By William Fisher
Legal authorities are charging that racial profiling is responsible for low-risk Muslim prisoners convicted for crimes the Justice Department intimates are terror-related being held in a segregated unit where their communications are more severely restricted than high-profile inmates such as al-Qaeda operative Zacarias Moussaoui and Unabomber Theodore J. Kaczynski.
The facility is known as the Communications Management Unit (CMU), and is located in the medium security Federal prison at Terre Haute, Indiana. Its occupants are almost entirely Muslims.
Under the CMU program, telephone communications must be conducted using monitored phone lines, be live-monitored by staff, are subject to recording, and must be in English only. All letters must be reviewed by staff prior to delivery or sending. Visits must be non-contact only, also live-monitored, and subject to recording in English. Telephone calls and mail are monitored, the number of phone calls limited and visits are restricted to a total of four hours per month, according to special rules enforced by the Justice Department's Bureau of Prisons.
Most Federal inmates are granted 300 minutes of telephone time per month. At the CMU, the policy is one 15 minute call per week, and this can be reduced in the Warden's discretion to three minutes once a month.
Federal inmates are also ordinarily granted all-day visiting every week or every other week. CMU grants only two hours at a time, twice a month, with no physical contact, with inmate and visitor situated on opposite sides of a plexiglass window.
While critics of the CMU acknowledge that prison officials have the right to monitor inmates’ communications with the outside world, they charge that there are important problems with the CMU, including a lack of public notice about its formation and a lack of clarity about how inmates are chosen to be sent there. They also complain that the unit's communication restrictions are unduly harsh for inmates not considered high security risks.
The unit currently houses 18 convicts, and will be able to accommodate more than five times that many. Moussaoui, Kaczynski, and Atlanta Olympics bomber Eric Rudolph are held at the Government’s “supermax” prison in Florence, Colorado.
Washington lawyer Carmen Hernandez, who represents one of two non-Muslim prisoners and is president-elect of the National Association of Criminal Defense Lawyers, told Truthout that the Justice Department (DOJ) claims it does not consider sending inmates to the unit as a punitive measure. They contend that, as a result, they do not have to provide hearings and other procedures that are required when punishments are to be administered. They claim it's not a punitive measure, but when you start restricting access, it certainly would appear to be punitive. If you're going to restrict people's liberties beyond what they already are, it ought to be for a good, particularized reason, and there does not appear to be one here Hernandez said. "
Hernandez adds, “The primary problem with the opening of (the CMU) is that no one knows the criteria used to send the person imprisoned to that Unit. There was no notice of the move and no opportunity to challenge the basis of the move. Due process ordinarily requires notice and an opportunity to be heard. I do not believe that anyone who was transferred to the CMU received notice of the transfer nor the basis for the transfer.”
Howard Kieffer, a Santa Ana, California, defense lawyer who is head of Federal Defense Associates and an expert on Federal prison rules, has told lawyer/journalist Jennifer Van Bergen that the unit "screams racial profiling."
"It's highly suspect that basically all of the people in this program are of
Middle Eastern descent," Kieffer said.
Civil liberties groups tend to agree. A spokesman for the American Civil Liberties Union says, "If they really believed these people are serious terrorists, they
wouldn't be in this unit. They'd be in Colorado with the Unabomber and the rest of the people that the Bureau of Prisons thinks are serious threats."
Religious discrimination is prohibited by Prison Bureau regulations. The regulation states that Bureau "staff shall not discriminate against inmates on the basis of race, religion, national origin, sex, disability, or political belief. This includes the making of administrative decisions and providing access to work, housing and programs."
According to prison records cited by The Washington Post, current residents at Terre Haute include five members of the so-called Lackawanna Six, a group of Yemeni natives from Upstate New York who attended an al-Qaeda training camp; Randall Royer, a defendant prosecuted as part of the "Virginia jihad" case in Alexandria, Virginia; Enaam M. Arnaout, an Islamic charity director who pleaded guilty to diverting money to Islamic military groups in Bosnia and Chechnya; and Dr. Rafil Dhafir, a Syracuse N.Y. oncologist who was convicted of breaking the US sanctions against Iraq and various white-collar crimes.
