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Privacy & Profiling

*Cross-posted from The Huffington Post

Yesterday, the Senate Judiciary Committee voted 13-3 to authorize subpoenas focused on the Bush Administration's warrantless wiretapping program. Here is what the authorization read:

Be it resolved that, pursuant to its authority under Rules 25 and 26 of the Standing Rules of the Senate, the Senate Committee on the Judiciary hereby authorizes its Chairman, in consultation with the Ranking Member, to issue subpoenas to: 1) the Honorable Alberto Gonzales, Attorney General of the United States, and 2) the Custodian of Records at the Executive Office of the President, to provide the Committee with all documents related to the Committee's investigation into the Administration's operation of a warrantless domestic surveillance program outside of the provisions of the Foreign Intelligence Surveillance Act, and its legal analysis for this program.

That the vote did not break out along party lines -- Senators Specter, Hatch, and Grassley voted for the subpoenas -- is an indication of how troubling the emerging picture of shoddy lawyering and reckless uses of power that has gradually emerged through testimony from James Comey and others. But why are these documents so important? And what are the chances now that the subpoena will be honored? Will this indeed turn out to be a further step in building accountability over the secret, lawless electronic surveillance of Americans conducted since 9/11?

The background by now is familiar: In September 2001, the President authorized a program of warrantless domestic spying by the National Security Agency, or NSA. Only in December 2005 -- after a year of sitting on the story -- did the Times break that news. Now, two separate congressional investigations, conducted by the Judiciary and Intelligence Committees, are circling in on the facts not only about the NSA program itself--but also about the way it was adopted.

Yesterday's subpoena's focus on the latter issue -- "How did it happen?" -- and less on the "What happened?" question. At first glance, for example, it does not seem that the subpoena cover the issue of how the NSA is now conducting warrantless surveillance. The Administration has said, for example, that the program is now "under" the jurisdiction of the FISA court. But even experts are baffled by precisely what this means. The closed and secretive FISA court is supposed to hear only applications for individual warrants. The nub of the Administration's arguments, however, has always been individualized applications are too cumbersome. The best hypothesis I have seen is that the Administration has persuaded the FISA court to issue an open-ended anticipatory warrant -- which allows the Agency to act first and ask questions later. But we won't know whether the NSA is acting in ways that cast Americans' rights under a shadow even if these subpoenas succeed.

But the "what?" question is not the only one on the table: There is also the "how?" question. How did the NSA get legal authorization within the executive branch to conduct surveillance operations that are in flagrant violation of the 1978 Foreign Intelligence Surveillance Act? Why did the Justice Department in 2004 decide not to continue its endorsement of the program -- the decision that nearly precipitated a mass resignation of executive branch lawyers not seen since Watergate days and that led to the dramatic showdown between Justice Department lawyers and White House consigliores at John Ashcroft's hospital bedside? How exactly had the program been authorized before?

It is these questions -- which go to the integrity of the Government's decision-making process, and the question whether executive branch officials have acted in accordance with their constitutional obligation to "Take Care" that the laws will be enforced that, is now at issue.

Unfortunately, there are solid reasons to believe that the answer is "no." Perhaps the most telling resistance that the Administration has shown is disclosure of the legal opinions that have at various times animated the program. There are two sets of key documents -- and yesterday's subpoena clearly sweeps in both sets.

First, there are the legal opinions and documents on the basis of which the NSA's program was first authorized in 2001. There is a great deal of ambiguity about how precisely this initial authorization happened. But we do know that there must be some paper trail. In 2004, Justice Department lawyers led by Jack Goldsmith looked at some document or other, a document which provoked them into contacting then Acting Attorney General James Comey and persuading him to deny authorization for the program. Given that these were hardly liberal lawyers, the documents they reviewed must have been troubling -- so troubling that they were willing to risk terminating a program the President claimed was key to national security.

What exactly did these original authorizing documents say? We simply don't know. After the Times ran its revelatory story, the Justice Department issued a defense of the wiretapping program that relied in large part on a 2004 Supreme Court case -- so we know that wasn't the justification offered in 2001.

It is also important for us to see the documents prepared in 1004 (listed here in a handy chart prepared by the ever-marvelous Center Democracy and Technology). These documents will equally explain why the initial authority was so improbable that even conservative lawyers were prepared to shut down the program.

