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Domestic Counterterrorism
By Emily Berman – 06/23/08
The issues were preliminary and the result of any ruling likely to be. But despite its preliminary nature, a simple Monday morning hearing in the D.C. District Court had the feeling of something much more. Perhaps it was the last-minute change of venue to the District of Columbia's ceremonial courtroom in order to accommodate the larger-than-usual expected crowds. Maybe it was the presence of House Judiciary Committee Chairman Representative John Conyers at the Plaintiff's counsel's table and White House Counsel Fred Fielding on the Defendants' side. Or it could have been the momentous constitutional ramification that flow from any ruling in the case.
Whatever it was, the argument in preliminary motions in the House of Representatives Judiciary Committee's suit against former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten to enforce congressional subpoenas issued in the course of the Committee's investigation into the controversial firings of several U.S. Attorneys in late 2006 was not the court's usual Monday morning fare.
And Judge John D. Bates, the presiding judge, at times seemed to wish he was anywhere other than in a position requiring him to reach a ruling on the issues before him. "I didn't volunteer for this," he reminded the parties at one point.
Read the rest of this story ...
Tags: Justice, Liberty & National Security, Checks & Balances, Domestic Counterterrorism
By Emily Berman – 05/30/08
Cross-posted from The New Republic.
Last week's report by the Justice Department's Inspector General reveals that working in the Bush Administration really does mean never having to say you're sorry—or, indeed, anything else you don't want to for that matter. And this applies even when it's your executive branch colleagues who are trying to get you to talk.
The Justice Department's inspector general Glenn A. Fine has issued a thorough and unblinking report about the concerns FBI agents had about the harsh interrogation tactics, possibly rising to the level of torture, that were being used on detainees in Afghanistan, Iraq, and Guantanamo. These were concerns, Fine discovered, that were systematically ignored and discounted by cabinet members and other political appointees. Conspicuously absent from Fine's 437-page opus, however, is any input from one of the most important of those political appointees: former Justice Department leader John Ashcroft. The phrase "Attorney General Ashcroft declined to be interviewed for this review" or its equivalent appears repeatedly throughout the report—often followed by an indication that the report is necessarily incomplete because of it. For instance, due to Ashcroft's absence, we don't know which agency or individual made the decisions regarding what interrogation tactics would be used on specific detainees; whether Ashcroft himself objected to the use of any particular tactics; when he first became aware of his subordinates' concerns; or whether he conveyed those concerns to high-level officials outside the Justice Department and, if so, how those officials responded.
Read entire piece here...
Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism
By Eric Lane – 05/19/08
News that Governor David Paterson has authorized Attorney General Andrew Cuomo to conduct a full-blown investigation into "political interference" by the New York State police is welcomed. Nothing can be more damaging to our democratic political system nor to our law enforcement agencies than harnessing them to influence political outcomes. Think Robert Kennedy, Martin Luther King and the FBI. Think Richard Nixon, Watergate, and the FBI. Cuomo hits the constitutional nail on the head when he observes that "combining politics and police work is a toxic brew." This toxic brew, in fact, is the drink of authoritarian regimes intent on protecting their own power, rather than the democratic political system they swear to defend.
But police interference in politics is not new to New York State. Just over thirty years ago I served as Counsel to the New York State Assembly Task Force on State Police Non-Criminal Files. The task force was established after a newly appointed State Police Superintendent, William Connelie, reported in 1975 that the state police had collected and maintained information on a broad array of what they characterized as "non criminal" individuals and groups. In fact, according to the Task Force Report, these files numbered in the hundreds of thousand. And within in them were well over 600,000 entries. Most of the files dealing with groups or organizations consisted of reports on "meetings, demonstration or planned activities." But the focus often was on ideas. According to the Report, "the Police appeared concerned with any individual or group which was likely to speak publicly...and espouse ideas which challenged the status quo." Ideas seemed to be seen as a precursor to criminal conduct—a "thought crime" if you will—and their proponents as potential criminals. Many individual files also contained personal information such as records of credit checks, and of conversations with employers, neighbors, professors, local government officials and bank officers.
