible arguments that US civilian or military personnel might use to defend themselves against charges of torture or other war crimes. According to the administration’s lawyers, one argument would be that such actions were “necessary” in order to prevent an attack. However, this rationale seems to ignore very clear statements in the Convention Against Torture (see October 21, 1994) which states that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Another line of defense, the report says, would be to claim that the accused had been acting under “superior orders” and that therefore no “moral choice was in fact possible.” Likewise, the report cites a Justice Department opinion, which the draft report says “concluded that it could not bring a criminal prosecution against a defendant who had acted pursuant to an exercise of the president’s constitutional power.” This also contradicts the Convention against Torture, which states that orders from superiors “may not be invoked as a justification of torture.” The authors of the report also suggest in the draft report that accused officials could argue that they had “mistakenly relied in good faith on the advice of lawyers or experts,” adding, “Good faith may be a complete defense.” The memo also argues that the International Covenant on Political and Civil Rights (ICCPR), to which the US is a party, “does not apply outside the United States or its special maritime and territorial jurisdiction (SMTJ), and that it does not apply to operations of the military during an international armed conflict,” as the US “has maintained consistently.” Since the “Guantanamo Bay Naval Station (GTMO) is included within the definition of the special maritime and territorial jurisdiction of the United States,” the ICCPR does not apply to Guantanamo Bay. The authors are also convinced that officials would not be prosecutable under US law, concluding that “constitutional principles” precluded the possibility that officials could be punished “for aiding the president in exercising his exclusive constitutional authorities” and neither Congress nor the courts had the authority to “require or implement the prosecution of such an individual.” [Wall Street Journal, 6/7/2004]
Defining Parameters of Interrogation Methods - The document attempts to define the parameters of lawful interrogation methods in terms of the degree of pain or psychological manipulation they cause. The report states that the infliction of physical or mental suffering does not constitute torture. To violate Section 2340 A of the US Code, prohibiting physical torture, suffering must be “severe,” the lawyers advise, noting that according to a dictionary definition, this would mean that the pain “must be of such a high level of intensity that… [it] is difficult for the subject to endure.” It must also be “inflicted with specific intent,” they say, meaning that the perpetrator expressly intends to cause severe pain and suffering. But if the defendant simply used pain and suffering as a means to an end, such specific intent would not exist. Under certain circumstances, the lawyers explain, the US would be justified in resorting to illegal measures like torture or homicide. They argue that such measures should be considered “self-defense” in cases where officials “honestly believe” that such actions would prevent an imminent attack against the US. “Sometimes the greater good for society will be accomplished by violating the literal language of the criminal law,” the draft document asserts. “In sum,” the panel determines, “the defense of superior orders will generally be available for US Armed Forces personnel engaged in exceptional interrogations except where the conduct goes so far as to be patently unlawful.” Civil law suits, the panel notes, by a foreign victim of torture will not apply to the US government. [US Department of Defense, 3/6/2003; Wall Street Journal, 6/7/2004]
Report May Not Define Practices, Pentagon Implies - A Pentagon spokesman later says the memo represents “a scholarly effort to define the perimeters of the law,” and notes: “What is legal and what is put into practice is a different story.” [Washington Post, 6/8/2004]
Entity Tags: US Department of Justice, US Department of Defense, Office of Legal Counsel (DOJ), International Covenant on Political and Civil Rights, Joint Chiefs of Staff, Convention Against Torture, Defense Intelligence Agency, Donald Rumsfeld, Mary L. Walker, William J. Haynes
Timeline Tags: Torture of US Captives, Civil Liberties
The new head of the Justice Department’s Office of Legal Counsel (OLC), Jack Goldsmith, sends a classified memo to Deputy Attorney General James Comey. The contents of the memo remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo concerns classified foreign intelligence activities (see February 25, 2003). [American Civil Liberties Union [PDF], 1/28/2009 ] (The ACLU has Goldsmith as the author of the memo, even though he is not nominated for the OLC slot until May 2003 [Savage, 2007, pp. 183] , and will not be confirmed for the position until five months after that (see October 6, 2003). The reason for the apparent discrepancy is not immediately discernible.)
The Justice Department sends a legal memorandum to the Pentagon that claims federal laws prohibiting torture, assault, maiming, and other crimes do not apply to military interrogators questioning al-Qaeda captives because the president’s authority as commander in chief overrides the law. The 81-page memo, written by the Office of Legal Counsel’s John Yoo, is not publicly revealed for over five years (see April 1, 2008).
President Can Order Maiming, Disfigurement of Prisoners - Yoo writes that infractions such as slapping, shoving, and poking detainees do not warrant criminal liability. Yoo goes even farther, saying that the use of mind-altering drugs can be used on detainees as long as they do not produce “an extreme effect” calculated to “cause a profound disruption of the senses or personality.” [John C. Yoo, 3/14/2003 ; Washington Post, 4/2/2008] Yoo asks if the president can order a prisoner’s eyes poked out, or if the president could order “scalding water, corrosive acid or caustic substance” thrown on a prisoner. Can the president have a prisoner disfigured by slitting an ear or nose? Can the president order a prisoner’s tongue torn out or a limb permanently disabled? All of these assaults are noted in a US law prohibiting maiming. Yoo decides that no such restrictions exist for the president in a time of war; that law does not apply if the president deems it inapplicable. The memo contains numerous other discussions of various harsh and tortuous techniques, all parsed in dry legal terms. Those tactics are all permissible, Yoo writes, unless they result in “death, organ failure, or serious impairment of bodily functions.” Some of the techniques are proscribed by the Geneva Conventions, but Yoo writes that Geneva does not apply to detainees captured and accused of terrorism. [Washington Post, 4/6/2008]
'National Self-Defense' - Yoo asserts that the president’s powers as commander in chief supersede almost all other laws, even Constitutional provisions. “If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al-Qaeda terrorist network,” Yoo writes. “In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.… Even if an interrogation method arguably were to violate a criminal statute, the Justice Department could not bring a prosecution because the statute would be unconstitutional as applied in this context.” Interrogators who harmed a prisoner are protected by a “national and international version of the right to self-defense.” He notes that for conduct during interrogations to be illegal, that conduct must “shock the conscience,” an ill-defined rationale that will be used by Bush officials for years to justify the use of waterboarding and other extreme interrogation methods. Yoo writes, “Whether conduct is conscience-shocking turns in part on whether it is without any justification,” explaining that that it would have to be inspired by malice or sadism before it could be prosecuted.