Will all of this come out?

Congress's power to issue subpoenas is now without question. Whether those subpoenas are obeyed is quite a different story.

As is the traditional practice, the committee will not issue subpoenas until it has entered negotiations with the White House, and Committee Chair Senator Patrick Leahy has rightly insisted that the committee is seeking "the legal justification and analysis," rather than "intimate operational details." Even when the subpoenas are issued, it is not wholly clear that the Committee will win access to every document. Generally, some compromise is reached. The danger now is that the compromise will leave out vital documents (especially those pertaining to the initial authorization) and also cut out the public.

The precedent is not good. In 1989, the Bush I Justice Department declined to release a legal opinion concerning the power of the FBI to seize suspects overseas without the permission of the country in question, and to bring the suspect back for trial in the United States. Then Attorney General William Barr insisted that the opinion "must remain confidential" even though an earlier memo -- which had concluded the practice was illegal -- had been released. At the end of the day, the compromise reached after subpoenas were issued was that some members of the committee would be allowed to review the memo on behalf of the whole committee -- but there would be no more public disclosure.

This will not do today. The rights of Americans are at stake. The question whether the President's lawyers trampled the Constitution for the sake of an idiosyncratic vision of executive power is at stake. There is simply no reason for legal opinions -- which do not contain "intimate operational details" -- should remain classified. This truly is a case where the public needs to know what has been done in their name, done to them, and done in spite of the laws they have enacted.

Aziz Huq: "Subpoenas and the NSA" (pdf) 

*Cross-posted from The Huffington Post

The United States this week released the transcript of the military hearing for self-proclaimed 9/11 mastermind Khalid Shaikh Mohammed. Initial accounts in the New York Times and Washington Post described the "confession of a top leader" and detailed Mr. Mohammed's participation in a laundry list of terrorist plots. Yet, the confession of Mr. Mohammed (or "KSM" as he is better known) comes as no surprise. He has long claimed a leadership role in al Qaeda and in the 9/11 attacks, as the 9/11 Commission documented. The real story is not what KSM said but how much the administration is fighting to keep secret.

Although he has been in U.S. custody for four years, KSM is one of Guantánamo's newest detainees. In September 2006, he and thirteen, other "high-value" terrorist suspects were transferred from secret CIA prisons or "black sites" to Guantánamo. These CIA prisons were established to implement various "enhanced interrogation techniques," the post-9/11 euphemism for torture, and to preclude any possibility that a court would review the actions of Executive branch officials. As Ron Suskind recounts in The One Percent Doctrine, interrogators subjected to KSM to water-boarding, a technique that simulates drowning, and threatened to rape and kill his family. Other "enhanced interrogation techniques" included "cold cell," where prisoners are left to stand naked in a cell kept near 50 degrees while they are doused with cold water, and "long time standing," where prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours.

The transfer of the 14 "high level" suspects to Guantánamo was prompted by the Supreme Court's June 2006 decision in Hamdan v. Rumsfeld. Until Hamdan, the administration maintained that detainees were all "unlawful combatants" in a global "war on terror," and thus fell outside any legal protections. In Hamdan, the Supreme Court rejected that position, ruling that al Qaeda members and other that suspected terrorists are protected at least by Common Article 3 of the 1949 Geneva Conventions. This provision establishes a baseline of protections for all detainees, prohibiting torture, cruel treatment and other abuse. And, the federal War Crimes Act made officials criminally liable for breaches of Common Article 3. Faced with a rejection of the legal building-block of its CIA "black sites," as well as the potential liability of government interrogators, the President announced in a televised speech to the Nation that he was transferring the remaining secret prisoners to Guantánamo. He then engineered passage of the Military Commissions Act of 2006, which amended the War Crimes Act to help shield CIA and other officials from prosecution for past abuses while stripping the federal courts of habeas review over the cases of detainees held as "enemy combatants" at Guantánamo and elsewhere.

Since then, secrecy has dominated the treatment of KSM and the other ex-ghost detainees, just as it has pervaded the detention of the more than 700 hundred other individuals held at Guantánamo since January 2002.