The Post reports that the only non-Muslim inmates are an unidentified Colombian militant and Zvonko Busic, 61, former leader of a Croatian extremist group that hijacked a jetliner and set off a bomb that killed a police officer in 1976, according to prison records and defense lawyers. Busic is a client of Attorney Carmen Fernandez.
Dr. Dhafir, 58, an Iraqi-born US citizen from Syracuse, N.Y., was sentenced to 22 years for defrauding charity donors and conspiring to violate US economic sanctions against Saddam Hussein's government. Prior to his trial, politicians including former N.Y. Governor George Pataki trumpeted Dhafir’s arrest as a major victory in the war on terror. But no mention of terror was ever made in the courtroom in which a jury found him guilty of white-collar crimes.
In a recent letter to supporters, Dhafir recounted his abrupt, heavily guarded
transfer to Terre Haute in December and described it as part of "a nationwide
operation to put Muslims/Arabs in one place so that we can be closely monitored
regarding our communications."
"We are all concerned about the close intrusion on our communications," Dhafir
wrote. "We knew all along that our calls, mail and visits were monitored, but
with the new system we will have absolutely no privacy including our visits.
This is causing a great deal of anxiety and resentment especially among those
whose families speak no English."
Dhafir has come to be something of a poster-boy for what his supporters consider over-zealous prosecutions by US Attorneys. One of the most outspoken of the government’s critics is Katherine Hughes of Syracuse, who sat through every day of Dhafir’s 17-week trial.
She reports: “A founding member of the mosque in Syracuse, New York, Dhafir is a leader among the local Muslim community. An Iraqi-born oncologist, he has been a U.S. citizen for almost 30 years. Before his arrest, he and his wife, Priscilla, were very active in Syracuse civic affairs, and Dhafir often spoke at events and on local TV and radio about health and cancer care. In the early 1990s, in direct response to the humanitarian catastrophe caused by the brutal embargo on Iraq, he founded Help the Needy. For 13 years it sent food and aid to civilians suffering under U.N. sanctions imposed on Iraq at the insistence of the U.S. and Britain. Dhafir devoted much of his life to prayer and charity, and government records showed that he donated half his income to charity every year. In his oncology practice he treated those without medical insurance for free, paying for their chemotherapy out of his own pocket.
“Confident in his innocence and the American system of justice, Dhafir refused to accept a plea bargain, and the government piled on charges. When his case finally came to trial 19 months after his arrest, he faced a 60-count indictment of white-collar crime.
“The government employed many tools to inhibit Dhafir’s ability to mount a defense. Despite the facts that Syracuse’s Muslim community put up $2.3 million in bond money and that Dhafir offered to wear an electronic tag, he never was granted bail; his assets were frozen, making it more difficult to hire defense counsel; and he was denied access to both his records and his counsel. The government’s unlimited resources, moreover, allowed it to present its case in minutiae—seven government agencies had investigated Dr. Dhafir for five years before the case came to trial. The limited resources of the defense counsel, on the other hand, enabled it to call but a single witness, who testified for a mere 15 minutes.
“Although state and national officials smeared Dhafir in the press and New York Gov. George Pataki described Dhafir’s case as ‘money laundering…to help terrorist organizations’, local prosecutors successfully petitioned Judge Norman Mordue, the presiding judge who had denied Dhafir bail on four occasions, to prevent the charge of terrorism from being part of the trial. This ruling made his defense a nightmare: throughout the trial the prosecution hinted at more serious charges, but the defense was prohibited from addressing these inflammatory innuendos.” Dhafir is currently attempting to raise funds to obtain his trial transcript to prepare an appeal of his conviction.
Attorney Van Bergen writes that the CMU program was “not implemented through the process required by federal law, which stipulates the public be notified of any new changes to prison programs and be given the opportunity to voice objections. Instead, the program appears to have been ordered and implemented by a senior official at the Department of Justice.”