Memo Buttresses Administration's Justifications of Torture - The Justice Department will tell the Defense Department not to use the memo nine months later (see December 2003-June 2004), but Yoo’s reasoning will be used to provide a legal foundation for the Defense Department’s use of aggressive and potentially illegal interrogation tactics. The Yoo memo is a follow-up and expansion to a similar, though more narrow, August 2002 memo also written by Yoo (see August 1, 2002). Defense Secretary Donald Rumsfeld will suspend a list of aggressive interrogation techniques he had approved, in part because of Yoo’s memo, after an internal revolt by Justice Department and military lawyers (see February 6, 2003, Late 2003-2005 and December 2003-June 2004). However, in April 2003, a Pentagon working group will use Yoo’s memo to endorse the continued use of extreme tactics. [John C. Yoo, 3/14/2003 ; Washington Post, 4/2/2008; New York Times, 4/2/2008]
Justice Department Claims Attorney General Knows Nothing of Memo - Yoo sends the memo to the Pentagon without the knowledge of Attorney General John Ashcroft or Ashcroft’s deputy, Larry Thompson, senior department officials will say in 2008. [Washington Post, 4/4/2008]
Entity Tags: US Department of Justice, John C. Yoo, Larry D. Thompson, Al-Qaeda, Office of Legal Counsel (DOJ), Donald Rumsfeld, John Ashcroft, Geneva Conventions, US Department of Defense
Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties
The Justice Department decides that Iraq needs around 6,600 foreign advisers to rehabilitate and rebuild its police forces. The White House sends one person: former New York City police commissioner Bernard Kerik. [Washington Post, 9/17/2006] In film shot for a 2007 documentary, No End in Sight, Kerik will recall: “First week May I was contacted by the White House… would I meet with Defense Secretary [Donald] Rumsfeld… to discuss policing policies in Iraq.… [W]e discussed basically the Ministry of the Interior and reconstitution of the Interior, what the Interior consisted of, what the prior offices were, estimated number of police, and border controls. Some information they had, some they didn’t.” Reporter Michael Moss will continue in the footage (which is cut from the final version of the documentary): “They saw in Bernie a quick fix.… [H]e had 10 days to prepare… hadn’t been to Iraq; knew little about it; and in part, prepared for the job by watching A&E documentaries on Saddam Hussein.” [New York Post, 12/14/2007]
9/11 Star - Kerik is considered a star. Made famous by his efforts in the days and weeks after the 9/11 attacks (see (After 10:28 a.m.-12:00 pm.) September 11, 2001), he is asked for his autograph by soldiers and constantly pressed for interviews by reporters. President Bush considers Kerik the perfect man to take over Iraq’s Interior Ministry and rebuild the shattered Iraqi police forces. His previous experience in the Middle East is dubious—as security director for a government hospital in Saudi Arabia, he had been expelled as part of an investigation into his surveillance of the medical staff.
Others Too Liberal - He also lacks any experience in postwar policing, but White House officials view this as an asset. The veterans the White House is familiar with lack the committment to establishing a democracy in Iraq, they feel. Those with experience—post-conflict experts with the State Department, the United Nations, or non-governmental organizations—are viewed as too liberal. Kerik is a solidly conservative Republican with an unwavering loyalty to the Bush administration and a loud advocate of democracy in Iraq. Author Rajiv Chandrasekaran will later write: “With Kerik, there were bonuses: The media loved him, and the American public trusted him.” [Washington Post, 9/17/2006]
White House 'Eyes and Ears' - Kerik will quickly make clear one of his top priorities as Iraq’s new police chief: according to one subordinate, he will frequently remind his underlings that he is the Bush administration’s “eyes and ears” in Iraq. [TPM Muckraker, 11/9/2007]
Bernard Kerik in the Green Zone, July 2003. [Source: Associated Press / Dario Lopez-Mills]Former New York City police commissioner, Bernard Kerik, the newly appointed head of Iraq’s Interior Ministry and the man chosen to rebuild Iraq’s police forces (see Early May, 2003), does not make a strong impression on the State Department’s Robert Gifford, a senior adviser to the Interior Ministry and an expert on international law enforcement. Kerik is in Iraq to take over Gifford’s job. He tells Gifford that his main function is to “bring more media attention to the good work on police,” and he doubts “the situation is… as bad as people think it is.” When Gifford briefs Kerik, he quickly realizes that Kerik isn’t listening. “He didn’t listen to anything,” Gifford will later recall. “He hadn’t read anything except his e-mails. I don’t think he read a single one of our proposals.” Kerik is not in Baghdad to do the heavy lifting of leading the rebuilding. He intends to leave that to Gifford. Kerik will brief American officials and reporters. And, he says, he will go out on some law enforcement missions himself. Kerik garners much network air time by telling reporters that he has assessed the situation in Iraq and it is improving. Security in Baghdad, he says, “is not as bad as I thought. Are bad things going on? Yes. But is it out of control? No. Is it getting better? Yes.” He tells a Time reporter that “people are starting to feel more confident. They’re coming back out. Markets and shops that I saw closed one week ago have opened.” Kerik parades around the Green Zone with a team of South African mercenaries as his personal bodyguard force, and packs a 9mm handgun under his safari vest.
Ignoring Basic Processes - The first few months after the overthrow of the Hussein government are a critical time. Police officers need to be called back to work and screened for Ba’ath Party connections. They must be retrained in due process, in legal (non-torture) interrogation procedures, and other basic law enforcement procedures. New police chiefs need to be selected. Tens of thousands of new police officers must be hired and trained. But Kerik has no interest in any of this. He only holds two staff meetings, and one of these is a show for a New York Times reporter. Kerik secures no funding for police advisers. He leaves the chores of organizing and training Iraqi police officers to US military policemen, most of whom have no training in civilian law enforcement. Gerald Burke, a former Massachusetts State Police commander who participated in the initial Justice Department assessment mission, will later say: “He was the wrong guy at the wrong time. Bernie didn’t have the skills. What we needed was a chief executive-level person.… Bernie came in with a street-cop mentality.”