To begin with, the Combatant Status Review Tribunal hearings (or "CSRTs") of these detainees are closed to the press. Ironically, the military permitted the press to attend the CSRT hearings for Guantánamo detainees in the past. One would have expected the military to want the hearings of the "biggest fish" at Guantánamo to be open to the public to demonstrate the strength of its evidence. And, it is precisely in such cases, that the public's interest to know is strongest. But, apparently, that calculus is different when evidence has been gained through torture.

In any event, opening KSM's CSRT to the press would not have solved the problems of excessive secrecy nor of the kangaroo-court nature of the CSRTs themselves where detainees have no lawyer or right to see the evidence against them. KSM's transcript is heavily redacted because his descriptions of torture and mistreatment were all deemed classified. The publicly available record thus contains no discussion of water-boarding, death threats, or other coercion.

This type of excessive secrecy is hardly unique. In another case, the government has sought to bar the detainee (Majid Khan) from discussing his interrogation at a CIA prisons with his own lawyer. Merely talking about torture, the government's argument goes, jeopardizes national security (even though the government's use of coercive interrogation tactics is no longer a secret). Avoiding embarrassment by suppressing discussion and debate about past illegality contradicts the essential principles of openness and accountability upon which a democracy depends.

Yet, there is another, more pernicious consequence to suppressing the truth. KSM explained at his CSRT hearing that he falsely implicated other detainees as a result of his abuse. These statements are corroborated by those of CIA officials who, according to Suskind, say that KSM later recanted prior statements made under duress. Notably, Mohammad al Qahtani, a Guantánamo detainee subjected to prolonged sleep deprivation, sexual and religious abuse, the use of painful stress positions, and other abuses reportedly implicated 30 other detainees during his interrogations. How many detainees are being held based upon statements made by KSM, al Qahtani, and others that were obtained by torture? If the administration has its way, we will never know because CSRT procedures deny detainees the right to see the evidence, call witnesses, or otherwise demonstrate they are being wrongly held based upon information gained by the rack and the screw.

Reliance upon evidence gained by torture violates our most basic principles. As the Supreme Court put it, imprisoning people based upon coerced statements is "offensive to a civilized system of justice." It is also inherently unreliable because we know from centuries of experience stretching back to the middle ages that prisoners make false statements to avoid extreme physical or mental pain. Indeed, that is precisely why U.S. army guidelines - ignored by this administration - prohibit coercive interrogation techniques, explaining that such techniques "induce the source to say whatever he thinks the interrogator wants to hear."

Clearly, the American public cannot expect the administration to come clean about who it is detaining and why. That is precisely the reason federal courts must retain their historic power to inquire into the facts through the Great Writ of habeas corpus. Later this month, the U.S. Supreme Court will decide whether to review a recent decision by a federal appeals court [pdf] in Washington, D.C. upholding the recent elimination of habeas corpus for Guantánamo detainees. Unless these court-stripping provisions are invalidated, and habeas corpus is preserved, America will for the first time have sanctioned imprisonment based upon torture. No nation committed to human rights and the rule of law can accept that result.

Jonathan Hafetz: "The Cover-Up Continues" (PDF) 

*Cross-posted from The Huffington Post

After the summary defenestration of Donald Rumsfeld and the slow martyrdom of Scooter Libby, the New York Times' call yesterday for the President to fire his Attorney General, Alberto Gonzales, no longer seems unrealistic. Yet the firing of one person, no matter now misguided or sub par their performance as the leader of a critical federal institution might have been, will not solve the deep institutional problems that are becoming increasingly evident in our national security policy.

Calls for Gonzales' exit stem from two seemingly separate scandals, the politicization of U.S. Attorneys, tasked with making independent prosecutorial decisions for federal law violations, and from the FBI's misuse of national security letters, or NSLs. The latter, as Geoffrey Stone explains here are a sort of subpoena that allows the FBI to secure documents from businesses without judicial warrants. Not only has the number of NSLs skyrocketed, their misuse has also gone underreported.