She elaborates: “In April of last year, the US Federal Bureau of Prisons -- part of the Department of Justice -- proposed a set of strict new regulations and, as required, there was a period of public comment. Human rights and civil liberties groups voiced strong concerns about the constitutionality of the proposed program.
“The program originally proposed was said to be applicable only to terrorists and terrorist-related criminals. The American Civil Liberties Union (ACLU), however, along with a coalition of other civil liberties groups, objected to the language of the regulation as too broad, and potentially applicable to non-terrorists and even to those not convicted of a crime but merely being held as "witnesses, detainees, or otherwise.
“After pushback from civil rights groups, the program appeared to have been dropped by the Prisons Bureau, with coalition groups believing that they had made their case regarding Constitutional rights.” However, she adds, “A similar program, the CMU, was surreptitiously implemented in December 2006.”
According to attorney Howard Kieffer, only three government offices have the authority to issue such changes in federal prison operations, and they all fall within the senior management of the Justice Department: the office of Harley Lappin, the Director of Prisons Bureau, the Office of Legal Counsel, or directly from the office of the US Attorney General, Alberto Gonzales.
Kieffer says, “It is just like the detentions after 9/11," he adds. "It's profiling."
Kieffer believes that the program not only violates federal law but the Constitution as well, saying it abridges the prisoners' right to freedom of expression and association. These inmates are "not able to communicate like other inmates," he said.
Friday, July 27, 2007
EXECUTIVE PRIVELEGE CLAIMS SEEN AS PART OF GOVERNMENT SECRECY PATTERN
By William Fisher
Amid claims of Executive Privilege by President Bush in the firing of US Attorneys, a bipartisan coalition of civil liberties groups has published a new report charging that the Administration’s stonewalling is simply part of a six-year pattern of unprecedented government secrecy.
The report – “Government Secrecy: Decisions Without Democracy 2007” – was prepared by advocacy groups, OpenTheGovernment.org and People For the American Way Foundation. It documents how executive power has dramatically expanded while executive accountability has diminished.
The report charges that “Over the past six years, President Bush has used executive orders to limit use of the Freedom of Information Act and Presidential Records Act, expanded the power to classify information for national security reasons, and created a range of new categories of "sensitive" information. In some cases, the government has gone so far as to reclassify documents that had been available to the general public for many years.”
According to Patrice McDermott, director of OpenTheGovernment.org., "As Congress and the White House clash over this administration's unprecedented secrecy, Americans need to know the full scope of the problem. It is up to us, with and through our elected officials, to preserve our heritage of open and accountable government."
"Increased secrecy is just one of the ways that the Bush Administration has made the government less accountable," said People For the American Way Foundation President Ralph G. Neas.
He added: "This report is an eye-opener even for those who think they already know the extent of the problem. At a time when technology should make it easier than ever to promote openness in government, George W. Bush and Dick Cheney have taken unprecedented steps to cloak themselves in secrecy."
The report includes a preface written by former conservative Republican Congressman Bob Barr and former Clinton White House Chief of Staff John Podesta.
Barr and Podesta charge that “In the aftermath of the 9/11 terrorist attacks, the current administration has laid claim to a dramatic expansion of executive power,
sometimes with congressional approval, as with the Patriot Act, and sometimes
through legally dubious assertions, as with the National Security Agency’s
domestic surveillance program. At the same time, the administration has
routinely withheld information that should be made public, thereby insulating
itself from democratic accountability.”
Secrecy, they write, “has been advanced in a myriad of ways, including excessive classification, brazen assertions of ‘executive privilege’ and ‘state secrets’, new control markings to restrict ‘sensitive but unclassified’ information, and new limits on Freedom of Information Act requests.”
The report acknowledges that the government should keep certain kinds of
information secret. “Our laws recognize the need to protect national security
information, such as intelligence sources and military plans, for example, as
well as personally identifiable data, such as information provided on tax
returns,” Barr and Podesta write.