Night Adventures - What Kerik does do is organize a hundred-man Iraqi police paramilitary unit to chase down and kill off members of the black market criminal syndicates that have sprung up after the invasion. He often joins the group on nighttime raids, leaving the Green Zone at midnight and returning at dawn, appearing at CPA administrator L. Paul Bremer’s morning staff meetings to regale his audience with tales of the night’s adventures. Kerik’s hit squad does put a few car-theft and kidnapping gangs out of business, and Kerik makes sure to get plenty of press coverage for these successes. But he leaves the daily work of rebuilding the Iraqi police to others: he sleeps during the day so he can go out at night. Many members of the Interior Ministry become increasingly distressed at Kerik’s antics and his systematic ignorance of his duties, but realize that they can do nothing. “Bremer’s staff thought he was the silver bullet,” a member of the Justice Department assessment mission will later say. “Nobody wanted to question the [man who was] police chief during 9/11.” When Kerik leaves three months later, virtually nothing has been done to rebuild Iraq’s police forces. (Kerik will blame others for the failures, saying he was given insufficient funds to hire police advisers or to establish large-scale training programs.) He will later recall his service in Baghdad: “I was in my own world. I did my own thing.” [Washington Post, 9/17/2006]
'Irresponsible' - In 2007, Senator John McCain (R-AZ) will say that Kerik was “irresponsible” in his tenure as head of Iraq’s Interior Ministry (see November 9, 2007). “Kerik was supposed to be there to help train the police force,” McCain will say. “He stayed two months and one day left, just up and left.” [Associated Press, 11/9/2007]
A button supporting the Texas Democrats, nicknamed the ‘Killer D’s.’ [Source: Ebay (.com)]The Republican leadership of the Texas legislature sends agents from the Department of Homeland Security (DHS), the Texas Rangers, state troopers, and members of the Special Crimes unit to locate and apprehend over 50 Democratic state legislators who have left the state to prevent a quorum from being reached. The state Democrats left Austin, and the state, in order to prevent the Republican leadership from passing a controversial electoral redistricting plan that they say discriminates against minority voters (see 2002-2004). One Democratic lawmaker, Representative Helen Giddings, is apprehended. Many of the Democrats are staying for the time being in Ardmore, Oklahoma. One Democrat, Representative Craig Eiland, says that police officers questioned his wife in Galveston, where their newborn twins are in intensive care. He calls the law enforcement efforts to “find” him and his colleagues “bordering on harassment,” and advises, “Let the good guys go back to catching the bad guys and let the politicians deal with each other.” Under Texas law, even though the Democrats are committing no crime in refusing to participate in the legislative session, state law enforcement officers have the authority to arrest members of the legislature and forcibly return them to Austin to allow the legislature to achieve a quorum. [Fort Worth Star-Telegram, 5/14/2003]
Use of Federal Resources; DHS 'Furious' at Involvement - US Representative Tom DeLay (R-TX) says that the Speaker of the Texas House, Tom Craddick (R-Midland), has asked for the intervention of the FBI and/or US Marshals to “go up and get those members.” Craddick denies making any such request. The US attorney’s office in San Antonio says that an “unidentified person” called it with an inquiry about federalizing the “arrest warrant.” A Justice Department spokesperson says the issue is entirely a state matter, and “would not warrant investigation by federal authorities.” The Air and Marine Interdiction and Coordination Center, a federal agency under the purview of the DHS, is involved for a time in a search for a private plane belonging to former House Speaker Pete Laney (D-Hale Center). The agency’s purpose is to engage in counterterrorism activities. Craddick says that the agency was successful in locating the airplane in Ardmore, alerting him that many of the Democrats are in that town. Craddick says: “We called someone, and they said they were going to track it. I have no idea how they tracked it down. That’s how we found them.” Bush administration officials promised that DHS agencies and officials would not operate within American borders when the agency was created. [Fort Worth Star-Telegram, 5/14/2003; CommonDreams, 5/14/2003] According to DHS officials, someone in the Texas Department of Public Safety (DPS) calls the Air and Marine Interdiction Coordination Center on May 12 and says: “We got a problem and I hope you can help me out. We had a plane that was supposed to be going from Ardmore, Oklahoma, to Georgetown, Texas. It has state representatives in it and we cannot find this plane.” The center agrees to help, DHS says, because “from all indications, this request from the Texas DPS was an urgent plea for assistance from a law enforcement agency trying to locate a missing, lost, or possibly crashed aircraft.” DHS officials contradict Craddick by denying that the center found Laney’s plane in Ardmore. Senator Joseph Lieberman (D-CT) says: “I am outraged that Homeland Security resources are being used to help settle partisan scores. It’s inconceivable that anyone would waste scarce department resources for such an indefensible purpose.” Lieberman is demanding an investigation into the matter. Representative Jim Turner (D-TX), the ranking Democrat on the House Select Committee on Homeland Security, says he is reminded “of the days of Watergate, when federal resources were used for purely partisan political purposes.” According to the New York Times, DeLay is working closely with Craddick on the matter, though a DeLay spokesman denies that anyone from DeLay’s office has had any contact with DHS, and adds, “This is a smoke screen from the Democrats, who will say or do anything to change the subject from shirking their constitutional responsibilities.” DPS spokesperson Tom Vinger refuses to say specifically what his department has done to find the legislators, saying only: “We were ordered to begin an investigation into the missing legislators by the Texas House and to take them into custody if we found them and bring them back to the House chambers. Those were our orders. And we used very basic, routine investigative procedures in an attempt to do this.” DHS officials tell a Times reporter on the condition of anonymity that they are furious about being involved in the search. [Utne Reader, 5/2003; New York Times, 5/15/2003] Craddick soon orders all records of the Republicans’ search for the Democrats to be destroyed, sparking outrage among the Democrats, who demand accountability and say Craddick is trying to hide something. [CBS News, 5/21/2003]
Questioning Family Members - Law enforcement officers have questioned the children of Representative Joe Pickett, angering Pickett’s wife Denise. And Carol Roark, the wife of Representative Lon Burnam, says police officers appeared at her home in Fort Worth and announced they were there to “arrest” her husband; one officer told her, “I’m here on the order of Tom Craddick to arrest Rep. Lon Burnam.” Roark says she laughed at the officer, and says, “I think it was a pretty silly use of tax dollars.” Dallas Mayor Laura Miller, whose husband, Representative Steve Wolens, is in Ardmore, says that police officers have camped out overnight in front of her home. Miller says, “I felt very safe last night because there were two DPS officers who slept in front of my home.” [Fort Worth Star-Telegram, 5/14/2003]
Mixed Reactions - Reaction to the Democrats’ exodus is mixed. Supporters have dubbed them the “Heroes of the House” and the “Killer D’s,” the latter a reference to a similar action taken by Texas Senate Democrats in the late 1970s. Republicans in Texas and Washington have labeled the Democratic lawmakers “cowards” and “terrorists.” Many Texas news outlets have shown sympathy to the Democrats and have criticized what some call the excessive reaction by the Republican leadership. [CommonDreams, 5/14/2003] DeLay says the Democrats who have left Texas “may not be patriots,” and adds, “Representatives are elected and paid for by the people with the expectation that they show up for work and do the people’s business and have the courage to cast tough votes.” In response, Representative Martin Frost (D-Arlington) says in regards to the redistricting plan: “Tom DeLay would be perfectly happy in the old Soviet Union. He wants one-party government. He doesn’t believe in a two-party system.” DeLay’s House colleague, Lloyd Doggett (D-TX), says, “It is easier, I think, for Tom to manipulate these lines… than it is to win elections.” [Dallas Morning News, 5/14/2003; New York Times, 5/15/2003]
Order Expires - The order from the Republican leadership is essentially vacated on May 15, when the Texas House, formerly “standing at ease,” officially adjourns. At that point, the “call on the House,” under which law enforcement officials are authorized to apprehend and forcibly return recalcitrant lawmakers, is abated. They return to Austin on May 16. Representative Jim Dunnam (D-Waco), who helped organize the retreat, says, “Government is by the people and for the people, and we had to go to Oklahoma to say government is not for Tom DeLay.” The delay causes the redistricting bill to lapse, but it will be brought up again in the next session, according to Texas Republicans. Representative Beverly Woolley (R-Houston) says: “Texas is a Republican state by all voting population, and they [Republicans] deserve to have greater representation in Congress. Sooner or later, we will redistrict. This is not over.” [New York Times, 5/15/2003; Houston Chronicle, 5/16/2003]