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Tags: Justice, NY Reform, Checks & Balances, Domestic Counterterrorism
By Jonathan Hafetz – 04/15/08
Cross-posted from Slate
Even as criticism of Guantánamo mounts, Guantánamo's underlying hypocrisy endures. That hypocrisy manifested itself again last week in a little-noticed decision by Washington, D.C. District Judge John D. Bates. The decision involves Abdul Hamid Abdul Salam al-Ghizzawi, a Libyan citizen transferred to the base in 2002 after, he alleges, Afghan warlords sold him for bounty. Like the hundreds of other Guantánamo detainees held as "enemy combatants" al-Ghizzawi has never received a hearing on his habeas corpus application. In a recent filing, he complained that the government was refusing to provide him with adequate medical care and had denied him treatment for a severe liver condition that was jeopardizing his health....
> Read entire post here
Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism
By Jonathan Hafetz – 04/07/08
Cross-posted from Slate
John Yoo's recently released March 14, 2003, OLC memo is a tour de force of legal analysis gone bad. The memo has been rightly vilified here and elsewhere for making the president a king and for contributing to a torture culture in America. But even though Yoo's memo has been repudiated, its discredited ideas live on in the detention system he helped create. Worse, Congress has now codified many of Yoo's ideas through the Military Commissions Act of 2006.
The prisoners condemned to legal limbo as "enemy combatants" are the first casualties of Yoo's War on Law. Hundreds of men (many completely innocent) have spent years imprisoned at Guantanamo without habeas corpus or due process because Yoo and others sought to create a prison beyond the law. Guantanamo, in turn, has given rise to a combined system of indefinite detention (through Combatant Status Review Tribunals) and trials by military commissions that depend upon evidence gained through the very coercive interrogation tactics that Yoo sought to legitimize. Indeed, Brig. Gen. Thomas W. Hartman, the commissions' legal adviser, maintains that military judges can even rely on evidence gained by water-boarding, a torture technique sanctioned by Yoo's earlier (and now repudiated) Aug. 1, 2002, legal opinion. In other words, no evidence is too tainted for the Guantanamo commissions to consider.
Meanwhile, my client Ali Saleh Kahlah Almarri, a legal resident alien, is approaching his fifth year in virtual isolation at a Navy brig near Charleston, S.C., based upon Yoo's discredited assertion that the Bill of Rights does not apply to the president's conduct of the "war on terror" inside the United States. Remarkably, the administration continues to defend the proposition that the president can seize terrorist suspects in the country and detain them indefinitely as "enemy combatants" even though its deliberate mooting of the Jose Padilla case in the Supreme Court shows it recognizes that proposition is legally bankrupt....
> Read entire Slate piece here.
Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism
By Emily Berman – 02/14/08
If you watch Congress closely, you might have noticed that
they've been buying a lot of beachfront property in New Mexico over the last few years.
America
doesn't torture, President Bush emphatically declared in 2005. Except
for those three people that we subjected to waterboarding.
The 9/11 Commission was given all the information about the
treatment of detainees that they requested.
Except
those hours and hours of tapes of the interrogation of Abu Zubaydah and Abd al-Rahim al-Nashiri that had been sitting in a safehouse in Thailand.
We're not eliding our constitutional obligations to the
detainees in Guantanamo. Except that we have been denying them the long-established
right to habeas corpus, the right to see evidence offered against them, the
right to present evidence of their own to exonerate themselves.
We're not monitoring domestic communications without a
warrant in violation of long-standing law.
Except for the five years between September 11th and the time the
program was exposed
by the New York Times.
In the past seven years, Congress has heard all of these proclamations by members of the Administration, each of them shown to be based on creative interpretations of the law or possible obstruction of justice. And yet it continues to take the bait-hook,
line, & sinker-either by taking no action at all or by enacting laws that
simply codify the Administration's flawed policies.
The latest in this long line of legislative travesties is
the recently-approved Senate version of a bill to amend the Foreign Intelligence
Surveillance Act (or FISA). The debate
over the measure was long, hard-fought, and characteristically full of outright
misinformation. Here are some examples:
- (1) "If
Congress doesn't pass a FISA bill by Saturday, FISA will expire". Incorrect. The Protect America Act, which eviscerated some
of FISA's civil liberties protections, expires Saturday. FISA, which has served America's
intelligence community well for over 30 years, remains on the books.
