“As tyrannical a claim as we’ve heard in the last decade.” --Glenn Greenwald.
______________________________________________________
“The government needs a FISA warrant to eavesdrop on my phone calls but it needs nothing at all to kill me.”
That’s the essence of the cri de Coeur bubbling up from a varied group of human rights advocacy groups, academics, and public service law firms, as they struggle to understand Obama’s incendiary ruling – a ruling thus far made only by the Executive Branch of government, and not yet overseen by Congress or tested in any court. Even conservative lawyers are suggesting various tweaks and more major changes to legitimize the targeted killings.
To many of the policy’s critics, Obama’s actions reveal an insatiable desire to keep expanding the power of the Executive Branch of Government, and to do so in the opaque manner the President was so critical of when he was campaigning in 2007-8. Obama, it is suggested, also maintains a keen interest in keeping his “get tough on terrorists” image that rose to prominence with the killing of Osama bin Laden.
The very existence of the Obama Administration’s “kill list” -- individuals, including US citizens, who the government says have dedicated themselves to destroying Americans and US interests and who the government says may legally be killed by the government -- has rocked the legal world.
For shock value alone, the heart of the policy is found in the press announcement from the American Civil Liberties Union on the day of the killings. ACLU said:
“Today in Yemen, U.S. air strikes killed American citizen Anwar al-Aulaqi. al-Aulaqi has never been charged with a crime. Last year, the ACLU and Center for Constitutional Rights represented al-Aulaqi’s father in a lawsuit challenging the government’s asserted authority to carry out ‘targeted killings’ of U.S. citizens located far from any armed conflict zone. We argued that such killings violate the Constitution and international law, but the case was dismissed in federal court last December.”
Glenn Greenwald is typical. Here he is reacting to the first lawsuit brought against President Obama in 2010. This lawsuit was thrown out of court when the judge ruled that the plaintiff -- Anwar Awlaki’s father – had “no standing” to ask the court to issue an order enjoining the President from assassinating his son with no due process.
Greenwald wrote: “In court that day, the Obama DOJ raised numerous arguments, all of which were grounded in the claim that courts have no role whatsoever to play in interfering with the President’s decisions over who to assassinate as part of the ‘War on Terror’.”
Most viscerally horrifying to him? The very idea that the President claims the right not only to order Americans killed with no due process, but to do so in total secrecy beyond the reach of the courts, is as tyrannical a claim as we’ve heard in the last decade,” he charged.
The ACLU was devastated to contemplate that ruling as the end of their case. So a new case was filed, this time a partnership between the ACLU and the Center for Constitutional Rights (CCR). "This suit is an effort to enforce the Constitution's most fundamental guarantee, the guarantee of due process," said Jamil Jaffer, deputy legal director of the ACLU, on a conference call with reporters. "Ten years ago extrajudicial killing by the United States was exceptional. Now it's routine."
The lawsuit contends that the United States government violated the constitutional rights of the three men by killing them without court review outside of an active war zone.
The Obama administration has contended that it has the authority to target suspected members of Al Qaeda outside the conflict in Afghanistan and Pakistan, particularly if a given individual poses what it calls an "imminent threat."
But the ACLU-CCR lawyers believe their chances for getting a hearing are better this time than from the first case brought. This is because their clients, in losing their loved ones, suffered a concrete injury that can't be denied, and because of the more frank public acknowledgements by administration officials of the targeted killing program's existence. The latter, the lawyers argue, will make it more difficult for the government to contend the matter is a state secret.
"What they would be saying is, that they have the authority not just to kill American citizens who are deemed to be enemies of the state, and not just that they have the authority to kill citizens without explaining why they've done it, but even that they have the authority to kill citizens without even acknowledging their role in it," Jaffer said. "If the previous administration had proposed a policy of that kind, it's inconceivable that we would have accepted it."
Hina Shamsi of the ACLU told Prism, “The case turns on the killing now having been carried out -- there is no question that there is standing now. This lawsuit also raises different issues and claims as a result”.
Glenn Greenwald said the current case saw the Obama DOJ raising numerous arguments, all of which were grounded in the claim that courts have no role whatsoever to play in interfering with the President’s decisions over whom to assassinate as part of the ‘War on Terror.’
He continued: “Along with several others, I focused on the DOJ’s invocation of the “state secret” privilege because that was most viscerally horrifying: the very idea that the President claims the right not only to order Americans killed with no due process, but to do so in total secrecy beyond the reach of the courts, as tyrannical a claim as we’ve heard in the last decade.”
Along with several others, Greenwald writes, “I focused on the DOJ’s invocation of the “state secret” privilege because that was most viscerally horrifying: “The very idea that the President claims the right not only to order Americans killed with no due courts, as tyrannical a claim as we’ve heard in the last decade.”
This was precisely what Obama critics found so utterly grotesque. The Obama Administration would use the ‘State Secrets’ privilege to deny the court any details of the targeted killing operation. As ACLU lawyer Ben Wizner pointed out, it would be the first time a president – any president – had used the privilege to protect and conceal its own policies.
Wizner suggests that the al-Aulaqi case represents a new chapter in Obama-era state secrets invocation. He told Prism, “This is the first time that I am aware of that the [Obama] administration has invoked state secrets in defense of its own policies.”
The policies Wizner refers to are the administration’s asserted authority to use lethal force away from the battlefield — including against US civilians who have not been charged with any crime.
It is this claim – plus some peripheral claims concerning collateral damages – that is giving apoplexy to human rights defenders. Word from the White House is that the Obama Administration will define as “collateral damage” any military-age males found in the immediate area of the drone attack. These could be shoppers, families on their way to the clinic, kids going to school, just about anything, so long as they were close enough to the action to be killed because of it.
Other advocates were equally incensed. Marjorie Cohn, a professor at the Thomas Jefferson Law School, told Prism, “Drone attacks violate international law. A targeted killing is defined as the “intentional, premeditated, and deliberate use of lethal force. against a specific individual who is not in the physical custody of the perpetrator. Drone strikes are also counterproductive. They breed increased resentment against the United States and lead to the recruitment of more terrorists.”
Amnesty USA came down hard on the Administration. In a special report, it wrote, “The picture slowly emerging gives grounds to conclude that US policies and practices are unlawful, violating the fundamental human right not to be arbitrarily deprived of one's life.”
Another advocacy group, Human Rights First, predicted that “the Obama Administration’s policy on targeted killings will not be seen as legitimate until the Administration makes clear which groups it believes we’re at war with and how it defines who is a legitimate target for killing as part of the U.S. war strategy,” said Human Rights First’s Daphne Eviatar.
The 2001 Authorization for the Use of Military Force allowed the U.S. military to wage war against “those nations, organizations, or persons” who the president determined “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”
“Osama bin Laden is dead and al Qaeda has been decimated and driven from Afghanistan. If the United States is expanding the list of targetable groups and individuals beyond those who were responsible for the 9/11 attacks, it needs to make that clear, and to provide a justification for why such attacks are lawful,” said Eviatar. “So far it has failed to do that. Today, the Attorney General has the opportunity to do just that.”
Elisa Massimino, CEO of Human Rights Watch, called on Obama to immediately clarify that “international law does not permit the targeting of any member of a terrorist group with which we claim to be at war and does not permit the targeting of individuals merely because they are seen to be associating with members of a terrorist group”
The “mechanics” of the drone strikes are still emerging and the Obama administration appears to be on a high-powered vendetta against the very whisteblowers the president pledged to protect. Anonymous sources speculate that “American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials.”
“There is no public record of the operations or decisions of the panel, which is a subset of the White House's National Security Council, several current and former officials said. Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.”
“The panel was behind the decision to add Awlaki, a U.S.-born militant preacher with alleged al Qaeda connections, to the target list.”
There have also been some voices of approval as well as condemnation. One of them belongs to John Brennan, Obama’s chief of counter intelligence. He said:
“Yes, in full accordance with the law — and in order to prevent terrorist attacks on the United States and to save American lives — the United States government conducts targeted strikes against specific Al Qaeda terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones,” Brennan said before the Woodrow Wilson International Center for Scholars.
“The use of armed drones to strike at suspected militants in places like Pakistan and Yemen has grown dramatically under the Obama administration, and the emergence of the new technology — which has sharply reduced the cost and risk of warfare to its operators, making it easier to engage in sporadic combat in far-flung regions — has led to growing concerns both about civilian casualties and about a future in which other countries also acquire drones,” he said.
The United States government has been reluctant to talk openly about its use of drones, apparently in part because foreign governments that granted permission for strikes did so on the condition that the deals would remain secret.
Defending drone strikes as “legal, ethical, and wise,” Brennan said the president had directed officials to be more open about how they “carefully, deliberately and responsibly” decide to kill terrorism suspects — including what he described as “the rigorous standards and process of review to which we hold ourselves today when considering and authorizing strikes against a specific member of Al Qaeda outside the ‘hot’ battlefield of Afghanistan.”
Brennan also said the administration preferred capturing such suspects alive — usually by telling a foreign government where to arrest them — and would authorize a strike only if that was not feasible.
The killing of civilians by drones has fueled anti-American sentiment, especially in Pakistan. The number of such deaths — especially in remote regions where it is difficult for neutral observers to investigate — has been hotly disputed. American officials have described such deaths as rare, while critics have said there are far more than the government acknowledges.
Brennan said American citizens who join Al Qaeda may also be targeted — after extra internal review, but he did not mention the killing of at least three Americans in drone strikes in Yemen last year, including Anwar Al-Awlaki, a radical cleric.
The Obama administration is fighting to avoid disclosing information related to the targeted killing operations under the Freedom of Information Act, including FOIA lawsuits filed by The New York Times.
A number of counterterrorism professionals and academics have proffered limited approval of the kill list policy. Writing in the journal of the American Bar Association, Amos Guiora, an Israeli-American professor of law at The S. J. Quinney College of Law at the University of Utah, and an expert on drone attacks, declares, “While I believe the Al-Awlaki killing lawful, I am deeply troubled by the broad rationale articulated by the Obama Administration. Yes, the Al-Awlaki killing reflects aggressive self-defense coupled with a respect for the obligation to minimize collateral damage. However, the Administration failed to articulate exactly how, beyond mere speech, Al-Awlaki was connected to terrorist activity. The mere ‘likelihood’ of membership in a terrorist organization is highly problematic.”
Comments like these can be seen as constructive efforts to make the targeted kill program respectable in the eyes of the law – a goal that remains murky and confused. With a very long way to go.
And it is difficult to forget that in the course of research for this article, the phrase heard most often was:
“If they want to intercept my phone calls or my emails, they need to get an order from the FISA court. If they just want to kill me, they don’t need to get any orders from anybody.”