But they add that the secrecy claims asserted by the administration “go far beyond what is contemplated by the law — and far beyond what is healthy for democracy, which depends on an informed citizenry.”
“Citizens deprived of relevant information cannot participate in their government’s decisions or hold their leaders accountable. Without this check, government officials are more likely to make decisions contrary to the public interest, abuse their authority, and engage in corrupt activities…The administration’s embrace of secrecy comes frustratingly at a time of great opportunity for government openness,” they say.
The Internet and other new information technologies, the report explains, “make it far easier and cheaper for government to disseminate information and interact with the public. Through government Websites, for example, citizens can now access the Congressional Record, track environmental pollution in their neighborhoods, and comment on regulatory proposals.”
But they conclude that, “Instead of building on this foundation…the executive branch is retrenching — in a host of cases, government information previously available through the Internet has been removed.”
A foreword to the new report charges that “Excessive secrecy is the enemy of public accountability and democratic governance. Unfortunately, it is becoming standard operating procedure for many government officials. Vice President Dick Cheney’s recent insistence that his office is not subject to secrecy regulations that apply to the executive branch is just the latest evidence of a systematic campaign to keep information about government activities out of the hands of the American public. Freedom of Information laws are grounded in the recognition that knowledge about the government’s actions is the necessary first step in oversight and accountability.”
It says that governments have “discovered that secrecy is a source of power and an efficient way of covering up the embarrassments, blunders, follies and crimes of the ruling regime. When governments claim that a broad secrecy mandate is essential to protect national security, they mostly mean that it is essential to protect the political interests of the administration. The harm to national security through breaches of secrecy is always exaggerated.”
The new report was written by David Banisar. Banisar is Director of the Freedom of Information Project of Privacy International in London and a Visiting Research Fellow at the UK’s Leeds University law school. Previously he was a Research Fellow at the Kennedy School of Government at Harvard University and co-founder and Policy Director of the Electronic Privacy Information Center in Washington, DC.
The report comes at a time of intense debate about what many believe is the Bush Administration’s obsession with secrecy, placing the Constitutionally enshrined doctrine of separation of powers under extraordinary challenge. While Congress struggles to exercise its oversight responsibilities as one of the country’s three co-equal branches of government, another branch, the Executive, seeks to deny legislators the people and documents lawmakers require to meet those responsibilities.
The current controversy was generated by the firings of nine US Attorneys, but has moved into a number of other areas. One of these is the admission by the former White House Liaison at the DOJ, Monica Goodling, that she “crossed the line” in questioning applicants for career positions about their political beliefs.
Another is the alleged arm-twisting of then-Attorney General John Ashcroft, in his intensive care hospital room following surgery. Then-White House Counsel Alberto Gonzales and then Bush Chief of Staff Andrew Card reportedly went to the attorney general’s hospital room to persuade him to approve the extension of a secret intelligence program that Ashcroft’s deputy had declined to authorize.
Both houses of Congress have been investigating the reasons for the Bush Administration’s firing of the US Attorneys, alleged perjury by Attorney General Gonzales in testimony before the Senate Judiciary Committee, and the role of the White House in engineering the firings.
The White House has claimed executive privilege in refusing to allow former White House Counsel Harriet Miers and current White House Chief of Staff Josh Bolten to respond to subpoenas from the Senate Judiciary Committee.
The House Judiciary Committee voted Wednesday to recommend contempt citations against Miers and Bolten.
The “battle of the branches” continued to escalate during the week. On Thursday,
four Democratic members of the Senate Judiciary Committee asked the Solicitor General of the US, Paul Clement, to appoint a special counsel to investigate possible perjury charges against Gonzales in connection with his testimony about the hospital visit to Ashcroft.
The chairman of the committee, Democratic Senator Patrick Leahy of Maine, did not join with his committee colleagues, instead choosing to offer Gonzales an opportunity to amend his testimony.
The action came after the White House vowed it would instruct the US Attorney in the District of Columbia not to seek a grand jury indictment.