Entity Tags: James Dunnam, US Department of Homeland Security, Denise Pickett, Tom DeLay, US Department of Justice, Helen Giddings, Craig Eiland, Carol Roark, Air and Marine Interdiction and Coordination Center, Beverly Woolley, Bush administration (43), Tom Craddick, Texas State Legislature, Tom Vinger, Texas Rangers, Laura Miller, Martin Frost, Lloyd Doggett, Lon Burnam, Texas Republican Party, Joe Pickett, Joseph Lieberman, Jim Turner, Steve Wolens, Texas Department of Public Safety, Pete Laney, New York Times, Texas Democratic Party
Timeline Tags: Civil Liberties
The House Appropriations subcommittee investigating the Branch Davidian tragedy in Waco (see March 1, 1993 and April 19, 1993) releases heavily edited excerpts from 911 call conversations between federal agents and Davidian members made during the February 1993 raid on the Davidian compound by the Bureau of Alcohol, Tobacco and Firearms (BATF—see 5:00 A.M. - 9:30 A.M. February 28, 1993). A Dallas FBI agent released edited portions of the tapes to a Congressional investigator, who gave the tapes to the subcommittee members. The Justice Department says the FBI agent, Oliver “Buck” Revell, erred in giving the tape; a department investigation finds Revell did not knowingly do anything wrong in releasing the tape, which is used by the FBI to train negotiators to deal with similar situations. The McLennan County, Texas, Police Department releases unedited versions of the tapes shortly after the House subcommittee makes its tapes public; federal prosecutors who intend to prosecute some of the surviving Davidians (see August 7, 1993) had intended to keep the tapes secret until the trial. Senator Dennis DeConcini (D-AZ) asks Attorney General Janet Reno to investigate the tape’s initial release, saying: “Who edited the version of the tape given to the House in the first place, and why, in that version, are conversations with David Koresh out of order? Is there a reason why the FBI, for training purposes, would leave out the threatening statements made by the Branch Davidians on the actual tape?” The House subcommittee was told that the tape was an accurate recording of the first half-hour of local police negotiations with Davidian Wayne Martin. “The release of altered tapes that are evidence before a grand jury is an assault on the department’s integrity,” DeConcini writes. “It is essential that this matter be investigated thoroughly and that the individuals responsible receive the most severe penalties available under the law.” The edited tape makes it appear that the 911 call center could not reach BATF agents for almost an hour after the 911 calls commenced. The police tapes feature two unedited hours of conversation between Martin and local law enforcement officials, and show that 911 operators made contact with BATF raid commanders within a half-hour of the first call to the hotline by Martin. The police tapes also indicate that BATF officials worked closely with the 911 call center to negotiate a cease-fire and evacuation of wounded federal agents. [Dallas Morning News, 8/7/1993]
Entity Tags: McLennan County Sheriff’s Department (Texas ), David Koresh, Branch Davidians, Dennis DeConcini, Federal Bureau of Investigation, US Bureau of Alcohol, Tobacco, Firearms and Explosives, House Committee on Appropriations, Janet Reno, US Department of Justice, Wayne Martin, Oliver (“Buck”) Revell
Timeline Tags: 1993 Branch Davidian Crisis
Robert Jordan. [Source: KGW]Beginning in 1999, the FBI had conducted five disciplinary investigations of FBI agent Robert Wright and failed to find any wrongdoing. But within days of Wright’s second press conference (see June 2, 2003), they launch yet another investigation about him, claiming his media appearances show he was insubordinate. [Chicago Tribune, 4/22/2005] Senators Charles Grassley (R-IA) and Patrick Leahy (D-VT) quickly hear of this new investigation and co-author a letter to FBI Director Robert Mueller on July 12. The letter states, “We are troubled by the FBI’s apparent haste to launch [a disciplinary] investigation every time an agent speaks publicly about problems within the FBI… The FBI should worry more about catching terrorists than gagging its own agents.” The senators demand a briefing on what is happening. [CNN, 6/19/2003; Chicago Tribune, 7/13/2004] In July 2003, FBI agent Royden Rice speaks to a reporter from the LA Weekly. Wright will later sue the FBI, alleging that Rice disclosed classified information to the reporter in an attempt to smear him. Rice denies the charges and the case is still pending. [LA Weekly, 7/22/2005] In December 2003, John Roberts, the third highest ranking official in the FBI’s disciplinary office, writes a memo about FBI Assistant Director Robert Jordan and Deputy Assistant Director Jody Weis. The memo claims that Jordan and Weis were overheard saying that Wright’s second press conference (see June 2, 2003) would give them an opportunity to “take him out.” Roberts also refers to an e-mail from a higher up in the Chicago FBI office asking for permission to do a media smear job on Wright (it is not known if this agent is Rice or someone else). Roberts claims that Jordan and Weis are misusing the FBI’s disciplinary process to silence and punish whistleblowers like Wright. He also claims that the allegations against Wright were not serious enough for a disciplinary investigation and at most Wright should have faced a written reprimand, since no classified information was disclosed. Roberts says, “I was left with the clear understanding that I was to… deceive, misrepresent, and hide… the facts of this matter.” [Chicago Tribune, 7/13/2004; New York Post, 7/14/2004] Even though details of Roberts’ memo will be revealed to the press in 2004, the investigation into Wright will continue and result in him being fired in 2005. Senators Grassley and Leahy will write at least three more letters to Mueller demanding explanations, but still will receive no answer. Later in 2005, Wright’s dismissal will be overruled by the Justice Department and he will be reinstated (see April 30, 2005-October 19, 2005). There appears to have been no investigation into the behavior of Jordan and Weis. [LA Weekly, 7/22/2005]
Entity Tags: Robert S. Mueller III, Robert G. Wright, Jr., Robert Jordan, Patrick J. Leahy, Jody Weis, Royden Rice, John E. Roberts, Charles Grassley, Federal Bureau of Investigation, US Department of Justice
Timeline Tags: Complete 911 Timeline
Ali Saleh Kahlah al-Marri. [Source: Slate]A month before he is slated to go on trial for bank and credit card fraud charges (see February 8, 2002), the federal government drops all criminal charges against Ali Saleh Kahlah al-Marri, who has been held without legal representation, and in solitary confinement, since 2001 (see December 12, 2001). [CBS News, 6/23/2003; CBS News, 6/23/2003; CNN, 12/13/2005; Progressive, 3/2007]
'Grave Danger' - President Bush says al-Marri “represents a continuing, present, and grave danger” to the country, and the government designates al-Marri as an “enemy combatant,” alleging that he helped al-Qaeda operatives settle in the US. “Mr. Al-Marri possesses intelligence, including intelligence about personnel and activities of al-Qaeda,” Bush continues, and adds that gaining access to it “would aid US efforts to prevent attacks by al-Qaeda.” [Knight Ridder, 6/24/2003; Progressive, 3/2007] The presidential order says he “engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism.” His detention is necessary, the order claims, to prevent him from participating in terrorist activities against the US. The order in effect precludes a pretrial hearing scheduled for July 2 and the start of a formal trial on July 22. [CNN, 6/24/2003]
Alleged Sleeper Agent - The government declaration for al-Marri says he worked as an “al-Qaeda sleeper agent” who was planning to “hack into the computer systems of US banks,” and possibly facilitate a follow up to the 9/11 attacks. For its part, the Defense Department says al-Marri trained at a terror camp in Afghanistan before 9/11, personally met Osama bin Laden, and volunteered for an unspecified “martyr mission.” [CNN, 12/13/2005] Attorney General John Ashcroft will later claim that al-Marri refused repeated offers to cooperate with the FBI; “consequently,” Ashcroft will write, Bush declares him an enemy combatant. Ashcroft will claim that under the laws of war, an enemy combatant can be killed out of hand. Instead, the government will hold al-Marri “without charge or trial until the end of the war.” [Slate, 11/30/2006]
Transferred to Navy Brig - Instead, the “enemy combatant” designation takes al-Marri, a Qatari citizen and legal US resident, out of the civilian criminal justice system and places him under the control of the Defense Department, which immediately transfers him into detention at a Navy brig in South Carolina. He could face a military tribunal or remain in detention indefinitely, without trial. He is only the third person to be publicly named as an enemy combatant, along with US citizens Jose Padilla and Yaser Esam Hamdi.