Isn’t there just plain something wrong with that construct?
Monday, August 06, 2012
Saturday, August 04, 2012
Censoring the Whistle!
By William Fisher
Republicans on cable news have been hyperventilating about the White House leaking whistleblower information that makes the president look good before the election. Maybe so, maybe no.
But whistleblowers’ information can work two ways. More often than not, news that ought to be disclosed is suppressed by people who worry that it will make the president look bad. And those self-appointed censors -- including high-ranking military officers – need to be held accountable for spewing a barf of lies among the American people.
The practice is known as Propaganda. No, not Public Diplomacy. Propaganda – in which despite the Obama Administration’s pledge of openness and accountability – the public is fed a menu of lies and half-truths designed to morph a bad war into a slightly less bad war, or boast about “victories” in what is becoming a “good war.”
Such was the case when the American general who led a NATO training mission in Afghanistan opposed an investigation into corruption and "Auschwitz-like" conditions at a US-funded hospital in Kabul for political reasons, US military officers told the House of Representatives Committee on Government Oversight last week.
According to an active-duty witness, a three-star general, Lieutenant General William Caldwell, who headed the training mission in Afghanistan, forced him to do a 180 on a request for an inspector general's investigation into the Dawood Khan national military hospital in Kabul.
This signature hospital, funded by the US and dedicated to caring for wounded Afghan soldiers, is entirely run by and supposedly for the Afghan military.
When your members of Congress return from Afghanistan and tell you we’re winning the war, losing it, or doing something in the middle, the chances are they aren’t getting to see much of the war at all. What they’re seeing is what senior officers are describing as a “dog and pony show.”
In the case of the Dawood Khan Hospital, your Congress people – and senior officers assigned to inspect the facility – will get to see the part of the hospital reserved for the favoring eyes of VIPs.
But what was actually seen in an inspection by a retired Air Force surgeon and other officers will curl your toes.
For example, a witness before the House Committee on Oversight, retired colonel Schuyler Geller, a command surgeon attached to the training mission, charged poor patient treatment and corruption. He also confirmed that Gen. Caldwell rejected an inspector general's investigation and had partisan motives in postponing any investigation until after the 2010 election.
Geller told the hearing that when military officials came to visit the hospital they got a "dog and pony show" that covered up the abuse.
What was actually seen by those who ducked the dog and pony show was described by another high-ranking officer, Col. Mark F. Fassl.
At the hearing, he and other officers described the extent of human suffering at the hospital, where the lack of care forced families of soldiers to empty "vats of blood draining from their wounds."
When asked to describe the scene at the hospital, Fassl said it lacked basic facilities. Hygiene was poor and the hospital had no soap, no heat and no means to boil water, he said.
"There were open vats of blood draining out of soldiers' wounds, there were feces on the floor. There were many family members taking care of their loved ones. The family members were emptying these vats of blood to help their patients out."
Fassl said: "When I think about what we were trying to do in Afghanistan, which is build the army and police corps, how could we allow this type of suffering to go on when we should be showing the Afghan citizens that their soldiers matter?"
Last year, the Wall Street Journal reported that “Afghan soldiers often died from neglect or lack of food as some Afghan doctors and nurses demanded bribes for food.” Fassl said he had expected Caldwell to insist on going to the hospital to find out what was going on.
The Committee staff sad Caldwell “eventually agreed to request a limited investigation,” but said it "would not mention the Auschwitz-like conditions at the national military hospital".
Instead it concentrated on the corruption built into the acquisition and diverted deliveries of hospital equipment and supplies, including supplies of medications. Millions of dollars in medications were diverted to Pakistan and elsewhere, creating acute shortages in the Dawood Hospital and driving up the price in other locations.
Congressional Committee officials said the Inspector General has now opened two investigations in response to complaints over the response of Caldwell and a deputy, now Major General Gary Patton.
It said one concerns the Military Whistleblower Protection Act, which stops commanders from restricting subordinates' communication with the inspector general. The second involves allegations of reprisal from a complainant who alleged that Caldwell and Patton cited partisan reasons for requesting postponement of an investigation until after the 2010 elections.
But other witnesses testified that the committee “should be considering a broader issue than conditions at the hospital. What this hearing should be about are attempts to over-control the message. It is about some leadership that puts the best foot forward and relies on the hard built reputation earned by the military to soften any belief that there is a need to see the other foot."
The full, stated mission of the NWC is:
The National Whistleblowers Center (NWC) is an advocacy organization with a 23-year history of protecting the right of individuals to speak out about wrongdoing in the workplace without fear of retaliation. Since 1988, NWC has supported whistleblowers in the courts and before Congress, achieving victories for environmental protection, nuclear safety, government ethics and corporate accountability.
NWC also sponsors several educational and assistance programs, including an online resource center on whistleblower rights, a speaker’s bureau of national experts and former whistleblowers, and a national attorney referral service run by the NWC's sister group the National Whistleblower Legal Defense and Education Fund (NWLDEF). The National Whistleblowers Center is a non-partisan, non-profit organization based in Washington, DC.
Just ponder for a moment all the disclosures that would not have been possible without the help of whistleblowers, who risk their jobs and even their liberty to report on corruption, fraud, and waste.
• The Forensic Justice Project (FJP): After leading a successful six year campaign to reform the FBI's Forensic Crime Lab, the Center's Forensic Justice Project has taken on a review of misconduct in crime labs nationwide. The cases under review have impacted many potential wrongful convictions, resulted in the review of thousands of cases, and given freedom to wrongfully convicted defendants. In addition to reviewing misconduct at state crime labs, the FJP continues to monitor and expose problems within the FBI and FBI crime lab.
• Winning reinstatement for the highest ranking nuclear whistleblower;
• Collecting millions of dollars in damages on behalf of whistleblowers;
• Using the Freedom of Information Act (United States) to force government agencies to release hundreds of thousands of pages of information documenting government misconduct;
• Exposing misconduct at the World Trade Center and the 9/11 crime scenes, including theft by FBI agents and the mishandling of evidence;
• Requiring the FBI to create whistleblower protection for FBI agents for the first time in U.S. history;
• Forcing the FBI to accredit its crime lab;
• Forcing the United States Attorney General to withdraw gag orders on government employees who desired to expose ethical violations to Members of Congress;
• Successfully worked with Congress to ensure passage of critical whistleblower protection laws, such as the No-FEAR Act, the Sarbanes-Oxley Corporate Whistleblower Protection Act, and the Civil Rights Tax Relief Act;
• Forcing President Bush to withdraw his nomination for head of enforcement at the United States Environmental Protection Agency due to former retaliation against whistleblowers;
• Preventing federal agencies from gagging employee speech critical of agency policies;
• Banning "hush money" payments for all environmental and nuclear federal safety cases;
• Exposing the vulnerabilities of U.S. nuclear power plants to airborne terrorist attacks and forcing reforms in the U.S. Nuclear Regulatory Commission;
• Ensuring that military whistleblowers are informed of their rights by the Department of Defense;
• Establishing numerous legal precedents strengthening whistleblower protections for public and private sector employees, including expanding the scope of protected whistleblower speech, enjoining government regulations which restricted whistleblowing, and expanding the use of the Privacy Act to prevent the government from smearing its critics.
Over the years, a growing number of whistleblowers have climbed into the Pantheon of honor for the whistleblowers' group. These people, the organization claims, have made extraordinary contributions and should be recognized.
Here are some of them:
• Mrs. Bunnantine (Bunny) Greenhouse, former chief contracting officer of the United States Army Corps of Engineers, testified in June 2005 before a Democratic Party public committee. Her testimony included allegations against Halliburton of instances of waste, fraud and other abuses with regards to its operations in the Iraq War. After standing up and "blowing the whistle," she was demoted and removed from her position as the chief civilian contracting authority of the Corps. In July 2011, she won close to $1 million in full restitution of lost wages, compensatory damages, and attorney fees.
• Jane Turner. In 1999, former FBI special agent Jane Turner brought to the attention of her management team serious misconduct concerning failures to investigate and prosecute crimes against children in Indian Country and in the Minot, North Dakota community. Turner also reported on misconduct related to the potential criminal theft of property from the 9/11 Ground Zero crime scene in New York City by Minneapolis FBI personnel. Although she was considered one of the best agents working in Indian Country, Turner's twenty-five year career with the FBI was brought to a halt when she was forced from service as retaliation for what FBI management termed as "tarnishing" the image of the FBI.
• Dr. Frederic Whitehurst. Dr. Whitehurst is the Executive Director of the NWC's Forensic Justice Project. Dr. Whitehurst received a Ph.D. in chemistry from Duke University, a J.D. from Georgetown University. He joined the FBI in 1982 and served as a Supervisory Special Agent in the FBI crime lab from 1986-98. He retired after winning the first-ever whistleblower case against the FBI.
• Dr. Marsha Coleman-Adebayo. Dr. Coleman-Adebayo was a senior policy analyst for the United States Environmental Protection Agency (EPA). She founded two employee-rights groups, EPA Employees Against Racial Discrimination and the No FEAR coalition. Through her leadership, the No FEAR Coalition, working closely with Representative James Sensenbrenner, organized a successful grass-roots campaign and obtained overwhelming Congressional support for the "Notification of Federal Employees Anti-discrimination and Retaliation Act." The Act was signed into law by President Bush in 2002.
• Murphy v. IRS: In Murphy v. IRS, whistleblower Marrita Murphy (represented by David K. Colapinto, general counsel for the National Whistleblower Center) challenged the constitutionality of taxing compensatory damages in civil rights/whistleblower cases.
In August, 2006, a unanimous panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled in favor of Ms. Murphy, and declared unconstitutional a special tax Congress had passed in 1996, which targeted civil rights victims who received compensation for emotional distress damages.
However, on July 3, 2007, the U.S. Court of Appeals for the District of Columbia Circuit reversed itself on the case, holding that the IRS can tax damage awards based solely on compensating victims who suffer emotional injuries.
And then, of course, there are the three largest whistleblowers in US history: Julian Assange of Wikileaks fame; Bradley Manning, whose trial will take place some day in the future; and Daniel Ellsberg from the Vietnam era.
What Manning’s egregious treatment was and what fate is likely for Manning and Assange, at one level, has simply become a Washington DC parlor game. But at another level, the outcome of this litigation will tell us a lot about the future of our country.
Hopefully, in the same way that the Washington Post’s Dana Priest’s and Anne Hull’s scathing expose of conditions at The Walter Reed Medical Center resulted in maximum news coverage world-wide and ignited the political will to make substantial changes for the better. And earned the authors Pulitzer prizes.
Maybe we’ll get lucky twice.
Republicans on cable news have been hyperventilating about the White House leaking whistleblower information that makes the president look good before the election. Maybe so, maybe no.