- (2) "If
telecommunications companies that cooperated with the administration's
warrantless wiretapping program are not extended retroactive immunity for any
violations of the law they committed, they will not cooperate with intelligence
operations in the future." False.
Without immunity, telecoms might not participate in illegal intelligence operations. Nor should they! It is good public policy to discourage
telecoms from cooperating with illegal surveillance.
- (3) "Requiring
the intelligence community to get authorization for surveillance activity from
the Foreign Intelligence Surveillance Court (FISC) will impede government
efforts to stop terrorists."
Unsubstantiated. From the time it was established in 1979
until 2006, the FISC rejected exactly 5 applications from the executive. There's no reason to think that it would not
continue to approve valid surveillance requests if it is permitted to retain a
role in the approval process.
Instead of recognizing these
arguments for what they are-the politics of fear enlisted to further an agenda
of unprecedented government secrecy and unaccountability-68 Senators have once
again placed their trust in the administration by voting in favor of the
bill. They are trusting that the
surveillance targets, which need not be approved by any independent judicial
voice, are appropriate and are not likely to be Americans. They are trusting that the information
gleaned from such sweeping surveillance power is used properly. They are trusting that the communications of
Americans "inadvertently" captured in the course of surveillance operations are
not retained or used improperly.
By trusting rather than verifying,
they are abdicating their responsibility to protect America from excessive executive
power. By not standing up to this
imperial presidency, they are saying that fearmongering works and that Congress
is becoming irrelevant.
Showing a bit
more savvy and resolve than the Senate, the House has thus far refused to fall
prey to these same tactics and will let the Protect America Act expire on
Saturday. One can only hope that the
House will continue to listen
to the voices of those Americans who have grown tired of having their rights
and the rights of their neighbors trampled by this administration.
Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism
By Maggie Barron – 02/13/08
"White House Victory." The words have a surprising ring these
days given how little capital the administration has left to spend. But these
are exactly the words used to describe yesterday's Senate vote to reauthorize
FISA. Rather than rein in the executive branch's expanding surveillance powers,
the Senate rejected measures that would have protected civil liberties, and
chose to grant immunity
to telecom companies that had provided the government with data, perhaps
illegally. More disturbing still, this vote was not even particularly
contentious; it passed by a wide, 68 to 29, margin. What happened?
Sen. Chris Dodd (D-CT), an opponent of broad surveillance
powers, said
"Unfortunately, those who are advocating this notion that you have to give up
liberties to be more secure are apparently prevailing."
Is it true that Senators are still too scared to stand up to the national security machine for
fear that they will be branded as soft-on-terror? Yes, there has been some
definite bullying going on. In his State of the Union address, President Bush
said that if Congress didn't act immediately to reauthorize FISA, "our ability to track terrorist threats
would be weakened and our citizens will be in greater danger. Congress must
ensure the flow of vital intelligence is not disrupted." The message is clear:
question the government's use of power and you put Americans in danger. We've been hearing it for six years. And the
message seems not to have lost its power over elected officials.
Still, I think there are other forces at play. This is a unique
moment in which the politics of security and the politics of special interests
intersect. Some political issues, like national security, are thought to be
immune from the reach of special interests. But the moment FISA became not just
an issue of domestic spying but also of telecom immunity, the legislation seemed
clouded, like the majority of other issues before Congress, under a shadow of special interest money.
Take Sen. Jay Rockefeller (D-WV), the chairman of the Senate
intelligence committee, whose support of the current FISA legislation was
critical to its passage. He said that the legislation was "the right way to go,
in terms of the security of the nation." But it seems it was also the "right
way to go" in terms of pleasing his contributors. According to the Center
for Responsive Politics, he is one of the top Congressional recipient of telecom
money. Other Senators who supported immunity were also on the list of top
recipients, such as Mary Landrieu (D-LA).
The telecoms have good reason to want immunity AT&T and
other telecoms face 40
lawsuits. And the government worries that without immunity, the telecoms,
having learned that the executive sometimes asks for cooperation with legally
questionable operations, won't cooperate with future spying efforts.