Fingered by KSM - According to a Justice Department official, al-Marri was “positively identified” as being part of a planned second wave of al-Qaeda terrorist attacks by an “al-Qaeda detainee in a position to know.” Justice officials imply that the detainee to finger al-Marri is senior 9/11 planner Khalid Shaikh Mohammed. [CBS News, 6/23/2003] Another suspected al-Qaeda operative, Mustafa Ahmed al-Hawsawi (see Early-Late June, 2001), is also said to have mentioned him. [CNN, 12/13/2005] Alice Fisher, the deputy assistant attorney general for the Justice Department’s criminal division, says the department did not drop the criminal charges against al-Marri because the case was weak: “We are confident we would have prevailed on the criminal charges. However, setting the criminal charges aside is in the best interests of our national security.” The criminal charges—lying to banks, lying to the FBI, and credit card fraud—could have given al-Marri up to 60 years in prison and $1.75 million in fines. [CBS News, 6/23/2003]
Pleaded Not Guilty - Al-Marri’s lawyer Mark Berman says that his client pleaded not guilty to the criminal charges (see May 29, 2003), and the case was proceeding to trial. “I definitely got the sense they were reluctant to try the case in court,” Berman says. “They’d rather be in a forum where defendants aren’t represented by counsel.” Al-Marri’s wife and five children have left the US. The Saudi Arabian government granted the family passports in February, in spite of a State Department request not to issue the passports, as department officials wanted al-Marri’s wife, who is Saudi, to be available to the FBI for questioning. [Knight Ridder, 6/23/2003] Al-Marri’s lawyers say they are preparing a legal challenge to Bush’s decision. [Knight Ridder, 6/24/2003]
Entity Tags: US Department of Defense, US Department of State, Osama bin Laden, US Department of Justice, Mustafa Ahmed al-Hawsawi, John Ashcroft, Khalid Shaikh Mohammed, Al-Qaeda, Ali Saleh Kahlah al-Marri, Mark Berman, Alice Fisher, George W. Bush, Jose Padilla, Federal Bureau of Investigation, Yaser Esam Hamdi
Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties
HCA Inc. and the US Justice Department sign a settlement agreement, resolving allegations that the company paid kickbacks to physicians and submitted false cost reports and fraudulent bills to Medicare, Medicaid, and other federal health programs. Under the terms of the agreement, HCA, the country’s largest for-profit hospital chain, will pay the US government $631 million in civil penalties and damages. Additionally, under a separate agreement that was negotiated more than a year ago, HCA will pay the Centers for Medicare and Medicaid Services (CMS) $250 million to resolve “outstanding cost report issues.” Critics of that settlement have alleged that the CMS head—a former lobbyist for the hospital industry—cut the deal behind the Justice Department’s back saving HCA several hundred million dollars (see March 28, 2002-November 2002). [CBS News, 12/18/2002; Washington Post, 12/19/2002; US Department of Justice, 6/26/2003; Nashville Business Journal, 6/26/2003; New York Times, 6/27/2003] These amounts, when combined with the $840 million settlement reached in December of 2000 (see December 14, 2000), make this the government’s single largest fraud settlement in US history. The $1.7 billion settlement concludes a nine-year investigation that began when whistle-blower James Alderson, a former chief financial officer of one of its former hospitals, filed a lawsuit alleging that the company’s cost reports to the government were fraudulent. During the course of the investigation, authorities discovered a second set of books marked “confidential,” revealing that the company had inflated reimbursable costs billed to government health programs. [Phillips & Cohen, 12/18/2002; New York Times, 12/18/2002]
The 9/11 Commission releases a status report showing that various government agencies are not cooperating fully with its investigation. Neither the CIA nor the Justice Department have provided all requested documents. Lack of cooperation on the part of the Department of Defense “[is] becoming particularly serious,” and the Commission has received no responses whatsoever to requests related to national air defenses. The FBI, State Department, and Transportation Department receive generally positive reviews. [Associated Press, 7/9/2003] Commissioner Tim Roemer complains: “We’re not getting the kind of cooperation that we should be. We need a steady stream of information coming to us.… Instead, We’re getting a trickle.” [Guardian, 7/10/2003] The Commission is eventually forced to subpoena documents from the Defense Department and FAA (see November 6, 2003). Commission Chairman Tom Kean also highlights the presence of government “minders” at Commission interviews. The minders accompany witnesses the Commission is interviewing and come from the witnesses’ parent agencies. Kean says: “I think the Commission feels unanimously that it’s some intimidation to have somebody sitting behind you all the time who you either work for or works for your agency. You might get less testimony than you would.” He adds, “We would rather interview these people without minders or without agency people there.” [New York Times, 7/8/2003; Associated Press, 7/9/2003] However, Kean will later play down the effect minders are having on witnesses (see September 23, 2003), the full scope of which will be revealed in an internal Commission memo (see October 2, 2003).
Entity Tags: US Department of Transportation, US Department of Justice, US Department of Defense, US Department of State, Tim Roemer, Federal Bureau of Investigation, 9/11 Commission, Bush administration (43), Central Intelligence Agency, Thomas Kean
Timeline Tags: Complete 911 Timeline, 9/11 Timeline
A CIA attorney calls the Justice Department’s chief of counterespionage to inform him that the CIA is investigating the identity leak of one of its officials, Valerie Plame Wilson (see July 14, 2003), as a possible breach of national security. The attorney leaves a message. Six days later, the CIA will alert Congress that it considers the leak a possible violation of criminal law, and it will so inform the Justice Department (see July 30, 2003). [Central Intelligence Agency, 1/30/2004 ]
The CIA requests that the Justice Department investigate the “outing” of one of its undercover agents, Valerie Plame Wilson. Plame Wilson was revealed as a CIA agent in a column by syndicated conservative columnist Robert Novak (see July 14, 2003). The CIA’s own Office of Security also opens an investigation. The FBI will handle the Justice Department’s investigation. [Central Intelligence Agency, 1/30/2004 ] Novak’s “outing” of Plame Wilson may be a violation of the Intelligence Identities Protection Act, which makes it a crime to knowingly reveal the identity of an undercover intelligence agent (see July 16, 2003). [Dubose and Bernstein, 2006, pp. 214]
US Attorney Carol Lam of the Southern District of California (see November 8, 2002) receives a letter regarding her performance on a recent EARS (Evaluation and Review Staff) assessment performed by the Justice Department. Lam’s office scores significantly higher than the national average of US Attorneys’ offices in a cumularite review. All seven areas scored are rated high—receiving either a 4 or a 5 on a five-point scale. Lam’s office received “best practices” recognition in several areas, including office management. Lam is praised for her “proactive” work in implementing the department’s anti-terrorism policies, her vigorous pursuit of corporate fraud cases, and her office’s work to dismantle and disrupt gang organizations in her district. According to the report, her office’s “Coyote Prosecution Program, which targets alien smuggling foot guides, has been exceedingly successful.” And her office’s focus on technology-related crimes is appropriate for her district. [US House of Representatives, Committee on the Judiciary, 5/21/2007]
Scientist Steven Hatfill files a lawsuit against Attorney General John Ashcroft, the Justice Department, and FBI, saying his constitutional rights have been violated. Hatfill has been named by the FBI as a “person of interest” in the 2001 anthrax attacks (see October 5-November 21, 2001), but has not been charged or officially declared a suspect. His attorneys claim the FBI deliberately tipped off the media to searches of his house to hide the fact that the anthrax investigation was making little progress. They say 24-hour surveillance and wiretaps violated his privacy (see July 2002-Late 2003). [CNN, 8/26/2003] In 2008, Hatfill will settle out of court and receive nearly $6 million in compensation from the government (see June 27, 2008).