But whistleblowers’ information can work two ways. More often than not, news that ought to be disclosed is suppressed by people who worry that it will make the president look bad. And those self-appointed censors -- including high-ranking military officers – need to be held accountable for spewing a barf of lies among the American people.
The practice is known as Propaganda. No, not Public Diplomacy. Propaganda – in which despite the Obama Administration’s pledge of openness and accountability – the public is fed a menu of lies and half-truths designed to morph a bad war into a slightly less bad war, or boast about “victories” in what is becoming a “good war.”
Such was the case when the American general who led a NATO training mission in Afghanistan opposed an investigation into corruption and "Auschwitz-like" conditions at a US-funded hospital in Kabul for political reasons, US military officers told the House of Representatives Committee on Government Oversight last week.
According to an active-duty witness, a three-star general, Lieutenant General William Caldwell, who headed the training mission in Afghanistan, forced him to do a 180 on a request for an inspector general's investigation into the Dawood Khan national military hospital in Kabul.
This signature hospital, funded by the US and dedicated to caring for wounded Afghan soldiers, is entirely run by and supposedly for the Afghan military.
When your members of Congress return from Afghanistan and tell you we’re winning the war, losing it, or doing something in the middle, the chances are they aren’t getting to see much of the war at all. What they’re seeing is what senior officers are describing as a “dog and pony show.”
In the case of the Dawood Khan Hospital, your Congress people – and senior officers assigned to inspect the facility – will get to see the part of the hospital reserved for the favoring eyes of VIPs.
But what was actually seen in an inspection by a retired Air Force surgeon and other officers will curl your toes.
For example, a witness before the House Committee on Oversight, retired colonel Schuyler Geller, a command surgeon attached to the training mission, charged poor patient treatment and corruption. He also confirmed that Gen. Caldwell rejected an inspector general's investigation and had partisan motives in postponing any investigation until after the 2010 election.
Geller told the hearing that when military officials came to visit the hospital they got a "dog and pony show" that covered up the abuse.
What was actually seen by those who ducked the dog and pony show was described by another high-ranking officer, Col. Mark F. Fassl.
At the hearing, he and other officers described the extent of human suffering at the hospital, where the lack of care forced families of soldiers to empty "vats of blood draining from their wounds."
When asked to describe the scene at the hospital, Fassl said it lacked basic facilities. Hygiene was poor and the hospital had no soap, no heat and no means to boil water, he said.
"There were open vats of blood draining out of soldiers' wounds, there were feces on the floor. There were many family members taking care of their loved ones. The family members were emptying these vats of blood to help their patients out."
Fassl said: "When I think about what we were trying to do in Afghanistan, which is build the army and police corps, how could we allow this type of suffering to go on when we should be showing the Afghan citizens that their soldiers matter?"
Last year, the Wall Street Journal reported that “Afghan soldiers often died from neglect or lack of food as some Afghan doctors and nurses demanded bribes for food.” Fassl said he had expected Caldwell to insist on going to the hospital to find out what was going on.
The Committee staff sad Caldwell “eventually agreed to request a limited investigation,” but said it "would not mention the Auschwitz-like conditions at the national military hospital".
Instead it concentrated on the corruption built into the acquisition and diverted deliveries of hospital equipment and supplies, including supplies of medications. Millions of dollars in medications were diverted to Pakistan and elsewhere, creating acute shortages in the Dawood Hospital and driving up the price in other locations.
Congressional Committee officials said the Inspector General has now opened two investigations in response to complaints over the response of Caldwell and a deputy, now Major General Gary Patton.
It said one concerns the Military Whistleblower Protection Act, which stops commanders from restricting subordinates' communication with the inspector general. The second involves allegations of reprisal from a complainant who alleged that Caldwell and Patton cited partisan reasons for requesting postponement of an investigation until after the 2010 elections.
But other witnesses testified that the committee “should be considering a broader issue than conditions at the hospital. What this hearing should be about are attempts to over-control the message. It is about some leadership that puts the best foot forward and relies on the hard built reputation earned by the military to soften any belief that there is a need to see the other foot."
The full, stated mission of the NWC is:
The National Whistleblowers Center (NWC) is an advocacy organization with a 23-year history of protecting the right of individuals to speak out about wrongdoing in the workplace without fear of retaliation. Since 1988, NWC has supported whistleblowers in the courts and before Congress, achieving victories for environmental protection, nuclear safety, government ethics and corporate accountability.
NWC also sponsors several educational and assistance programs, including an online resource center on whistleblower rights, a speaker’s bureau of national experts and former whistleblowers, and a national attorney referral service run by the NWC's sister group the National Whistleblower Legal Defense and Education Fund (NWLDEF). The National Whistleblowers Center is a non-partisan, non-profit organization based in Washington, DC.
Just ponder for a moment all the disclosures that would not have been possible without the help of whistleblowers, who risk their jobs and even their liberty to report on corruption, fraud, and waste.
• The Forensic Justice Project (FJP): After leading a successful six year campaign to reform the FBI's Forensic Crime Lab, the Center's Forensic Justice Project has taken on a review of misconduct in crime labs nationwide. The cases under review have impacted many potential wrongful convictions, resulted in the review of thousands of cases, and given freedom to wrongfully convicted defendants. In addition to reviewing misconduct at state crime labs, the FJP continues to monitor and expose problems within the FBI and FBI crime lab.
• Winning reinstatement for the highest ranking nuclear whistleblower;
• Collecting millions of dollars in damages on behalf of whistleblowers;
• Using the Freedom of Information Act (United States) to force government agencies to release hundreds of thousands of pages of information documenting government misconduct;
• Exposing misconduct at the World Trade Center and the 9/11 crime scenes, including theft by FBI agents and the mishandling of evidence;
• Requiring the FBI to create whistleblower protection for FBI agents for the first time in U.S. history;
• Forcing the FBI to accredit its crime lab;
• Forcing the United States Attorney General to withdraw gag orders on government employees who desired to expose ethical violations to Members of Congress;
• Successfully worked with Congress to ensure passage of critical whistleblower protection laws, such as the No-FEAR Act, the Sarbanes-Oxley Corporate Whistleblower Protection Act, and the Civil Rights Tax Relief Act;
• Forcing President Bush to withdraw his nomination for head of enforcement at the United States Environmental Protection Agency due to former retaliation against whistleblowers;
• Preventing federal agencies from gagging employee speech critical of agency policies;
• Banning "hush money" payments for all environmental and nuclear federal safety cases;
• Exposing the vulnerabilities of U.S. nuclear power plants to airborne terrorist attacks and forcing reforms in the U.S. Nuclear Regulatory Commission;
• Ensuring that military whistleblowers are informed of their rights by the Department of Defense;
• Establishing numerous legal precedents strengthening whistleblower protections for public and private sector employees, including expanding the scope of protected whistleblower speech, enjoining government regulations which restricted whistleblowing, and expanding the use of the Privacy Act to prevent the government from smearing its critics.
Over the years, a growing number of whistleblowers have climbed into the Pantheon of honor for the whistleblowers' group. These people, the organization claims, have made extraordinary contributions and should be recognized.
Here are some of them:
• Mrs. Bunnantine (Bunny) Greenhouse, former chief contracting officer of the United States Army Corps of Engineers, testified in June 2005 before a Democratic Party public committee. Her testimony included allegations against Halliburton of instances of waste, fraud and other abuses with regards to its operations in the Iraq War. After standing up and "blowing the whistle," she was demoted and removed from her position as the chief civilian contracting authority of the Corps. In July 2011, she won close to $1 million in full restitution of lost wages, compensatory damages, and attorney fees.
• Jane Turner. In 1999, former FBI special agent Jane Turner brought to the attention of her management team serious misconduct concerning failures to investigate and prosecute crimes against children in Indian Country and in the Minot, North Dakota community. Turner also reported on misconduct related to the potential criminal theft of property from the 9/11 Ground Zero crime scene in New York City by Minneapolis FBI personnel. Although she was considered one of the best agents working in Indian Country, Turner's twenty-five year career with the FBI was brought to a halt when she was forced from service as retaliation for what FBI management termed as "tarnishing" the image of the FBI.
• Dr. Frederic Whitehurst. Dr. Whitehurst is the Executive Director of the NWC's Forensic Justice Project. Dr. Whitehurst received a Ph.D. in chemistry from Duke University, a J.D. from Georgetown University. He joined the FBI in 1982 and served as a Supervisory Special Agent in the FBI crime lab from 1986-98. He retired after winning the first-ever whistleblower case against the FBI.
• Dr. Marsha Coleman-Adebayo. Dr. Coleman-Adebayo was a senior policy analyst for the United States Environmental Protection Agency (EPA). She founded two employee-rights groups, EPA Employees Against Racial Discrimination and the No FEAR coalition. Through her leadership, the No FEAR Coalition, working closely with Representative James Sensenbrenner, organized a successful grass-roots campaign and obtained overwhelming Congressional support for the "Notification of Federal Employees Anti-discrimination and Retaliation Act." The Act was signed into law by President Bush in 2002.
• Murphy v. IRS: In Murphy v. IRS, whistleblower Marrita Murphy (represented by David K. Colapinto, general counsel for the National Whistleblower Center) challenged the constitutionality of taxing compensatory damages in civil rights/whistleblower cases.
In August, 2006, a unanimous panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled in favor of Ms. Murphy, and declared unconstitutional a special tax Congress had passed in 1996, which targeted civil rights victims who received compensation for emotional distress damages.
However, on July 3, 2007, the U.S. Court of Appeals for the District of Columbia Circuit reversed itself on the case, holding that the IRS can tax damage awards based solely on compensating victims who suffer emotional injuries.
And then, of course, there are the three largest whistleblowers in US history: Julian Assange of Wikileaks fame; Bradley Manning, whose trial will take place some day in the future; and Daniel Ellsberg from the Vietnam era.
What Manning’s egregious treatment was and what fate is likely for Manning and Assange, at one level, has simply become a Washington DC parlor game. But at another level, the outcome of this litigation will tell us a lot about the future of our country.
Hopefully, in the same way that the Washington Post’s Dana Priest’s and Anne Hull’s scathing expose of conditions at The Walter Reed Medical Center resulted in maximum news coverage world-wide and ignited the political will to make substantial changes for the better. And earned the authors Pulitzer prizes.
Maybe we’ll get lucky twice.
Wednesday, August 01, 2012
Oh What a Tangled Web We Weave When First We Practice to Deceive
By William Fisher
This blog post really ought to be written by Andy Borowitz, a very funny guy who gets off on finding incontrovertible evidence that Kafka is alive and well and hiding out in the wheel well of Air Force One.