To be fair, Chris Dodd, who introduced the amendment rejecting immunity, also received money
from telecoms, about $10,000 last year. So there is no direct correlation
between a vote on FISA and the money received from telecoms. But wouldn't it be
better if we could be sure that legislative decisions were made on the merits
of the cases at hand, and not to please campaign contributors?
If we are going to restore
checks and balances, Congress must be able to challenge the assumption that
civil liberties and national security are in necessary tension. Unfortunately,
when special interest money comes in to play, it's hard to know for sure whose
interests these Senators are thinking about.
Tags: Justice, Liberty & National Security, Checks & Balances, Domestic Counterterrorism
By Emily Berman – 01/29/08
The
Constitution was crafted to demand compromise. Not only among the three co-equal branches with their checks and balances, but within the Congress as well. Does this make the legislative process frustrating? Absolutely. Inefficient? To be sure. But by design, accommodation of others' concerns and preferences is a necessary element of successful legislation. That is, as long as the proposed compromise is actually a compromise, and not falsely advertised as such. Unfortunately, Senators Arlen Specter and Sheldon Whitehouse's proposed resolution to the debate over whether or not to
grant immunity to telecommunication companies that allegedly assisted the
National Security Agency (NSA) in warrantless (and potentially illegal) wiretapping is exactly that—false advertising.
In the current debate over modifying surveillance law, immunity is perhaps the most contentious issue on the table. The companies clearly want this immunity, since they are being sued by their customers for helping the NSA listen in on customer phone calls. Not surprisingly, the President, the Director of National Security, and many Senators vehemently believe that immunity is appropriate, even necessary, to ensure that telecoms continue to cooperate with the NSA's surveillance efforts. At the same time, civil liberties and libertarian organizations, as well as many Senators, believe that the telecoms should be held accountable for any unlawful actions that they might have taken, and that any civil liberties violations that may have taken place should be documented by the courts.
In light of these entrenched positions, an amendment to the FISA bill under consideration in the Senate offered by Senators Specter and Whitehouse might, on its surface, seem like a poster-child of American Constitutionalism. Rather than either dismissing the suits entirely or letting the suits go forward in their current form, Specter and Whitehouse want Congress to enact a half-measure. The amendment would substitute the government as the defendant in the suits against the telecoms, allowing the suits to move forward, but holding the government accountable for any wrongdoing. In theory, the telecoms would be relieved of the burden of litigation, and the plaintiffs' suits would survive. Compromise. Accommodation. Democracy in action. Right? Not so fast.
Because when substitution is really immunity by another name, it isn't a compromise at all. Then it's just a misnomer. And that's what the substitution proposal is. If it is enacted, the claims against the telecoms would be dismissed, and in their place the plaintiffs would be permitted to plead only certain circumscribed causes of action against the United States in their stead. The provision thus transforms the plaintiffs' existing claims against the telecoms into complaints against the United States and simultaneously narrows the substance of what those complaints may allege.
So the effect of the "compromise" measure is not (as its name implies) to substitute the government as defendant in the existing suits. Rather, it dismisses entire portions of those suits wholesale, forces the plaintiffs to recast their claims in limited terms, and removes entirely any vestige of the fact that the original suits were about what the telecoms did, not what the government did. In short, the litigation no longer will be about whether the telecoms acted unlawfully. Had the plaintiffs wanted to sue the government over these matters (as some have), they would have done so. Their grievance is against the telecoms, and this proposal eliminates any avenue for redress of that grievance.
If pro-immunity members of Congress can muster the support to let the telecoms off the hook and limit accountability for the surveillance program to the government, they can enact an immunity provision. If, on the other hand, Congress prefers to preserve the possibility of a judicial determination of telecom accountability but finds it appropriate to mitigate the effects of that accountability in some way, it has two options. It can either indemnify the telecoms against adverse judgments in the pending suits (after those suits have been permitted to run their natural course), or it can craft a true substitution provision, placing the government in the shoes of the current defendants and making the government liable for the telecoms' actions.
But to label the Specter/Whitehouse amendment as substitution and offer it as a "compromise" is to pervert the meaning of the word and to obscure the intended transparency of the legislative process.
Tags: Justice, Liberty & National Security, Checks & Balances, Domestic Counterterrorism
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