The Justice Department’s Office of Legal Counsel (OLC) delineates a method of replacing a US Attorney for up to 330 days without the designated attorney having to go through Senate confirmation. The memo was requested by the director of the Executive Office of US Attorneys (EOUSA), Guy Lewis. The OLC answers legal questions for the president and his appointees. The memo qualifies the method, saying that the appointee would still have to win Senate confirmation or be approved by a federal court in order to continue serving. The memo is entitled “Temporary Filling of Vacancies in the Office of United States Attorney.” It considers two federal laws governing how to fill vacancies temporarily in positions that ordinarily must be confirmed by the Senate. One law allows the president to designate an “acting” replacement for any such position to serve for 210 days. The other law, which applies to US Attorneys only, allows the attorney general to appoint an “interim” replacement for 120 days. The memo suggests using the two provisions in tandem—appointing a person as an acting US Attorney for 210 days and then reclassifying them as an interim US Attorney for 120 more days. In total, a person could use the two classifications to serve as US Attorney for almost a year without undergoing Senate confirmation. [US Department of Justice, 9/5/2003 ; Boston Globe, 4/28/2007]
Slate reports that two years after the 9/11 attacks, neither the Chicago Board Options Exchange nor the Securities and Exchange Commission will make any comment about their investigations into insider trading before 9/11. “Neither has announced any conclusion. The SEC has not filed any complaint alleging illegal activity, nor has the Justice Department announced any investigation or prosecution.… So, unless the SEC decides to file a complaint—unlikely at this late stage—we may never know what they learned about terror trading.”
The Justice Department’s criminal division decides not to prosecute a CIA officer, known only as “Albert,” who intimidated al-Qaeda leader Abd al-Rahim al-Nashiri with a handgun and power drill during interrogations. The use of the gun and drill took place around late 2002 (see Between December 28, 2002 and January 1, 2003), but was not authorised by CIA headquarters. As there will be no prosecution, the department returns the matter to the CIA. [Central Intelligence Agency, 5/7/2004, pp. 42 ; Associated Press, 9/7/2010] The CIA’s inspector general will issue a report on the incidents the next month, but its conclusion is unknown (see October 29, 2003).
The CIA informs the Justice Department that it has completed its internal investigation into the leak of CIA officer Valerie Plame Wilson’s identity to the media. It recommends that the FBI “initiate an investigation of this matter” (see September 26, 2003). [McClellan, 2008, pp. 178-179]
In September and October 2003, Mohdar Abdullah, an associate of 9/11 hijackers Nawaf Alhazmi and Khalid Almihdhar who is being held in a US jail, allegedly brags to fellow prisoners that he knew the two hijackers were planning a terrorist attack (see Early 2000 and see Late August-September 10, 2001). Despite suspicions that he knowingly assisted the hijackers’ plans, Abdullah is only being held for an immigration violation, and he is due to be deported soon. But, according to the 9/11 Commission, the US Attorney for the Southern District of California decides not to prosecute him on charges stemming from these new allegations. Furthermore, the US Justice Department does not even delay his deportation to allow further investigation of this new information. In May 2004, the 9/11 Commission first hears about the new evidence against Abdullah. However, Abdullah is deported to Yemen on May 21, 2004 (see May 21, 2004). [9/11 Commission, 7/24/2004, pp. 217-219] Abdullah is a Yemeni citizen, and he has been stuck in prison for many months because the Yemeni government does not want him back. According to his lawyer, he is only able to be deported after intense pressure by the State Department on the Yemeni government (see May 21, 2004). [San Diego Union-Tribune, 5/26/2004] Not long after Abdullah is deported, a surveillance video will be discovered from the Los Angeles airport, showing Abdullah, Alhazmi, and an unknown third man seemingly casing the airport and recording security measures with a video camera (see June 10, 2000). It is not known when exactly this video is discovered, but a grand jury subpoena for it will be dated October 2004. In September 2006, some anonymous law enforcement officials will tell NBC News that they regret deporting Abdullah, given the discovered video. These officials will say that the FBI has reopened its investigation into Abdullah and is reexamining all of his contacts in the US. NBC News will comment: “Why didn’t they find these tapes until 2004 isn’t known—especially since the FBI knew that on the day these tapes were shot in June 2000, one of the hijackers went to Los Angeles Airport for a flight home to Yemen. Critics are certain to question whether the FBI again missed an important clue, and let a possible accomplice get away.” [MSNBC, 9/8/2006]
The CIA submits a standard 11-part questionnaire to the Justice Department to determine whether an investigation of the Plame Wilson leak is warranted. Among the questions are: “whether the classified data disclosed is accurate”; “the extent of official dissemination of the data”; “whether the data has been the subject of prior official releases”; what effect disclosure has on national security; and “whether the material or portions thereof or enough background data has been published officially or in the press to make an educated speculation on the matter possible.” [Washington Post, 10/1/2003]
The Justice Department authorizes the FBI to open a criminal investigation into leaks of CIA agent Valerie Plame Wilson’s covert identity by sources within the Bush administration (see July 14, 2003, July 30, 2003, and September 16, 2003). [MSNBC, 2/21/2007; Washington Post, 7/3/2007] The investigation is headed by the Justice Department’s counterespionage chief, John Dion. [Vanity Fair, 1/2004]
Questions of Impartiality - Dion is a veteran career prosecutor who has headed the counterespionage section since 2002. He will rely on a team of a half-dozen investigators, many of whom have extensive experience in investigating leaks. However, some administration critics are skeptical of Dion’s ability to run an impartial investigation: he will report to the Justice Department’s Robert McCallum, who is an old friend and Yale classmate of President Bush. Both Bush and McCallum were members of the secret Skull & Bones Society at Yale. Others believe the investigation will be non-partisan. “I believe that the career lawyers in Justice—the people who preceded [Attorney General] John Ashcroft and who will be there after he leaves—will do a nonpolitical investigation, an honest investigation,” says legal ethics specialist Stephen Gillers. “Ashcroft’s sole job is to stay out of it.” [Associated Press, 10/2/2003; Los Angeles Times, 10/2/2003]
CIA Director Filed Request - The request for an investigation (see September 16, 2003) was filed by CIA Director George Tenet; a CIA official says Tenet “doesn’t like leaks.” White House press secretary Scott McClellan says he knows of no leaks about Wilson’s wife: “That is not the way this White House operates, and no one would be authorized to do such a thing. I don’t have any information beyond an anonymous source in a media report to suggest there is anything to this. If someone has information of this nature, then he or she should report it to the Department of Justice.” McClellan calls Joseph Wilson’s charges that deputy White House chief of staff Karl Rove leaked his wife’s name (see August 21, 2003) “a ridiculous suggestion” that is “simply not true.” A White House official says that two administration sources (later revealed to be Rove and Deputy Secretary of State Richard Armitage—see June 13, 2003, July 8, 2003, and 11:00 a.m. July 11, 2003) leaked Plame Wilson’s name to six separate journalists (see Before July 14, 2003). The White House is notoriously intolerant of leaks, and pursues real and supposed leakers with vigor. Wilson says that if the White House did indeed leak his wife’s name, then the leak was part of what he calls “a deliberate attempt on the part of the White House to intimidate others and make them think twice about coming forward.” [Washington Post, 9/28/2003]