Last week, if you were very, very quiet, you could hear Mischievous Franz chuckling at the notion that his elliptical Kafkaesque prose was being wrapped in the stale burrito of bureaucratic word-speak, ensuring that neither literati nor Joe SixPak would have the foggiest idea what was being said to whom by whom about what and for what reason.
Do all these words have a point?
Yes, they do. They’re about the government’s No-Fly-List. Here’s what the ACLU had to say:
First, the good news. Last week, the Ninth Circuit Court of Appeals unanimously ruled that the ACLU’s lawsuit challenging the U.S. government’s secretive No Fly List should go forward. Here’s part of the ACLU’s press release:
“This decision is a true victory for our clients and all Americans,” said Nusrat Choudhury, Staff Attorney with the ACLU National Security Project. So now comes the not-so-good news.
He explained: “More than two years ago, 15 U.S. citizens and permanent residents, including four military veterans, were denied boarding on planes. None of them know why this happened. And no government authority has ever given them an explanation or a fair chance to clear their names.”
At that time, Choudhury said, “the ACLU filed a lawsuit on their behalf. It challenged both the placement of these Americans on the No Fly List and the government’s failure to afford them a fair redress process after depriving them of their right to travel. We sued the logical government agencies: the FBI and its subagency, the Terrorist Screening Center, which creates and controls the No Fly List.” Please try to remember that.
But, in May 2011, Choudhury explains, “the district court in Portland dismissed the case for lack of jurisdiction. The Court ruled that we should have sued the Transportation Security Administration, (TSA) which administers the (woefully deficient) redress process for travelers denied boarding on planes.” Please try to remember that factoid also.
Not being easily intimidated, the ACLU appealed to the Ninth Circuit Court of Appeals.
At the hearing, Choudhury said he argued that “the district court decision was wrong because TSA doesn’t have the power to put people on, or take them off, the No Fly List—that’s the job of the FBI and TSC. I also argued that placing our clients on the No Fly List without providing them any opportunity to confront and rebut the “evidence” against them is unconstitutional.” I hope you’re remembering all this,
“As the ACLU previously blogged, the government attorney astonishingly refused to concede that federal courts even possess the authority to remove names from the No Fly List. Taken to its logical conclusion, the government’s position would mean that no court would be able to correct the wrongful placement of American citizens and permanent residents on the No Fly List even if these people got to court by jumping through all of the hoops that the government argued should be put in front of them.”
According to the government, “all a person could do is file a complaint with the existing TSA redress process, and simply hope that some government official would correct a mistake or change her mind. This position is untenable, especially because we know that government watch lists are bloated and include the names of innocent people.”
Last week’s Ninth Circuit decision “marked a first and important step towards putting a check on the government’s ability to blacklist its citizens without recourse.”
“The Ninth Circuit reversed the district court and permitted our lawsuit to go forward.” It affirmed our position that the government had “concede[d] that TSC decides both whether travelers are placed on the List and whether they stay on it,” and found that it would be “futile” to order TSA to remove the plaintiffs names or give them a chance to clear their names from the No Fly List.
“It also recognized that the government failed to provide a good answer to a question of tremendous importance to our clients and all Americans:
At oral argument, the government was stymied by what we considered a relatively straightforward question: what should United States citizens and legal permanent residents do if they believe they have been wrongly included on the No-Fly List?”
“The Ninth Circuit reached the right answer: federal district courts can adjudicate citizens’ and permanent residents’ challenges to their placement on the No Fly List and their demand for a fair redress process.”
“This decision means that a court will finally consider our clients’ claims that a secret government watch list that denies Americans the ability to fly without giving them an explanation or fair chance to clear their names violates the Constitution.”
How does all this official two-ing and fro-ing affect our citizens?
Some can’t go abroad. Some are abroad and can’t come home. They miss important meetings where their veterans’ benefits will be discussed. They are separated from their families and their lawyers. They are incurring substantial legal and other costs for which they will not be reimbursed.
So maybe appealing to the idiosyncratic 9th Circuit Court of Appeals is just what the doctor ordered.
Until the Government invokes the State Secrets Privilege.
This blog post really ought to be written by Andy Borowitz, a very funny guy who gets off on finding incontrovertible evidence that Kafka is alive and well and hiding out in the wheel well of Air Force One.
Last week, if you were very, very quiet, you could hear Mischievous Franz chuckling at the notion that his elliptical Kafkaesque prose was being wrapped in the stale burrito of bureaucratic word-speak, ensuring that neither literati nor Joe SixPak would have the foggiest idea what was being said to whom by whom about what and for what reason.
Do all these words have a point?
Yes, they do. They’re about the government’s No-Fly-List. Here’s what the ACLU had to say:
First, the good news. Last week, the Ninth Circuit Court of Appeals unanimously ruled that the ACLU’s lawsuit challenging the U.S. government’s secretive No Fly List should go forward. Here’s part of the ACLU’s press release:
“This decision is a true victory for our clients and all Americans,” said Nusrat Choudhury, Staff Attorney with the ACLU National Security Project. So now comes the not-so-good news.
He explained: “More than two years ago, 15 U.S. citizens and permanent residents, including four military veterans, were denied boarding on planes. None of them know why this happened. And no government authority has ever given them an explanation or a fair chance to clear their names.”
At that time, Choudhury said, “the ACLU filed a lawsuit on their behalf. It challenged both the placement of these Americans on the No Fly List and the government’s failure to afford them a fair redress process after depriving them of their right to travel. We sued the logical government agencies: the FBI and its subagency, the Terrorist Screening Center, which creates and controls the No Fly List.” Please try to remember that.
But, in May 2011, Choudhury explains, “the district court in Portland dismissed the case for lack of jurisdiction. The Court ruled that we should have sued the Transportation Security Administration, (TSA) which administers the (woefully deficient) redress process for travelers denied boarding on planes.” Please try to remember that factoid also.
Not being easily intimidated, the ACLU appealed to the Ninth Circuit Court of Appeals.
At the hearing, Choudhury said he argued that “the district court decision was wrong because TSA doesn’t have the power to put people on, or take them off, the No Fly List—that’s the job of the FBI and TSC. I also argued that placing our clients on the No Fly List without providing them any opportunity to confront and rebut the “evidence” against them is unconstitutional.” I hope you’re remembering all this,
“As the ACLU previously blogged, the government attorney astonishingly refused to concede that federal courts even possess the authority to remove names from the No Fly List. Taken to its logical conclusion, the government’s position would mean that no court would be able to correct the wrongful placement of American citizens and permanent residents on the No Fly List even if these people got to court by jumping through all of the hoops that the government argued should be put in front of them.”
According to the government, “all a person could do is file a complaint with the existing TSA redress process, and simply hope that some government official would correct a mistake or change her mind. This position is untenable, especially because we know that government watch lists are bloated and include the names of innocent people.”
Last week’s Ninth Circuit decision “marked a first and important step towards putting a check on the government’s ability to blacklist its citizens without recourse.”
“The Ninth Circuit reversed the district court and permitted our lawsuit to go forward.” It affirmed our position that the government had “concede[d] that TSC decides both whether travelers are placed on the List and whether they stay on it,” and found that it would be “futile” to order TSA to remove the plaintiffs names or give them a chance to clear their names from the No Fly List.
“It also recognized that the government failed to provide a good answer to a question of tremendous importance to our clients and all Americans:
At oral argument, the government was stymied by what we considered a relatively straightforward question: what should United States citizens and legal permanent residents do if they believe they have been wrongly included on the No-Fly List?”
“The Ninth Circuit reached the right answer: federal district courts can adjudicate citizens’ and permanent residents’ challenges to their placement on the No Fly List and their demand for a fair redress process.”
“This decision means that a court will finally consider our clients’ claims that a secret government watch list that denies Americans the ability to fly without giving them an explanation or fair chance to clear their names violates the Constitution.”
How does all this official two-ing and fro-ing affect our citizens?
Some can’t go abroad. Some are abroad and can’t come home. They miss important meetings where their veterans’ benefits will be discussed. They are separated from their families and their lawyers. They are incurring substantial legal and other costs for which they will not be reimbursed.
So maybe appealing to the idiosyncratic 9th Circuit Court of Appeals is just what the doctor ordered.
Until the Government invokes the State Secrets Privilege.
Tuesday, July 31, 2012
Protecting Legitimate Secrets or Concealing Embarrassment?
By William Fisher
Scott Horton, who is also a lawyer, is one of the most astute chroniclers of our world. He writes for Harper’s Magazine and believes that National Security Letters are “one of the creepier weapons in the arsenal of the national-security state.”
This reporter agrees, but finds another of our government ‘s legal games arguably more reprehensible. It’s known as the State Secrets Privilege (SSP). It’s an evidentiary rule, which means that it can be invoked by the government as grounds for excluding some discreet item of evidence if its disclosure would compromise national security. It does not require review from a judge. In a large sense, it’s your government saying, “We know the evidence. We prepared the affidavit. Trust us.”
Virtually no one would deny a government – any government – the right to keep secret those things that are likely to expose the legitimate sources and methods used by the government to protect the country and its people. But there is a huge difference between ‘we know the evidence’ and ‘trust us.’ And there is a fine line between that objective and concealment to avoid embarrassing truths. Over many years, we’ve learned, as the man said, Trust but Verify. And in court, the only man who can verify is the judge.
First the George W. Bush Administration, and now the Barack Obama Administration, have used the SSP in an entirely different way. They have invoked the privilege to get judges – who have not seen the evidence -- to throw entire lawsuits out of court, because the government argues that any mention whatever of any of the details of the case would have a disastrous effect on the well-being of all Americans.
Like this case:
Khaled el-Masri arguably holds the world’s record of unsuccessful attempts to get his “day in court.” He has knocked on courtroom doors all over the US and some overseas venues as well, and has each time been rebuffed.
El-Masri, a German citizen, alleged that he was kidnapped in 2004, “rendered” to Albania and then to Afghanistan, where he was falsely held by the CIA for several months – which the CIA acknowledges – and was beaten, drugged, and subjected to various other inhumane activity while in captivity.
They then drove him to the capitol’s Skopje airport and handed him to a CIA rendition team who flew him to Kabul as part of the U.S. “Extraordinary Rendition” program, where he was detained for four months. The government of Macedonia denies any involvement in his abduction.
He was ultimately released by the CIA on a deserted road in Macedonia in the dead of night with no charge ever being brought against him by the U.S. government or anyone else.
In 2005, the American Civil Liberties Union sued former CIA Director George Tenet and three U.S.-based aviation corporations that owned or operated the aircraft used by the CIA to render El-Masri to Afghanistan. The lawsuit charged Tenet and others with violating the U.S. constitution and universal human rights laws.