The Solicitor General is part of the Department of Justice, but is meant to be independent of the Attorney General. However, because he is part of the Executive Branch, most observers believe he is unlikely to act on the Senators’ request.
In a further blow in what can only be described as a bad week for the Administration, FBI Director Robert Mueller testified to the House Judiciary Committee on Thursday that the intelligence program Gonzales and Card attempted to have approved by the ailing John Ashcroft was in fact the NSA’s Domestic Surveillance Program, also known as the warrantless wiretaps program.
In testimony before the Senate earlier in the week, Attorney General Gonzales claimed it was another program for which they sought Ashcroft’s approval.
Finally, Sen. Leahy issued subpoenas to White House political adviser Karl Rove and one of his deputies, demanding their testimony by Aug. 2 in the panel's long-running investigation into the firings of the US attorneys and the alleged politicization of the Justice Department.
Knowledgeable sources said it was unlikely the White House would allow Rove’s testimony, thus opening the possibility of additional contempt citations or involvement by the courts.
The issue of excessive secrecy in the Bush Administration also surfaced elsewhere during the past few weeks. Last week, in a report to the president that found serious shortcomings in the process, the government’s Information Security Oversight Office (ISOO) said there were 20.5 million decisions to classify government secrets last year.
More than one in ten documents the ISOO reviewed lacked a basis for classification, and called into question the propriety of the decisions to remove them from public disclosure, the ISOO report said.
The ISOO’s annual review highlighted what it termed "the high error rate," and said it could be addressed only by a process of continuous oversight.
The report came as the office of Vice President Dick Cheney continued to refuse to cooperate with the office of the National Archives. Executive branch agencies give the ISOO data on how much material they classify and declassify. Cheney's office provided the information in 2001 and 2002, but has provided no further information since then.
"The reviews of actual decision making are striking, given the vice president's refusal to report" to the ISOO, said Meredith Fuchs, general counsel at the National Security Archive, a private advocacy group concerned with public disclosure of government secrets.
The White House claimed that an executive order from the president was never intended to define the vice president's office as “an agency.”
In another development shrouded in the issue of government secrecy, a federal appeals court ruled that the government must make available whatever information it has on Guantánamo detainees who are challenging their detention. But it also stated that “highly sensitive information” – likely to be information concerning the torture of detainees – can be withheld from defense attorneys.
The ruling rejected an effort by the Justice Department to limit disclosures to detainees’ lawyers, but opened the way for new legal battles over the government’s reasons for holding the men indefinitely.
The court said it would be impossible to review the military tribunals “without seeing all the evidence, any more than one can tell whether a fraction is more or less than half by looking only at the numerator and not the
denominator.”
At the same time, the Court also issued a new order that substantially curtails the ability of attorneys to work with clients at Guantánamo. Civil rights groups charged that this ruling compromises attorney-client privilege.
“If we don’t have access to key information, how can we trust the government process?” asked attorney Wells Dixon of the Center for Constitutional Rights (CCR), an advocacy group that represents many of the GITMO detainees.
Dixon said the decision “will make it even more difficult for us to represent our clients. We’re extremely disappointed that the Court of Appeals has given its imprimatur to the notion that attorney-client privilege can be abolished with the stroke of a pen.”
The Detainee Treatment Act of 2005 (DTA) allows detainees to challenge their designation as “enemy combatants.” But the CCR and other human rights and legal groups have long maintained that the DTA review process is no substitute for the right to habeas corpus and fair hearings that operate under the rule of law.
The CCR says the CSRT process that is reviewed by the DTA hearings is itself flawed because CSRTs allow the use of secret evidence, torture evidence, and hearsay. They also exclude lawyers from the process, and deny detainees the right to see much of the evidence against them.
Detainees’ lawyers have argued that the military officials running the hearings
may have failed to collect information that might support the detainees’ cases.
The cases were filed shortly before the Supreme Court declined to hear two of the CCR’s habeas petitions. The Court took the position that detainees should first exhaust the review process set up by the DTA. But last month, in an unusual turnaround, the Court reversed itself and decided to hear the two cases during its next session, which begins in October 2007.