White House, Democrats Respond - National Security Adviser Condoleezza Rice says that the White House is willing to have the Justice Department investigate the charges. “I know nothing of any such White House effort to reveal any of this, and it certainly would not be the way that the president would expect his White House to operate,” she tells Fox News. “My understanding is that in matters like this, a question like this is referred to the Justice Department for appropriate action and that’s what is going to be done.” However, some Democrats want more. Senator Charles Schumer (D-NY) says the Justice Department should appoint a special counsel to investigate the charges, since the department has an inherent conflict of interest: “I don’t see how it would be possible for the Justice Department to investigate whether a top administration official broke the law and endangered the life of this agent (see July 21, 2003). Even if the department were to do a thorough and comprehensive investigation, the appearance of a conflict could well mar its conclusions.… Leaking the name of a CIA agent is tantamount to putting a gun to that agent’s head. It compromises her safety and the safety of her loved ones, not to mention those in her network of intelligence assets. On top of that, it poses a serious threat to the national security of this nation.” Representative Richard Gephardt (D-MO) says the White House should find out who is responsible for the leak, and Congress should investigate the matter as well. [Washington Post, 9/28/2003; Fox News, 9/29/2003]
FBI Will Acknowledge Investigation - The FBI officially acknowledges the investigation on September 30 (see September 30, 2003), and informs the White House of the investigation. [New York Times, 2006]
Entity Tags: Richard Gephardt, Karl C. Rove, Richard Armitage, Stephen Gillers, US Department of Justice, Joseph C. Wilson, Valerie Plame Wilson, Scott McClellan, John Dion, Robert McCallum, George W. Bush, Charles Schumer, Condoleezza Rice, Bush administration (43), George J. Tenet, Federal Bureau of Investigation, John Ashcroft
Timeline Tags: Niger Uranium and Plame Outing
Conservative columnist Robert Novak, who outed Valerie Plame Wilson’s covert CIA status in a column in July (see July 14, 2003), learns that the Justice Department is investigating the Plame Wilson leak (see July 30, 2003). Novak immediately calls his lawyer, Lester Hyman. Hyman and his law partner, James Hamilton, urge Novak not to publicly comment on the case. In 2006, Novak will write, “I have followed that advice for the most part.” [Human Events, 7/12/2006]
The Justice Department informs the CIA that its counterespionage section agrees with the agency’s recommendation for an investigation into the Plame Wilson leak (see September 16, 2003). The FBI is already investigating the leak (see September 26, 2003). In 2008, current White House press secretary Scott McClellan will write, “The clear implication was that there was good reason to believe a crime had been committed in the leak of Plame [Wilson]‘s name.” The Justice Department officially informs the White House later this evening. [McClellan, 2008, pp. 179]
Scott McClellan and Karl Rove. [Source: Doug Mills / New York Times]Newly promoted White House press secretary Scott McClellan takes part in his first truly contentious White House press briefing. He will later recall feeling “well prepared,” both from the morning’s less formal “press gaggle” and from a prebriefing preparation session with his staff. He has confirmed from President Bush and White House chief of staff Andrew Card that the White House had no involvement in the Plame Wilson leak (see September 29, 2003). McClellan is authorized to say that anyone involved in the leak “would no longer be in this administration”; Bush has said, “I would fire anybody involved.” McClellan will later write, “I had his full, unequivocal approval.” Bush has also reminded McClellan to ask reporters to come forward if they know who the leakers are. [McClellan, 2008, pp. 187-189]
Leakers 'Would No Longer Be Part of This Administration' - During the briefing, McClellan says that it is “simply not true” that White House political adviser Karl Rove is involved in the leak of CIA agent Valerie Plame Wilson’s identity (see September 26, 2003 and September 27, 2003). He says, after frequent questioning about Bush being “passive” about the possibility of criminal activities in the White House, “If anyone in this administration was involved in it, they would no longer be in this administration.” [White House, 9/29/2003; New York Times, 2006]
Denying Rove's Involvement - McClellan denies again and again that Rove or any other White House official leaked Plame Wilson’s identity to the press. “[T]hat is not the way this White House operates,” he says. “The president expects everyone in his administration to adhere to the highest standards of conduct. No one would be authorized to do such a thing. Secondly, there—I’ve seen the anonymous media reports, and if I could find out who ‘anonymous’ was, it would make my life a whole lot easier.… [A]nyone—anyone—who has information relating to this should report that information to the Department of Justice.” The only information suggesting White House involvement has come from the media, McClellan says. A reporter asks McClellan about his statement earlier in the day that “the president knows” Rove did not leak Plame Wilson’s name. McClellan says: “I’ve said that it’s not true. And I have spoken with Karl Rove.… [Bush is] aware of what I’ve said, that there is simply no truth to that suggestion. And I have spoken with Karl about it.” When pressed about discussing the matter with Rove, McClellan adds, somewhat contradictorily: “I’ve known Karl for a long time, and I didn’t even need to go ask Karl, because I know the kind of person that he is, and he is someone that is committed to the highest standards of conduct.… I have spoken with Karl about this matter and I’ve already addressed it.” McClellan refuses to answer repeated questions about any possible White House investigations or attempts to find the leakers, repeating his answer that any such investigation is a task best left to the Justice Department and repeatedly asking reporters if they have any information about the leaks. He dodges repeated questions about the possibility of Attorney General John Ashcroft appointing a special counsel to investigate the leaks (see December 30, 2003). [White House, 9/29/2003]
'Aggressive' Push Back against Reporters' 'Assumptions' and 'Challenges' - McClellan will later describe his performance at the briefing as “push[ing] back aggressively on assumptions embedded in the questions, and challeng[ing] reporters to produce information suggesting that White House aides were responsible for the leak.” He will write: “Those last words [the statement that anyone caught leaking information ‘would no longer be part of this administration’] would get plenty of media play over the next few years, particularly as important information came to light. With the president’s approval and his oft-stated commitment to honor and integrity embedded in my mind, I could not have been more confident in what I said.” The post-briefing critique with his staff, he will recall, is “very positive.” [McClellan, 2008, pp. 187-189]