These two stories are, in fact, symptoms of a common problem. Eighty years ago, President Franklin Delano Roosevelt marshaled a group of progressive reformers to establish new federal agencies to confront the Great Depression. FDR's reformers understood the importance of professionalized, empirically-based solutions to the nation's pressing problems. Thus, in addition to tackling the nation's financial woes, they tried, with some success, to create new institutions that would provide expert, non-ideological solutions to real problems.

Now, the FBI was not always the model of disinterested professionalism. It was, after all, J. Edgar Hoover, who led the bugging of Dr. Martin Luther King, Jr., and the efforts to destroy his name and precipitate his suicide. This was just the tip of a larger iceberg of abuses. But the Bureau, and other security agencies, was eventually reined in by Congress at the end of the 1970s, as Fritz Schwarz and I have explained. Many success controls and oversight mechanisms were set in place.

More so than at any other time, we have seen during this Administration a concreted effort to demolish these mechanisms for the FBI and its larger institutional home, the Department of Justice.

For starters, the machinery of justice has been politicized. The civil rights division of the department of justice, for example, has been shanghaied into endorsement of dubious redistricting in Texas and a voter id law in Georgia. Anecdotally, one hears that hiring in the Justice Department is no longer done by career lawyers, as it was from the Ford to the Clinton years. Now it is the responsibility of political appointees.

At the same time that professional standards are under assault, oversight has been evaded or gutted. It is not only the use of NSLs that has not gone reported. Both Congress and the public are still in the dark about a gamut of national security measures that directly impinge on our civil liberties.

Take, for example, the NSA's warrantless surveillance program. Earlier this year, the Government announced that it had got that approved by the FISA Court, a body of judges that is supposed to screen all intelligence search warrants. That sounds comforting, until you realize that the surveillance protocols endorsed by the generally conservative FISA panels may be just as sweeping and open-ended as the past secret programs. Or until you learn that the Administration has insisted that only a handful of members of Congress will be briefed in a limited form that effectively disables legislative oversight.

Another example of worrying non-disclosure concerns a 2002 law, introduced by Senator Patrick Leahy, that requires the Attorney General to disclose any times when the President decides a law is unconstitutional, and thus should be ignored. From the President's own signing statements, and from internal Justice Department memos, we know that the President invokes this power with dangerous regularity, claiming prerogatives far beyond those the Constitution gives him. And yet the Attorney General has never filed a report with Congress on the number of times the executive has declined to comply with federal law.

Combine the assault on professionalism with the refusal of oversight, and you get a dangerous vacuum: decisions about investigation and prosecution are no longer made on the basis of objective criteria. They are used to leverage partisan gain (as decisions about the Texas redistricting and the Georgia id law certainly seemed to be). Or they will be made for even narrower, selfish purposes.

The result is a set of policies that leaves us less safe as well as less free. Concrete proof of this came a couple of weeks ago in another report by the Justice Department's Inspector General (who was also responsible for the revelations about the NSLs). This report concerns the Justice Department's prosecution and reporting of terrorism cases within the United States, and makes disturbing reading. It turns out that various components of the Justice Department have "decentralized and haphazard" ways of reporting terrorism cases. In presenting their records to Congress and the American public, investigators and prosecutors have been systemically overreporting both the number of terrorism cases in the United States, and their successes in these cases.

They do this by treating any prosecution that comes from an investigation vaguely linked with "terrorism" as being a "success" in the War on Terror. For example, there has been a sequence of airport sweeps for undocumented workers, most famously one called "Operation Tarmac." Of course, these operations pulled in dozens of undocumented workers (mostly Hispanic), who were duly prosecuted: All of these prosecutions were counted as "terrorism" cases even though there was never any connection between the individuals concerned and any hint of terrorism. Yet this large investment of federal resources hasn't necessarily made the nation any safer - even as it strokes nativist sentiments.

Of course, the kind of policy makes individual prosecutors look good. And it bulks up the numbers that Justice reports to Congress at the end of each year, justifying greater appropriations. But it also gives a misleading impression of the scope of the terrorist threat in the United States, which in turn is used to underwrite new, and harsher, policies.

Until we have a return to real oversight, and a fresh commitment to professionalism with the Justice Department, we won't be able to get our counter-terrorism policies straight. We will continue to misallocate resources and misjudge the threat. This means holding hearings on how internal oversight within the Justice Department is done. It means examining the functioning of critical institutions like the Office of Legal Counsel, which has an important influence on legal policy. And it means strengthening disclosure laws - and the sanctions for non-disclosure - to ensure a meaningful conversation between the ranches of government.