The Court’s surprising self-reversal potentially opened the door to scores of cases by detainees challenging the actions of Pentagon tribunals that decide whether terror suspects should be held as enemy combatants. As these cases proceed, their centerpiece is likely to be the confluence of government secrecy, national security, separation of powers, and the preservation of constitutional rights.
Whether related to national security or to a host of domestic issues, concern about excessive government secrecy is unlikely to go away any time soon. For some observers, the current controversy is reminiscent of the final months of the administration of President Richard M. Nixon, when the executive branch battled unsuccessfully to block judicial oversight.
In the wide range of current controversies, virtually all observers doubt that the Executive and Legislative branches of government will ever be able to resolve their differences and that executive privilege and other secrecy-related issues will once again have to be decided by the third branch of government, the Courts.
Amid claims of Executive Privilege by President Bush in the firing of US Attorneys, a bipartisan coalition of civil liberties groups has published a new report charging that the Administration’s stonewalling is simply part of a six-year pattern of unprecedented government secrecy.
The report – “Government Secrecy: Decisions Without Democracy 2007” – was prepared by advocacy groups, OpenTheGovernment.org and People For the American Way Foundation. It documents how executive power has dramatically expanded while executive accountability has diminished.
The report charges that “Over the past six years, President Bush has used executive orders to limit use of the Freedom of Information Act and Presidential Records Act, expanded the power to classify information for national security reasons, and created a range of new categories of "sensitive" information. In some cases, the government has gone so far as to reclassify documents that had been available to the general public for many years.”
According to Patrice McDermott, director of OpenTheGovernment.org., "As Congress and the White House clash over this administration's unprecedented secrecy, Americans need to know the full scope of the problem. It is up to us, with and through our elected officials, to preserve our heritage of open and accountable government."
"Increased secrecy is just one of the ways that the Bush Administration has made the government less accountable," said People For the American Way Foundation President Ralph G. Neas.
He added: "This report is an eye-opener even for those who think they already know the extent of the problem. At a time when technology should make it easier than ever to promote openness in government, George W. Bush and Dick Cheney have taken unprecedented steps to cloak themselves in secrecy."
The report includes a preface written by former conservative Republican Congressman Bob Barr and former Clinton White House Chief of Staff John Podesta.
Barr and Podesta charge that “In the aftermath of the 9/11 terrorist attacks, the current administration has laid claim to a dramatic expansion of executive power,
sometimes with congressional approval, as with the Patriot Act, and sometimes
through legally dubious assertions, as with the National Security Agency’s
domestic surveillance program. At the same time, the administration has
routinely withheld information that should be made public, thereby insulating
itself from democratic accountability.”
Secrecy, they write, “has been advanced in a myriad of ways, including excessive classification, brazen assertions of ‘executive privilege’ and ‘state secrets’, new control markings to restrict ‘sensitive but unclassified’ information, and new limits on Freedom of Information Act requests.”
The report acknowledges that the government should keep certain kinds of
information secret. “Our laws recognize the need to protect national security
information, such as intelligence sources and military plans, for example, as
well as personally identifiable data, such as information provided on tax
returns,” Barr and Podesta write.
But they add that the secrecy claims asserted by the administration “go far beyond what is contemplated by the law — and far beyond what is healthy for democracy, which depends on an informed citizenry.”
“Citizens deprived of relevant information cannot participate in their government’s decisions or hold their leaders accountable. Without this check, government officials are more likely to make decisions contrary to the public interest, abuse their authority, and engage in corrupt activities…The administration’s embrace of secrecy comes frustratingly at a time of great opportunity for government openness,” they say.
The Internet and other new information technologies, the report explains, “make it far easier and cheaper for government to disseminate information and interact with the public. Through government Websites, for example, citizens can now access the Congressional Record, track environmental pollution in their neighborhoods, and comment on regulatory proposals.”
But they conclude that, “Instead of building on this foundation…the executive branch is retrenching — in a host of cases, government information previously available through the Internet has been removed.”