In May 2006, El-Masri’s court case was dismissed based on invocation of the “state secrets privilege” by the CIA. The U.S. District Court dismissed his case because, according to the court, the simple fact of holding proceedings would jeopardize state secrets, as claimed by the CIA.
What was the reason for the government’s secrecy? Was it really national security? Or was it to spare government officials the embarrassment of admitting they made a huge error of mistaken identity? We’ll probably never know.
Or this case?
Arar v. Ashcroft is a 2010 federal lawsuit challenging the rendition of a Canadian citizen to Syria, by the U.S. government, where he was tortured, forced to falsely confess, and released after one year without ever being charged. The Canadian was Maher Arar, publisher of this magazine.
Arar, a Syrian-born, Canadian citizen was detained during a layover at J.F.K. Airport in September 2002 on his way home to his family in Canada. He was held in solitary confinement for nearly two weeks, interrogated, and denied meaningful access to a lawyer.
The Bush administration labeled him a member of Al Qaeda, and rendered him, not to Canada, his home and country of citizenship, but to Syrian intelligence authorities renowned for torture. The plaintiff sued for a jury trial, compensatory and punitive damages, and a declaration that the actions of Defendants were illegal and violated Arar’s constitutional, civil, and international human rights.
The Canadian Government conducted a two-year investigation of the case and concluded that it too was guilty of mistaken identity. It apologized for passing inaccurate information to the American authorities and paid Arar substantial monetary damages.
The US Government refused even to discuss the case, much less apologize. During a Congressional hearing, then Secretary of State Condoleezza Rice offered, “this case was not handled well.”
The Government’s silence also extended to US courts of law, where the government invoked the SSP to keep secret the details of Arar’s treatment. And the courts, by and large, agreed.
Arar pursued his claims through various US courts. On June 14, 2010, the Supreme Court denied Mr. Arar’s petition for certiorari to review the Second Circuit Court of Appeals' en banc decision dismissing his case.
That ended Arar’s case in US courts, where once again judges sided with the unknown in the form of the State Secrets Privilege.
Or perhaps this case:
In 2007, the ACLU filed a federal lawsuit against Jeppesen DataPlan, Inc., a subsidiary of Boeing Company, on behalf of five extraordinary rendition victims. The suit charged that Jeppesen knowingly participated in these renditions by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these five men to torture, detention and interrogation.
According to published reports, Jeppesen had actual knowledge of the consequences of its activities. A former Jeppesen employee informed The New Yorker magazine that, at an internal corporate meeting, a senior Jeppesen official stated, "We do all of the extraordinary rendition flights - you know, the torture flights. Let's face it, some of these flights end up that way."
Shortly after the suit was filed, the government intervened and inappropriately asserted the "State Secrets Privilege," claiming further litigation would undermine national security interests, even though much of the evidence needed to try the case was already available to the public. To date, not a single torture victim has had his day in court.
One of the Jeppesen case plaintiffs, Binyam Mohammed, brought virtually the same lawsuit in British courts and was awarded damages of one million pounds.
During the Administration of George W. Bush, the courts saw a veritable avalanche of lawsuits thrown out of court through the government’s assertion of the SSP. While the rule itself dates back to the days of World War Two, it had been little used since then.
Perhaps one of the reasons for that was the disastrous revelation that followed the disclosure of what actually happened the first time the government used the SSP.
In October 1948, a B-29 Superfortress caught fire at 20,000 feet on takeoff in central Georgia. Three crew members and a passenger jumped and parachuted to safety. At 8,000 feet, the plane exploded. The nine men remaining on board were killed.
Three civilian engineers who had been testing electronic equipment onboard the plane were killed. No further information was provided to the engineers’ families. The government said its investigation of the crash was a military secret. The Air Force said disclosure might jeopardize national security by revealing the nature of their work.
The fight for information found its way to the Supreme Court, which sided with the government in the landmark 1953 ruling United States v. Reynolds.
Since then, Reynolds has been the standard illustrating the bond of trust between judges and other officers of the court. Despite Reynolds’ disastrous outcome, judges are still apparently ready to buy what prosecutors are selling. So far in the recent history of the State Secrets Privilege, not a single plaintiff has won a single case!
The conclusion of the Reynolds case is instructive.
In 1949, one of the widows of the dead pilots sued the government for negligence, in part to make up for the loss of her husband’s salary. The government’s appeals worked their way to the Supreme Court, where, in October 1953, the solicitor general’s office argued that in the interest of national security, the executive branch could withhold any document “without showing it to a judge,” in camera, or private, review.
And five months later, the court came down unequivocally on the side of the government. The nation’s experience in World War II demonstrated the need to keep the electronics work secret so that its “full military advantage” could be exploited, the justices said. Chief Justice Vinson wrote, “There was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment” that the downed plane “had gone aloft to test.”
Blocked from probing the cause of the crash, the widows – two others had joined the suit -- was advised to settle. Later a copy of the court’s opinion was downloaded, and there was nothing in the accident report about the engineers’ electronics work, only a confused tale of the plane crash.
The readers believed that the claim about the engineers’ top-secret electronics work was a fiction designed to mask the fatal series of errors and breached procedures. The text that had been blacked out all those years ago was not government secrets but the names of those who had been at fault.
As a candidate, Barack Obama opposed the Bush administration’s embrace of the State Secrets Privilege as a tactic for deflecting litigation as part of his argument for greater transparency in Washington. He maintained the position, at least rhetorically, following his election. In a memo discussing the Freedom of Information Act in February 2009 the president wrote, “A democracy requires accountability, and accountability requires transparency.”
The Justice Department continues to claim fairness and even-handedness as it misuses the SSP. Says the DOJ: “The Department has applied and will continue to apply these procedures faithfully in reviewing and defending the invocation of the privilege. The Department believes that good faith adherence to the standards and procedures outlined above will ensure the privilege is invoked in an appropriately narrow set of circumstances.”
Furthermore, it adds, “while invocation of the privilege may result in the dismissal of some claims, the Department’s policy seeks to avoid that result whenever possible, consistent with national security interests.”
The Obama Administration has proposed a number of legislative changes in the SSP and the way it should be used. None of these has gotten very far in a Congress fearful of bucking any trend that ran counter to the perception of victory in the “war on terror.”
Jameel Jaffer of the ACLU has a rather different take. He said, “It's clear that the executive branch is using the state secrets privilege not to protect legitimate national security information but to shield the government and its agents from accountability for systemic violations of the Constitution. A state secrets privilege that operates in this way serves neither national security nor the country's broader interest in the rule of law."
Steven Aftergood, director of the Project on Government Secrecy of the Federation of American Scientists, told this reporter, “There are innocent individuals who have been swept up in U.S. government counterterrorism operations, wrongly detained, ‘rendered’ surreptitiously to foreign countries, subjected to extreme physical and mental stress, or otherwise wronged.”
He added: “In some cases, like those of persons such as Maher Arar and Khaled el-Masri, efforts to seek legal remedies have been blocked by the government’s invocation of the state secrets privilege,” he added. “As a result, the alleged abuses committed in such cases remain unresolved, and there is no way for the affected individuals to be made whole.”
But legal experts are beginning to discuss “a new departure” in the use of the SSP. It springs from the Obama Administration’s “kill list” – individuals, including US citizens, who have dedicated themselves to destroying Americans and US interests and who the government says may legally be killed by the government.
This incendiary ruling – made only by the Executive Branch of government, not yet tested by any court – has rocked the legal world.
The sparse wording of the ACLU announcement of this newest development suggests its shock value.
The ACLU said, “Today in Yemen, U.S. air strikes killed American citizen Anwar Al-Aulaqi. Al-Aulaqi has never been charged with a crime. Last year, the ACLU and Center for Constitutional Rights represented Al-Aulaqi's father in a lawsuit challenging the government's asserted authority to carry out ‘targeted killings’ of U.S. citizens located far from any armed conflict zone. We argued that such killings violate the Constitution and international law, but the case was dismissed in federal court last December.”
In response to the killing of Al-Aulaqi, ACLU Deputy Legal Director Jameel Jaffer said:
“The targeted killing program violates both U.S. and international law. As we've seen today, this is a program under which American citizens far from any battlefield can be executed by their own government without judicial process, and on the basis of standards and evidence that are kept secret not just from the public but from the courts. The government's authority to use lethal force against its own citizens should be limited to circumstances in which the threat to life is concrete, specific, and imminent. It is a mistake to invest the President — any President — with the unreviewable power to kill any American whom he deems to present a threat to the country.”
Ben Wizner of the ACLU suggests that the al-Aulaqi case represents a new chapter in Obama-era state secrets invocation. “This is the first time that I am aware of that the [Obama] administration has invoked state secrets in defense of its own policies.”
The policies Wizner refers to are the administration’s asserted authority to use lethal force away from the battlefield -- including against US civilians who have not been charged with any crime.
This article originally appeared in the pages of Prism Magazine.
Scott Horton, who is also a lawyer, is one of the most astute chroniclers of our world. He writes for Harper’s Magazine and believes that National Security Letters are “one of the creepier weapons in the arsenal of the national-security state.”
This reporter agrees, but finds another of our government ‘s legal games arguably more reprehensible. It’s known as the State Secrets Privilege (SSP). It’s an evidentiary rule, which means that it can be invoked by the government as grounds for excluding some discreet item of evidence if its disclosure would compromise national security. It does not require review from a judge. In a large sense, it’s your government saying, “We know the evidence. We prepared the affidavit. Trust us.”
Virtually no one would deny a government – any government – the right to keep secret those things that are likely to expose the legitimate sources and methods used by the government to protect the country and its people. But there is a huge difference between ‘we know the evidence’ and ‘trust us.’ And there is a fine line between that objective and concealment to avoid embarrassing truths. Over many years, we’ve learned, as the man said, Trust but Verify. And in court, the only man who can verify is the judge.
First the George W. Bush Administration, and now the Barack Obama Administration, have used the SSP in an entirely different way. They have invoked the privilege to get judges – who have not seen the evidence -- to throw entire lawsuits out of court, because the government argues that any mention whatever of any of the details of the case would have a disastrous effect on the well-being of all Americans.
Like this case:
Khaled el-Masri arguably holds the world’s record of unsuccessful attempts to get his “day in court.” He has knocked on courtroom doors all over the US and some overseas venues as well, and has each time been rebuffed.
El-Masri, a German citizen, alleged that he was kidnapped in 2004, “rendered” to Albania and then to Afghanistan, where he was falsely held by the CIA for several months – which the CIA acknowledges – and was beaten, drugged, and subjected to various other inhumane activity while in captivity.