White House press secretary Scott McClellan obtains a third confirmation from White House deputy chief of staff Karl Rove (see September 27, 2003) that he had “neither leaked nor condoned leaking [CIA agent Valerie] Plame [Wilson]‘s identity,” as McClellan will write in 2008. McClellan will add, “That day would be the last time I would talk to or hear from Karl about anything specifically related to the leak.” When McClellan asks President Bush about it, as he will later write: “‘Karl didn’t do it,’ the president reflexively said.… The ‘it’ clearly meant disclosing Plame’s identity to reporters.… ‘He told me he didn’t do it,’ the president continued.… Rove had already denied to me that he’d leaked Plame’s name, and now I was learning that he had also told the president that he was not involved.” Both Bush and McClellan catch sight of White House chief of staff Andrew Card, who, in McClellan’s recollection, “had raised his hands above his waist and was now gesturing down with both to indicate to the president that he should keep quiet and stop talking about what was fast becoming a sensitive subject.” Bush says, “with a slight hint of irritation in his voice: ‘What? That’s what Karl told me.’” Card responds: “I know. But you shouldn’t be talking about it with anyone, not even me.” McClellan believes Card is referring to the strictures imposed on the White House staff by the Justice Department investigation (see September 26, 2003 and September 30, 2003). In McClellan’s recollection, Bush has little interest in observing Card’s warning. McClellan tells Bush that though he has already told the press that Rove was not involved in the leak, he will undoubtedly be asked again. Then he asks Card, “Do we know anything more about the investigation?” Card says he knows of nothing new. McClellan will later write, “The discussion in the Oval [Office] that morning—the day we would learn that an investigation was indeed under way—was a moment Andy would later recollect for prosecutors, and that I would be asked to confirm under oath to a federal grand jury.” McClellan confirms the line to take during the morning “press gaggle” (see September 29, 2003): the leak “of classified information is a serious matter,” it should be “pursued to the fullest possible extent,” and “the Department of Justice is the appropriate agency to look into it.” Bush agrees, and adds, “And I hope they find who did it.” McClellan then asks Card, “I am still good to say that nothing has been brought to our attention to suggest White House involvement, beyond what we have read in the papers, right?” Card agrees, and adds, “[L]ast I heard from Al [White House counsel Alberto Gonzales], he did not either.” As McClellan will later write, “We were all on the same page.” [McClellan, 2008, pp. 182-185] Shortly after the FBI launched its investigation (see September 26, 2003), Rove had personally assured Bush that he had not disclosed Plame Wilson’s identity to anyone in the press (see After September 26, 2003).
Columnist Robert Novak, who revealed the secret CIA identity of Valerie Plame Wilson to the public (see July 14, 2003) after learning of her identity from White House officials Richard Armitage (see June 13, 2003) and Karl Rove (see July 8, 2003), calls Rove three days after the Justice Department announced that the CIA had asked it to investigate the source of the Plame Wilson leak (see September 26, 2003). Novak assures Rove that he will protect him from being harmed by the investigation. The conversation between Novak and Rove will later be revealed during statements given to the FBI (see October 8, 2003). Attorney General John Ashcroft will later be told by the FBI that it suspected Rove and Novak of colluding to concoct a cover story to protect Rove (see October and November 2003). Rove will later testify that during the conversation, Novak tells him, “You are not going to get burned,” and, “I don’t give up my sources.” According to Rove, Novak also refers to a 1992 incident in which Rove was fired from the Texas gubernatorial campaign of George W. Bush after the campaign learned that he had been the source for a Novak column criticizing the campaign’s inner workings. Novak assures Rove that nothing like that will happen now. “I’m not going to let that happen to you again,” Novak tells Rove. Rove will testify that he believes Novak means that he will say Rove was not a source for the Plame Wilson information—in essence, that Novak would lie about Rove’s involvement. Rove will call their conversation “curious,” and say he was unsure what to make of it. In 2006, Washington lawyer Stanley Brand says that for potential witnesses to discuss a case with one another “raises the inference that they are comparing each other’s recollections and altering or shaping each other’s testimony.… [There is a] thin line between refreshing each other’s recollections… and suborning someone to lie under oath.” Journalism professor Mark Feldstein will later say that Novak may have stretched the boundaries of journalistic ethics, or broken them entirely, by contacting Rove after the criminal investigation had been announced. “A journalist’s natural instinct is to protect his source,” Feldstein will say. “Were there no criminal investigation, it would have been more than appropriate for a reporter to say to a source, ‘Don’t worry, I’m not going to out you.’ But if there is a criminal investigation under way, you can’t escape the inference that you are calling to coordinate your stories. You go very quickly from being a stand-up reporter to impairing a criminal investigation.” A close friend of Rove’s will say in 2006 that he doubts either Rove or Novak will ever change their stories and testify against the other, regardless of the evidence or the truth of the matter. “These are two people who go way back, and they are going to look out for each other,” the friend says. [National Journal, 5/25/2006]
White House counsel Alberto Gonzales waits 12 hours after receiving formal notification of the FBI’s investigation of the Valerie Plame Wilson identity leak (see September 26, 2003) to formally notify the White House staff of the investigation, including notifying the staff of the Justice Department’s orders not to destroy documents related to the investigation (see September 30, 2003). Senator Charles Schumer (D-NY) and other Democrats are angered by the delay. “Every good prosecutor knows that any delay could give a culprit time to destroy the evidence,” Schumer says. [New York Times, 9/30/2003]
DOJ Says Permissible to Wait - According to a later narrative by White House press secretary Scott McClellan, Gonzales asks the Justice Department if he should inform the White House about the investigation with a formal letter that same evening, or if it would be acceptable to wait until the next morning. The next morning would be fine, the Justice Department says. Gonzales informs the senior staff of the investigation at 7:30 a.m., during the morning meeting. He tells the officials to tell their respective staffs to preserve “all materials that may be related” to the leak, and adds, “The president has directed that we fully cooperate with this investigation.” Gonzales says he will e-mail all White House staff at 8:30 a.m. with specific instructions. [McClellan, 2008, pp. 213-214]
Text of E-Mail - Gonzales sends the following e-mail above his signature: “PLEASE READ: Important Message From Counsel’s Office. We were informed last evening by the Department of Justice that it has opened an investigation into possible unauthorized disclosures concerning the identity of an undercover CIA employee. The department advised us that it will be sending a letter today instructing us to preserve all materials that might be relevant to its investigation. Its letter will provide more specific instructions on the materials in which it is interested, and we will communicate those instructions directly to you. In the meantime, you must preserve all materials that might in any way be related to the department’s investigation. Any questions concerning this request should be directed to Associate Counsels Ted Ullyot or Raul Yanes in the Counsel to the President’s office. The president has directed full cooperation with this investigation.” [Alberto R. Gonzales, 9/30/2003]
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