A foreword to the new report charges that “Excessive secrecy is the enemy of public accountability and democratic governance. Unfortunately, it is becoming standard operating procedure for many government officials. Vice President Dick Cheney’s recent insistence that his office is not subject to secrecy regulations that apply to the executive branch is just the latest evidence of a systematic campaign to keep information about government activities out of the hands of the American public. Freedom of Information laws are grounded in the recognition that knowledge about the government’s actions is the necessary first step in oversight and accountability.”
It says that governments have “discovered that secrecy is a source of power and an efficient way of covering up the embarrassments, blunders, follies and crimes of the ruling regime. When governments claim that a broad secrecy mandate is essential to protect national security, they mostly mean that it is essential to protect the political interests of the administration. The harm to national security through breaches of secrecy is always exaggerated.”
The new report was written by David Banisar. Banisar is Director of the Freedom of Information Project of Privacy International in London and a Visiting Research Fellow at the UK’s Leeds University law school. Previously he was a Research Fellow at the Kennedy School of Government at Harvard University and co-founder and Policy Director of the Electronic Privacy Information Center in Washington, DC.
The report comes at a time of intense debate about what many believe is the Bush Administration’s obsession with secrecy, placing the Constitutionally enshrined doctrine of separation of powers under extraordinary challenge. While Congress struggles to exercise its oversight responsibilities as one of the country’s three co-equal branches of government, another branch, the Executive, seeks to deny legislators the people and documents lawmakers require to meet those responsibilities.
The current controversy was generated by the firings of nine US Attorneys, but has moved into a number of other areas. One of these is the admission by the former White House Liaison at the DOJ, Monica Goodling, that she “crossed the line” in questioning applicants for career positions about their political beliefs.
Another is the alleged arm-twisting of then-Attorney General John Ashcroft, in his intensive care hospital room following surgery. Then-White House Counsel Alberto Gonzales and then Bush Chief of Staff Andrew Card reportedly went to the attorney general’s hospital room to persuade him to approve the extension of a secret intelligence program that Ashcroft’s deputy had declined to authorize.
Both houses of Congress have been investigating the reasons for the Bush Administration’s firing of the US Attorneys, alleged perjury by Attorney General Gonzales in testimony before the Senate Judiciary Committee, and the role of the White House in engineering the firings.
The White House has claimed executive privilege in refusing to allow former White House Counsel Harriet Miers and current White House Chief of Staff Josh Bolten to respond to subpoenas from the Senate Judiciary Committee.
The House Judiciary Committee voted Wednesday to recommend contempt citations against Miers and Bolten.
The “battle of the branches” continued to escalate during the week. On Thursday,
four Democratic members of the Senate Judiciary Committee asked the Solicitor General of the US, Paul Clement, to appoint a special counsel to investigate possible perjury charges against Gonzales in connection with his testimony about the hospital visit to Ashcroft.
The chairman of the committee, Democratic Senator Patrick Leahy of Maine, did not join with his committee colleagues, instead choosing to offer Gonzales an opportunity to amend his testimony.
The action came after the White House vowed it would instruct the US Attorney in the District of Columbia not to seek a grand jury indictment.
The Solicitor General is part of the Department of Justice, but is meant to be independent of the Attorney General. However, because he is part of the Executive Branch, most observers believe he is unlikely to act on the Senators’ request.
In a further blow in what can only be described as a bad week for the Administration, FBI Director Robert Mueller testified to the House Judiciary Committee on Thursday that the intelligence program Gonzales and Card attempted to have approved by the ailing John Ashcroft was in fact the NSA’s Domestic Surveillance Program, also known as the warrantless wiretaps program.
In testimony before the Senate earlier in the week, Attorney General Gonzales claimed it was another program for which they sought Ashcroft’s approval.
Finally, Sen. Leahy issued subpoenas to White House political adviser Karl Rove and one of his deputies, demanding their testimony by Aug. 2 in the panel's long-running investigation into the firings of the US attorneys and the alleged politicization of the Justice Department.