Getting rid of Gonzales, in short, may be satisfying for some in Congress who have been frustrated by his stonewalling - but it will not solve these systemic problems, which demands wholesale legislative reform as answers.

Aziz Huq: "Removing Gonzales Will Not Remove Systematic Problems" (pdf) 

*Cross-posted from The Huffington Post

As Cenk Uygur has explained, Virgil Goode's slur is a naked attempt to link terrorism, immigration, and Islam in a way that panders to the ugliest kind of nativism. It's worth stepping back too to look at why Goode is so wholly wrong.

For Goode is far wide of the mark when he suggests that Muslims in the States are all immigrants. Indeed, the history of Islam in America, as documented most recently by Genieve Abdo shows how Muslims, have been part of the American story from the very beginning, albeit sometime at the margins.

Muslims have been embroiled in the task of becoming Americans from the very beginning of the nation. I'm certain that Goode is not alone in forgetting that many Muslims were living in the United States before there even was a United States--as slaves. Islam was common in the West Africa (many Muslims were merchants in the region) when that part of the world was a hunting ground for slaves. Records from the Revolutionary era list slave names and reveal many Muslims among those who made the Middle Passage. And Islam was not snuffed out by the horrors of slavery. As late as 1837, a slave narrative by one Charles Ball documents slaves engaged in the five daily prayers that Muslims do.

A second wave of Muslim immigrants came as part of the effort to conquer the American West at the end of the nineteenth century. The first mosque in the United States was built, according to Abdo, in Ross, North Dakota. A commemorative plaque in Quartzsite, Arizona celebrates a Syrian immigrant known as "Hi Jolly" (in fact, Hajji Ali), as "a faithful aid to the U.S. government."

Today, Hajji Ali finds his latter-day counterpart in the FBI agent Ali Soufan: As Lawrence Wright has movingly recounted, Soufan came within inches of unraveling the 9/11 plot, failing largely due to the CIA's failure to share its data hoard. When Goode attacks Muslims as incapable of being Americans, he spits not only on the grave of men such as Hajji Ali who have (quite literally) built America, he also tars the dignity and loyalty of proud government servants such as Soufan.

To say that Muslims or Islam is somehow "alien" to America is thus at least ironic--and at worst the evidence of an ugly and stupid prejudice.

Today, an accurate count of Muslims in the U.S. is hard to find. Estimates ranging from 1.1 million to 7 million. About a third of American Muslims were born in the United States, and many others are non-citizens. Large Muslim communities now live in New York, Chicago, Detroit, and Dallas/Fort Worth-Houston. They include Sunni and Shia; they encompass the covert, the pious and the lapsed. There are no easy stereotypes about the manifold ways of being a Muslim American in 2007.

Indeed, Islamic doctrines more broadly are also far more complex than first appears. As Cenk explained, there is no doubt that there are some pathological ideologies that claim to be Islamic--and these must be marginalized and wiped out. But it should not need repeating that the overwhelming majority of Muslims have no interest in or appetite for political violence. The sheer number of Muslims in Europe and the United States, set against the single-digit infrequency of ideological violence, ought to give the lie to any such claim.

One hundred and fifty years ago, Virgil Goode might have made the same speech - except where he used "Muslim" today, he would have been using "Catholic" one hundred and fifty years ago. The now-defunct "Know Nothing" party panders to fears about Irish and Italian immigration. It invoked the specter of Northeastern port cities being overrun by the papist lower classes. Know Nothing politicians accused Catholics of "ultramontainism," that is owed a first and foremost allegiance to the Vatican, and thus being incapable of being a loyal American.

Just as the Know-Nothings were proved wrong--and have largely been left in history's dustbin--so too will Virgil Goode's smear one day remain only as evidence that America can overcome its darker impulses. Muslims, like any other community of faith that is rooted here, and that has links overseas, have been and can be a part of the diverse and shifting fabric that is today and will be tomorrow America.

Aziz Huq: "Why Virgil Goode is So Wholly Wrong" (pdf)