They then drove him to the capitol’s Skopje airport and handed him to a CIA rendition team who flew him to Kabul as part of the U.S. “Extraordinary Rendition” program, where he was detained for four months. The government of Macedonia denies any involvement in his abduction.
He was ultimately released by the CIA on a deserted road in Macedonia in the dead of night with no charge ever being brought against him by the U.S. government or anyone else.
In 2005, the American Civil Liberties Union sued former CIA Director George Tenet and three U.S.-based aviation corporations that owned or operated the aircraft used by the CIA to render El-Masri to Afghanistan. The lawsuit charged Tenet and others with violating the U.S. constitution and universal human rights laws.
In May 2006, El-Masri’s court case was dismissed based on invocation of the “state secrets privilege” by the CIA. The U.S. District Court dismissed his case because, according to the court, the simple fact of holding proceedings would jeopardize state secrets, as claimed by the CIA.
What was the reason for the government’s secrecy? Was it really national security? Or was it to spare government officials the embarrassment of admitting they made a huge error of mistaken identity? We’ll probably never know.
Or this case?
Arar v. Ashcroft is a 2010 federal lawsuit challenging the rendition of a Canadian citizen to Syria, by the U.S. government, where he was tortured, forced to falsely confess, and released after one year without ever being charged. The Canadian was Maher Arar, publisher of this magazine.
Arar, a Syrian-born, Canadian citizen was detained during a layover at J.F.K. Airport in September 2002 on his way home to his family in Canada. He was held in solitary confinement for nearly two weeks, interrogated, and denied meaningful access to a lawyer.
The Bush administration labeled him a member of Al Qaeda, and rendered him, not to Canada, his home and country of citizenship, but to Syrian intelligence authorities renowned for torture. The plaintiff sued for a jury trial, compensatory and punitive damages, and a declaration that the actions of Defendants were illegal and violated Arar’s constitutional, civil, and international human rights.
The Canadian Government conducted a two-year investigation of the case and concluded that it too was guilty of mistaken identity. It apologized for passing inaccurate information to the American authorities and paid Arar substantial monetary damages.
The US Government refused even to discuss the case, much less apologize. During a Congressional hearing, then Secretary of State Condoleezza Rice offered, “this case was not handled well.”
The Government’s silence also extended to US courts of law, where the government invoked the SSP to keep secret the details of Arar’s treatment. And the courts, by and large, agreed.
Arar pursued his claims through various US courts. On June 14, 2010, the Supreme Court denied Mr. Arar’s petition for certiorari to review the Second Circuit Court of Appeals' en banc decision dismissing his case.
That ended Arar’s case in US courts, where once again judges sided with the unknown in the form of the State Secrets Privilege.
Or perhaps this case:
In 2007, the ACLU filed a federal lawsuit against Jeppesen DataPlan, Inc., a subsidiary of Boeing Company, on behalf of five extraordinary rendition victims. The suit charged that Jeppesen knowingly participated in these renditions by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these five men to torture, detention and interrogation.
According to published reports, Jeppesen had actual knowledge of the consequences of its activities. A former Jeppesen employee informed The New Yorker magazine that, at an internal corporate meeting, a senior Jeppesen official stated, "We do all of the extraordinary rendition flights - you know, the torture flights. Let's face it, some of these flights end up that way."
Shortly after the suit was filed, the government intervened and inappropriately asserted the "State Secrets Privilege," claiming further litigation would undermine national security interests, even though much of the evidence needed to try the case was already available to the public. To date, not a single torture victim has had his day in court.
One of the Jeppesen case plaintiffs, Binyam Mohammed, brought virtually the same lawsuit in British courts and was awarded damages of one million pounds.
During the Administration of George W. Bush, the courts saw a veritable avalanche of lawsuits thrown out of court through the government’s assertion of the SSP. While the rule itself dates back to the days of World War Two, it had been little used since then.
Perhaps one of the reasons for that was the disastrous revelation that followed the disclosure of what actually happened the first time the government used the SSP.
In October 1948, a B-29 Superfortress caught fire at 20,000 feet on takeoff in central Georgia. Three crew members and a passenger jumped and parachuted to safety. At 8,000 feet, the plane exploded. The nine men remaining on board were killed.
Three civilian engineers who had been testing electronic equipment onboard the plane were killed. No further information was provided to the engineers’ families. The government said its investigation of the crash was a military secret. The Air Force said disclosure might jeopardize national security by revealing the nature of their work.
The fight for information found its way to the Supreme Court, which sided with the government in the landmark 1953 ruling United States v. Reynolds.
Since then, Reynolds has been the standard illustrating the bond of trust between judges and other officers of the court. Despite Reynolds’ disastrous outcome, judges are still apparently ready to buy what prosecutors are selling. So far in the recent history of the State Secrets Privilege, not a single plaintiff has won a single case!
The conclusion of the Reynolds case is instructive.
In 1949, one of the widows of the dead pilots sued the government for negligence, in part to make up for the loss of her husband’s salary. The government’s appeals worked their way to the Supreme Court, where, in October 1953, the solicitor general’s office argued that in the interest of national security, the executive branch could withhold any document “without showing it to a judge,” in camera, or private, review.
And five months later, the court came down unequivocally on the side of the government. The nation’s experience in World War II demonstrated the need to keep the electronics work secret so that its “full military advantage” could be exploited, the justices said. Chief Justice Vinson wrote, “There was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment” that the downed plane “had gone aloft to test.”
Blocked from probing the cause of the crash, the widows – two others had joined the suit -- was advised to settle. Later a copy of the court’s opinion was downloaded, and there was nothing in the accident report about the engineers’ electronics work, only a confused tale of the plane crash.
The readers believed that the claim about the engineers’ top-secret electronics work was a fiction designed to mask the fatal series of errors and breached procedures. The text that had been blacked out all those years ago was not government secrets but the names of those who had been at fault.
As a candidate, Barack Obama opposed the Bush administration’s embrace of the State Secrets Privilege as a tactic for deflecting litigation as part of his argument for greater transparency in Washington. He maintained the position, at least rhetorically, following his election. In a memo discussing the Freedom of Information Act in February 2009 the president wrote, “A democracy requires accountability, and accountability requires transparency.”
The Justice Department continues to claim fairness and even-handedness as it misuses the SSP. Says the DOJ: “The Department has applied and will continue to apply these procedures faithfully in reviewing and defending the invocation of the privilege. The Department believes that good faith adherence to the standards and procedures outlined above will ensure the privilege is invoked in an appropriately narrow set of circumstances.”
Furthermore, it adds, “while invocation of the privilege may result in the dismissal of some claims, the Department’s policy seeks to avoid that result whenever possible, consistent with national security interests.”
The Obama Administration has proposed a number of legislative changes in the SSP and the way it should be used. None of these has gotten very far in a Congress fearful of bucking any trend that ran counter to the perception of victory in the “war on terror.”
Jameel Jaffer of the ACLU has a rather different take. He said, “It's clear that the executive branch is using the state secrets privilege not to protect legitimate national security information but to shield the government and its agents from accountability for systemic violations of the Constitution. A state secrets privilege that operates in this way serves neither national security nor the country's broader interest in the rule of law."
Steven Aftergood, director of the Project on Government Secrecy of the Federation of American Scientists, told this reporter, “There are innocent individuals who have been swept up in U.S. government counterterrorism operations, wrongly detained, ‘rendered’ surreptitiously to foreign countries, subjected to extreme physical and mental stress, or otherwise wronged.”
He added: “In some cases, like those of persons such as Maher Arar and Khaled el-Masri, efforts to seek legal remedies have been blocked by the government’s invocation of the state secrets privilege,” he added. “As a result, the alleged abuses committed in such cases remain unresolved, and there is no way for the affected individuals to be made whole.”
But legal experts are beginning to discuss “a new departure” in the use of the SSP. It springs from the Obama Administration’s “kill list” – individuals, including US citizens, who have dedicated themselves to destroying Americans and US interests and who the government says may legally be killed by the government.
This incendiary ruling – made only by the Executive Branch of government, not yet tested by any court – has rocked the legal world.
The sparse wording of the ACLU announcement of this newest development suggests its shock value.
The ACLU said, “Today in Yemen, U.S. air strikes killed American citizen Anwar Al-Aulaqi. Al-Aulaqi has never been charged with a crime. Last year, the ACLU and Center for Constitutional Rights represented Al-Aulaqi's father in a lawsuit challenging the government's asserted authority to carry out ‘targeted killings’ of U.S. citizens located far from any armed conflict zone. We argued that such killings violate the Constitution and international law, but the case was dismissed in federal court last December.”
In response to the killing of Al-Aulaqi, ACLU Deputy Legal Director Jameel Jaffer said:
“The targeted killing program violates both U.S. and international law. As we've seen today, this is a program under which American citizens far from any battlefield can be executed by their own government without judicial process, and on the basis of standards and evidence that are kept secret not just from the public but from the courts. The government's authority to use lethal force against its own citizens should be limited to circumstances in which the threat to life is concrete, specific, and imminent. It is a mistake to invest the President — any President — with the unreviewable power to kill any American whom he deems to present a threat to the country.”
Ben Wizner of the ACLU suggests that the al-Aulaqi case represents a new chapter in Obama-era state secrets invocation. “This is the first time that I am aware of that the [Obama] administration has invoked state secrets in defense of its own policies.”
The policies Wizner refers to are the administration’s asserted authority to use lethal force away from the battlefield -- including against US civilians who have not been charged with any crime.
This article originally appeared in the pages of Prism Magazine.
Saturday, July 28, 2012
Here's an email I received from Sam Smith, one of my favorite journalist-watchers. It needs to be read and understood by any one who picks up a laptop or a quill pen to voice an opinion or offer constructive public advice to friends and colleagues. If more folks listened to Sam, we'd have more reporters and fewer stenographers.
Personal to editors
You did build that lie
Reporting a lie as fact is not being objective, it's just embedding you and your media in the lie. A lie is not a fact; a lie is a lie. And part of a journalist's job is to distinguish between lies and facts. Or used to be. Because today the media regularly reports lies as though they were just another fact.
Here's an example. I just googled the Obama phrase from the speech the Republicans are presenting so falsely: "You didn't build that." There were 208,000 hits in the past week. Then I googled a phrase that helps put Obama's comment in context - "If you were successful, somebody along the line gave you some help" - and there were only 9,900 hits.
Why the difference? Because the media overwhelmingly reported the GOP lie and not the actual context.
Any media that did so should put Obama's actual statement on the page or in the same slot as it reported the lie and, yes, should have said "build those" instead of "build that." To save you some time, here is what Obama really said:
"There are a lot of wealthy, successful Americans who agree with me -- because they want to give something back. They know they didn’t -- look, if you’ve been successful, you didn’t get there on your own. You didn’t get there on your own. I’m always struck by people who think, well, it must be because I was just so smart. There are a lot of smart people out there. It must be because I worked harder than everybody else. Let me tell you something -- there are a whole bunch of hardworking people out there.