Knowledgeable sources said it was unlikely the White House would allow Rove’s testimony, thus opening the possibility of additional contempt citations or involvement by the courts.
The issue of excessive secrecy in the Bush Administration also surfaced elsewhere during the past few weeks. Last week, in a report to the president that found serious shortcomings in the process, the government’s Information Security Oversight Office (ISOO) said there were 20.5 million decisions to classify government secrets last year.
More than one in ten documents the ISOO reviewed lacked a basis for classification, and called into question the propriety of the decisions to remove them from public disclosure, the ISOO report said.
The ISOO’s annual review highlighted what it termed "the high error rate," and said it could be addressed only by a process of continuous oversight.
The report came as the office of Vice President Dick Cheney continued to refuse to cooperate with the office of the National Archives. Executive branch agencies give the ISOO data on how much material they classify and declassify. Cheney's office provided the information in 2001 and 2002, but has provided no further information since then.
"The reviews of actual decision making are striking, given the vice president's refusal to report" to the ISOO, said Meredith Fuchs, general counsel at the National Security Archive, a private advocacy group concerned with public disclosure of government secrets.
The White House claimed that an executive order from the president was never intended to define the vice president's office as “an agency.”
In another development shrouded in the issue of government secrecy, a federal appeals court ruled that the government must make available whatever information it has on Guantánamo detainees who are challenging their detention. But it also stated that “highly sensitive information” – likely to be information concerning the torture of detainees – can be withheld from defense attorneys.
The ruling rejected an effort by the Justice Department to limit disclosures to detainees’ lawyers, but opened the way for new legal battles over the government’s reasons for holding the men indefinitely.
The court said it would be impossible to review the military tribunals “without seeing all the evidence, any more than one can tell whether a fraction is more or less than half by looking only at the numerator and not the
denominator.”
At the same time, the Court also issued a new order that substantially curtails the ability of attorneys to work with clients at Guantánamo. Civil rights groups charged that this ruling compromises attorney-client privilege.
“If we don’t have access to key information, how can we trust the government process?” asked attorney Wells Dixon of the Center for Constitutional Rights (CCR), an advocacy group that represents many of the GITMO detainees.
Dixon said the decision “will make it even more difficult for us to represent our clients. We’re extremely disappointed that the Court of Appeals has given its imprimatur to the notion that attorney-client privilege can be abolished with the stroke of a pen.”
The Detainee Treatment Act of 2005 (DTA) allows detainees to challenge their designation as “enemy combatants.” But the CCR and other human rights and legal groups have long maintained that the DTA review process is no substitute for the right to habeas corpus and fair hearings that operate under the rule of law.
The CCR says the CSRT process that is reviewed by the DTA hearings is itself flawed because CSRTs allow the use of secret evidence, torture evidence, and hearsay. They also exclude lawyers from the process, and deny detainees the right to see much of the evidence against them.
Detainees’ lawyers have argued that the military officials running the hearings
may have failed to collect information that might support the detainees’ cases.
The cases were filed shortly before the Supreme Court declined to hear two of the CCR’s habeas petitions. The Court took the position that detainees should first exhaust the review process set up by the DTA. But last month, in an unusual turnaround, the Court reversed itself and decided to hear the two cases during its next session, which begins in October 2007.
The Court’s surprising self-reversal potentially opened the door to scores of cases by detainees challenging the actions of Pentagon tribunals that decide whether terror suspects should be held as enemy combatants. As these cases proceed, their centerpiece is likely to be the confluence of government secrecy, national security, separation of powers, and the preservation of constitutional rights.
Whether related to national security or to a host of domestic issues, concern about excessive government secrecy is unlikely to go away any time soon. For some observers, the current controversy is reminiscent of the final months of the administration of President Richard M. Nixon, when the executive branch battled unsuccessfully to block judicial oversight.
In the wide range of current controversies, virtually all observers doubt that the Executive and Legislative branches of government will ever be able to resolve their differences and that executive privilege and other secrecy-related issues will once again have to be decided by the third branch of government, the Courts.
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