"If you were successful, somebody along the line gave you some help. There was a great teacher somewhere in your life. Somebody helped to create this unbelievable American system that we have that allowed you to thrive. Somebody invested in roads and bridges. If you’ve got a business -- you didn’t build that. Somebody else made that happen. The Internet didn’t get invented on its own. Government research created the Internet so that all the companies could make money off the Internet.
"The point is, is that when we succeed, we succeed because of our individual initiative, but also because we do things together. There are some things, just like fighting fires, we don’t do on our own. I mean, imagine if everybody had their own fire service. That would be a hard way to organize fighting fires.
"So we say to ourselves, ever since the founding of this country, you know what, there are some things we do better together."
Personal to editors
You did build that lie
Reporting a lie as fact is not being objective, it's just embedding you and your media in the lie. A lie is not a fact; a lie is a lie. And part of a journalist's job is to distinguish between lies and facts. Or used to be. Because today the media regularly reports lies as though they were just another fact.
Here's an example. I just googled the Obama phrase from the speech the Republicans are presenting so falsely: "You didn't build that." There were 208,000 hits in the past week. Then I googled a phrase that helps put Obama's comment in context - "If you were successful, somebody along the line gave you some help" - and there were only 9,900 hits.
Why the difference? Because the media overwhelmingly reported the GOP lie and not the actual context.
Any media that did so should put Obama's actual statement on the page or in the same slot as it reported the lie and, yes, should have said "build those" instead of "build that." To save you some time, here is what Obama really said:
"There are a lot of wealthy, successful Americans who agree with me -- because they want to give something back. They know they didn’t -- look, if you’ve been successful, you didn’t get there on your own. You didn’t get there on your own. I’m always struck by people who think, well, it must be because I was just so smart. There are a lot of smart people out there. It must be because I worked harder than everybody else. Let me tell you something -- there are a whole bunch of hardworking people out there.
"If you were successful, somebody along the line gave you some help. There was a great teacher somewhere in your life. Somebody helped to create this unbelievable American system that we have that allowed you to thrive. Somebody invested in roads and bridges. If you’ve got a business -- you didn’t build that. Somebody else made that happen. The Internet didn’t get invented on its own. Government research created the Internet so that all the companies could make money off the Internet.
"The point is, is that when we succeed, we succeed because of our individual initiative, but also because we do things together. There are some things, just like fighting fires, we don’t do on our own. I mean, imagine if everybody had their own fire service. That would be a hard way to organize fighting fires.
"So we say to ourselves, ever since the founding of this country, you know what, there are some things we do better together."
Thursday, July 26, 2012
The FBI’s Secret Weapon
By William Fisher
On every single day of every single calendar year, an average of 137 men and women in the US have been receiving letters from the government that can only be seen as either tragic or hilarious.
Experience with these missives since their inception in 1978 strongly suggests that hilarious is not winning first place.
These are not “get out the vote” letters from candidates. They don’t contain news of the campaigns’ latest sex scandals. They aren’t for raising funds. If they’re raising anything it’s blood pressure and hackles.
And they’ve been having that effect for more than a decade. It was following the terrorist attacks of 9/11 that a bleary-eyed and clearly fearful Congress convened to pass the USA Patriot Act – a potpourri of existing and new laws designed to prevent the Jihadis from annihilating America.
The law – actually an old law greatly expanded -- had been printed only the night before the vote. Most members of Congress had time only to skim it, if that. The vote in the Senate was 99-1. Only Senator Russ Feingold, Democrat from Wisconsin, had the guts to vote “no.”
Attorney General John Ashcroft dodged a heart attack and President George W. Bush quickly demonstrated his penmanship.
Now, one of the provisions in the new law was known as the National Security Letter (NSL). NSLs are, effectively, administrative subpoenas. They are extensively used by the FBI – it’s estimated that some 50,000 NSLs are issued annually.
The letters order specific entities or organizations to turn over various records and data pertaining to individuals, usually members or customers. No probable cause or judicial oversight is required.
The original versions of the law also contained an order of silence that prohibits the recipient of the letter from disclosing that the letter was ever issued. Disclosing it to anybody – lawyer, wife, doctor, clergy, and so forth, under penalty of criminal prosecution.
Constitutional? Well, on the face of it, as the lawyers like to say, it would seem deeply flawed at a number of levels. Violation of the Fourth Amendment against unreasonable searches and seizures is but only of them. Another is the “gag order,” which strips away the Constitutional first amendment guarantee of freedom of speech. Only the courts can impose such a penalty, and judges use it sparingly and for short periods of time only. The gag order has been ruled unconstitutional.
On the Search and Seizure issue, listen to Chip Pitts, former head of Amnesty and currently a lecturer in law at Stamford and Oxford. Here’s what he told Prism:
“National Security Letters violate Fourth Amendment rights to freedom from unreasonable searches and seizures without a warrant and probable cause to believe a crime or terrorism was involved, which also have been eroded by the FISA Amendments Act (allowing the Bush-era illegal warrantless surveillance of Americans’ phone calls, emails, and web-surfing habits).”
And he adds: “The evidence is overwhelming that other sections of the Patriot Act also trample on civil liberties -- provisions including section 505 regarding the notorious and repeatedly abused National Security Letters (allowing the FBI to search a wide variety of library and business records without probable cause, any judicial review, or notifying the target); section 215 (the library and business records provision requiring the secret FISA court to approve searches on a mere ‘relevance’ standard and probably also being interpreted to allow a secret datamining program some Senators say would ‘stun and ‘anger’ the US public if revealed); section 213 (allowing sneak and peek” secret black bag job searches of homes); and section 218 (basically importing expansive foreign intelligence surveillance powers into domestic criminal law).”
The New York Times points out that the 2001 Act did not create the NSL authority. However, it lowered the standard. “Before passage of the 2001 Act, the government had to have specific and articulable facts demonstrating that the information sought pertained to a foreign power or an agent of a foreign power. The 2001 Act provides that the FBI may use NSLs to obtain information from a ‘wire or electronic communication service provider’ that is merely ‘relevant to an investigation to protect against international terrorism or clandestine intelligence activities’.
In “Tales from Stasiland: The letter that makes you disappear,” Scott Horton writes, “
One of the creepier weapons in the arsenal of the national-security state is the ‘national-security letter’ or NSL. It’s no ordinary letter, and it travels postage-free, but at enormous expense to the taxpayers. The FBI issues roughly 50,000 of them a year, and the Justice Department’s own internal review in 2007 concluded that many of them were issued abusively, skirting the law and internal rules.”
The Constitutional lawyer and columnist for Harpers Magazine goes on: “The idea is simple: the device is something like a subpoena, though it doesn’t require approval of a judge to issue. Instead, the FBI requires the recipient to help it in an investigation targeting a third party. It might be dropped on a librarian, with a demand that she tell the FBI every book that a certain subscriber checked out, every magazine he perused, and every time he accessed the Internet using a computer at the library. Or it might go to an Internet service provider, requiring information about every website viewed by a certain customer.”
Now as a result of a partial settlement in one of several cases in which the FBI’s use of NSLs is being successfully challenged, one of the recipients has been allowed to emerge from the shadows.
Manhattan native Nicholas Merrill ran an Internet start-up named Calyx. He was the recipient of an NSL demanding that he “provide 16 categories of ‘electronic communication transactional records,’ including e-mail address, account number and billing information.”
The FBI withdrew its NSL to Merrill in 2006, apparently after Merrill made it clear he was not going down without a fight.
Ellen Nakashima has profiled Merrill in a piece in the Washington Post. Here’s her lede:
“For six years, Nicholas Merrill could not tell even his fiancée, his closest friends or his mother that he is “John Doe” — the man who filed the first-ever court challenge to the FBI’s ability to obtain personal data on Americans without judicial approval. Friends would mention the case when it was in the news and the normally outspoken Merrill would change the subject. He would turn up at the federal courthouse to hear the arguments, and in an out-of-body moment he would realize that no one knew he was the plaintiff challenging the FBI’s authority.”
“What led Merrill to mount a challenge against the use of NSLs?”
“Two things, he said, “just leaped out at me.” The first was the letter’s prohibition against disclosure. The second was the absence of a judge’s signature. “It seemed to be acting like a search warrant, but it wasn’t a search warrant signed by a judge,” said Merrill.
“He said it seemed to him to violate the constitutional ban against unreasonable searches and seizures. The letter said that the information was sought for an investigation against international terrorism or clandestine intelligence activities. Merrill said he thought it ‘outlandish’ that any of his clients, many of whom were ad agencies and major companies as well as human rights and other nonprofit groups, would be investigated for terrorism or espionage.”
“It’s a perfect example of how the government can use its broad powers to silence people,” Merrill told The New York Times. Until August, he was forbidden to acknowledge the existence of a 2004 letter that the company he founded, the Calyx Internet Access Corporation, received from the F.B.I.”
According to the ACLU, Merrill is now free to speak about the request, but he is still barred from discussing what information he had been asked to provide. As a result, he said, before he gives a talk he consults a six-page guide prepared by his ACLU lawyers to be sure that he complies with the order to avoid risking a punishment of five years in prison.
The government cites national security as the reason the contents of the letters — even their existence — are kept secret. The FBI says it is trying to prevent plots as they are being hatched.
Today there appears to be general agreement that it has become easier to challenge the letters’ requests as well as their secrecy. At the moment, there are no new challenges in the court system, the government and the ACLU say.
The New York Times reports that, to one of Merrill’s ACLU lawyers, Jameel Jaffer, the smooth operation of the system is a sign that it is not working. The privacy rights at stake are not those of the companies who hold the information, Jaffer said, but “about people whose records are held.” And those people should be told, he said.
“People used to be the custodians of their own records, their own diaries. Now third parties are custodians of all that,” he said. “Everything you do online is entrusted to someone else — unless you want to go completely off the grid, and I’m not even sure that is possible.”
And life for the NSL appears to be heating up elsewhere as well. According to the Electronic Frontier Foundation (EFF) , the U.S. government with assistance from major telecommunications carriers including AT&T has engaged in a massive program of illegal dragnet surveillance of domestic communications and communications records of millions of ordinary Americans since at least 2001.
The EFF web site writes that news reports in December 2005 first revealed that the National Security Agency (NSA) has been intercepting Americans’ phone calls and Internet communications. Those news reports plus a USA Today story in May 2006 and the statements of several members of Congress revealed that the NSA is also receiving wholesale copies of their telephone and other communications records. All of these surveillance activities are in violation of the privacy safeguards established by Congress and the U.S. Constitution.
The web site reports that EFF is fighting these illegal activities on multiple fronts. In Hepting v. AT&T EFF filed the first case against a telecom for violating its customers' privacy. In addition EFF is representing victims of the illegal surveillance program in Jewel v. NSA a lawsuit filed in September 2008 against the government seeking to stop the warrantless wiretapping and hold the government officials behind the program accountable.
At the end of the day, one would have to assess NSLs as quirky – yet highly dangerous law. It’s quirky because it seems to oblige those who don’t like headlines like “Here’s Some News The Government Doesn’t Want You to Know.”
It’s quirky because it seems to disappear from the headlines for long periods for everyone save those who aspire to Ph. D’s in NSLs, and then out of nowhere comes rushing back to make big news. In reality, it simply keeps stepping smartly along, avoiding major collisions and remaining largely invisible to the public and the press.
“The Press” would be a hefty segment of Washington DC journalists, those who are often dubbed “the stenographers” – those corporate scriveners who each day trade substance for access.
We shouldn’t be surprised that some Senators say the abuses in the Patriot Act would ‘stun’ and ‘anger’ the US public if revealed. We should be surprised that there aren’t’ a lot more lawmakers – and their constituents -- of both parties sounding ‘stunned’ and ‘angered’ that they slept while their liberties became bad dreams.
This article originallly appeared on the pages of Prism Magazine
On every single day of every single calendar year, an average of 137 men and women in the US have been receiving letters from the government that can only be seen as either tragic or hilarious.
Experience with these missives since their inception in 1978 strongly suggests that hilarious is not winning first place.
These are not “get out the vote” letters from candidates. They don’t contain news of the campaigns’ latest sex scandals. They aren’t for raising funds. If they’re raising anything it’s blood pressure and hackles.
And they’ve been having that effect for more than a decade. It was following the terrorist attacks of 9/11 that a bleary-eyed and clearly fearful Congress convened to pass the USA Patriot Act – a potpourri of existing and new laws designed to prevent the Jihadis from annihilating America.
The law – actually an old law greatly expanded -- had been printed only the night before the vote. Most members of Congress had time only to skim it, if that. The vote in the Senate was 99-1. Only Senator Russ Feingold, Democrat from Wisconsin, had the guts to vote “no.”
Attorney General John Ashcroft dodged a heart attack and President George W. Bush quickly demonstrated his penmanship.
Now, one of the provisions in the new law was known as the National Security Letter (NSL). NSLs are, effectively, administrative subpoenas. They are extensively used by the FBI – it’s estimated that some 50,000 NSLs are issued annually.
The letters order specific entities or organizations to turn over various records and data pertaining to individuals, usually members or customers. No probable cause or judicial oversight is required.
The original versions of the law also contained an order of silence that prohibits the recipient of the letter from disclosing that the letter was ever issued. Disclosing it to anybody – lawyer, wife, doctor, clergy, and so forth, under penalty of criminal prosecution.
Constitutional? Well, on the face of it, as the lawyers like to say, it would seem deeply flawed at a number of levels. Violation of the Fourth Amendment against unreasonable searches and seizures is but only of them. Another is the “gag order,” which strips away the Constitutional first amendment guarantee of freedom of speech. Only the courts can impose such a penalty, and judges use it sparingly and for short periods of time only. The gag order has been ruled unconstitutional.
On the Search and Seizure issue, listen to Chip Pitts, former head of Amnesty and currently a lecturer in law at Stamford and Oxford. Here’s what he told Prism:
“National Security Letters violate Fourth Amendment rights to freedom from unreasonable searches and seizures without a warrant and probable cause to believe a crime or terrorism was involved, which also have been eroded by the FISA Amendments Act (allowing the Bush-era illegal warrantless surveillance of Americans’ phone calls, emails, and web-surfing habits).”
And he adds: “The evidence is overwhelming that other sections of the Patriot Act also trample on civil liberties -- provisions including section 505 regarding the notorious and repeatedly abused National Security Letters (allowing the FBI to search a wide variety of library and business records without probable cause, any judicial review, or notifying the target); section 215 (the library and business records provision requiring the secret FISA court to approve searches on a mere ‘relevance’ standard and probably also being interpreted to allow a secret datamining program some Senators say would ‘stun and ‘anger’ the US public if revealed); section 213 (allowing sneak and peek” secret black bag job searches of homes); and section 218 (basically importing expansive foreign intelligence surveillance powers into domestic criminal law).”
The New York Times points out that the 2001 Act did not create the NSL authority. However, it lowered the standard. “Before passage of the 2001 Act, the government had to have specific and articulable facts demonstrating that the information sought pertained to a foreign power or an agent of a foreign power. The 2001 Act provides that the FBI may use NSLs to obtain information from a ‘wire or electronic communication service provider’ that is merely ‘relevant to an investigation to protect against international terrorism or clandestine intelligence activities’.
In “Tales from Stasiland: The letter that makes you disappear,” Scott Horton writes, “
One of the creepier weapons in the arsenal of the national-security state is the ‘national-security letter’ or NSL. It’s no ordinary letter, and it travels postage-free, but at enormous expense to the taxpayers. The FBI issues roughly 50,000 of them a year, and the Justice Department’s own internal review in 2007 concluded that many of them were issued abusively, skirting the law and internal rules.”
The Constitutional lawyer and columnist for Harpers Magazine goes on: “The idea is simple: the device is something like a subpoena, though it doesn’t require approval of a judge to issue. Instead, the FBI requires the recipient to help it in an investigation targeting a third party. It might be dropped on a librarian, with a demand that she tell the FBI every book that a certain subscriber checked out, every magazine he perused, and every time he accessed the Internet using a computer at the library. Or it might go to an Internet service provider, requiring information about every website viewed by a certain customer.”
Now as a result of a partial settlement in one of several cases in which the FBI’s use of NSLs is being successfully challenged, one of the recipients has been allowed to emerge from the shadows.
Manhattan native Nicholas Merrill ran an Internet start-up named Calyx. He was the recipient of an NSL demanding that he “provide 16 categories of ‘electronic communication transactional records,’ including e-mail address, account number and billing information.”
The FBI withdrew its NSL to Merrill in 2006, apparently after Merrill made it clear he was not going down without a fight.
Ellen Nakashima has profiled Merrill in a piece in the Washington Post. Here’s her lede:
“For six years, Nicholas Merrill could not tell even his fiancée, his closest friends or his mother that he is “John Doe” — the man who filed the first-ever court challenge to the FBI’s ability to obtain personal data on Americans without judicial approval. Friends would mention the case when it was in the news and the normally outspoken Merrill would change the subject. He would turn up at the federal courthouse to hear the arguments, and in an out-of-body moment he would realize that no one knew he was the plaintiff challenging the FBI’s authority.”
“What led Merrill to mount a challenge against the use of NSLs?”
“Two things, he said, “just leaped out at me.” The first was the letter’s prohibition against disclosure. The second was the absence of a judge’s signature. “It seemed to be acting like a search warrant, but it wasn’t a search warrant signed by a judge,” said Merrill.
“He said it seemed to him to violate the constitutional ban against unreasonable searches and seizures. The letter said that the information was sought for an investigation against international terrorism or clandestine intelligence activities. Merrill said he thought it ‘outlandish’ that any of his clients, many of whom were ad agencies and major companies as well as human rights and other nonprofit groups, would be investigated for terrorism or espionage.”
“It’s a perfect example of how the government can use its broad powers to silence people,” Merrill told The New York Times. Until August, he was forbidden to acknowledge the existence of a 2004 letter that the company he founded, the Calyx Internet Access Corporation, received from the F.B.I.”
According to the ACLU, Merrill is now free to speak about the request, but he is still barred from discussing what information he had been asked to provide. As a result, he said, before he gives a talk he consults a six-page guide prepared by his ACLU lawyers to be sure that he complies with the order to avoid risking a punishment of five years in prison.
The government cites national security as the reason the contents of the letters — even their existence — are kept secret. The FBI says it is trying to prevent plots as they are being hatched.
Today there appears to be general agreement that it has become easier to challenge the letters’ requests as well as their secrecy. At the moment, there are no new challenges in the court system, the government and the ACLU say.
The New York Times reports that, to one of Merrill’s ACLU lawyers, Jameel Jaffer, the smooth operation of the system is a sign that it is not working. The privacy rights at stake are not those of the companies who hold the information, Jaffer said, but “about people whose records are held.” And those people should be told, he said.
“People used to be the custodians of their own records, their own diaries. Now third parties are custodians of all that,” he said. “Everything you do online is entrusted to someone else — unless you want to go completely off the grid, and I’m not even sure that is possible.”
And life for the NSL appears to be heating up elsewhere as well. According to the Electronic Frontier Foundation (EFF) , the U.S. government with assistance from major telecommunications carriers including AT&T has engaged in a massive program of illegal dragnet surveillance of domestic communications and communications records of millions of ordinary Americans since at least 2001.
The EFF web site writes that news reports in December 2005 first revealed that the National Security Agency (NSA) has been intercepting Americans’ phone calls and Internet communications. Those news reports plus a USA Today story in May 2006 and the statements of several members of Congress revealed that the NSA is also receiving wholesale copies of their telephone and other communications records. All of these surveillance activities are in violation of the privacy safeguards established by Congress and the U.S. Constitution.
The web site reports that EFF is fighting these illegal activities on multiple fronts. In Hepting v. AT&T EFF filed the first case against a telecom for violating its customers' privacy. In addition EFF is representing victims of the illegal surveillance program in Jewel v. NSA a lawsuit filed in September 2008 against the government seeking to stop the warrantless wiretapping and hold the government officials behind the program accountable.
At the end of the day, one would have to assess NSLs as quirky – yet highly dangerous law. It’s quirky because it seems to oblige those who don’t like headlines like “Here’s Some News The Government Doesn’t Want You to Know.”
It’s quirky because it seems to disappear from the headlines for long periods for everyone save those who aspire to Ph. D’s in NSLs, and then out of nowhere comes rushing back to make big news. In reality, it simply keeps stepping smartly along, avoiding major collisions and remaining largely invisible to the public and the press.
“The Press” would be a hefty segment of Washington DC journalists, those who are often dubbed “the stenographers” – those corporate scriveners who each day trade substance for access.
We shouldn’t be surprised that some Senators say the abuses in the Patriot Act would ‘stun’ and ‘anger’ the US public if revealed. We should be surprised that there aren’t’ a lot more lawmakers – and their constituents -- of both parties sounding ‘stunned’ and ‘angered’ that they slept while their liberties became bad dreams.
This article originallly appeared on the pages of Prism Magazine
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