5/16, Daniel Halper, Weekly Standard, Congressman: Justice Dept. Wiretapped the House of Representative’s Cloak Room

5/16, Josh Peterson, The Daily Caller, DOJ sought to surveil several thousand U.S. citizens in 2012

5/16, Alina Selyukh and Deborah Charles, NBC News, CISPA cybersecurity bill backers hope second time’s a charm

5/16, Charlie Savage, New York Times, Debating the Legal Basis for the War on Terror

5/16, Somini Sengupta, New York Times, Concerns Arise on U.S. Effort to Allow Internet ‘Wiretaps’

5/16, Brad Knickerbocker, Christian Science Monitor, US loses track of terrorists in witness protection: Poor data sharing blamed

5/15, Matthew Alexander, MSNBC, New WikiLeaks film discusses government secrecy

Important criticism of the Justice Department’s suppression of press freedom remains inadequate.

Finally finding its voice after five years of relative silence, the mainstream establishment press finally woke up this week to criticize the Obama administration’s assault on the First Amendment. But, while this criticism is important and necessary, it remains days (indeed, years) late, and much more than merely a dollar short.

Is this America or China?

The Justice Department’s seizure of Associated Press telephone calls without prior notice, in violation of fundamental First Amendment principles, and extending the Obama administration’s already hypocritical and authoritarian crackdown on government whistleblowers, is indeed a travesty worthy of this week’s onslaught from the press, Congress, and the public. Reaching even beyond the office phone lines of reporters and editors to also invade the privacy of their home and cellular calls, the Justice Department’s tactics seem more fitting in China than the United States.

Noting that “[b]y obtaining these records, the DOJ has struck a terrible blow against…freedom of the press and the ability of reporters to investigate and report the news,” the Electronic Frontier Foundation also noted the broader need to “require more than a mere subpoena…whether the target is the news media or an ordinary citizen.” Few others, however, beyond Glenn Greenwald, have recognized that the assault on press freedom is merely an extension of a longstanding policy shared by presidents from both of the major political parties.

To its credit, the Washington Post expanded the context of its reporting, writing this week that:

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The George W. Bush Presidential Library  and Museum opened to the public this week, a great unveiling that has  reignited the debate about the Bush-era “enhanced interrogation techniques” (read: torture).  One of the most controversial elements of the new museum is a video narrated by former Secretary of State, Condoleezza Rice.  The video explains that President Bush asked two “very important” questions in his decision to use torture in the post-9/11 “War on Terror”: was it legal?  And was it necessary?  When allegedly answered “yes” to both of these questions, President Bush proceeded in making detention and torture an instrumental part of his administration’s work.

The real surprise of the video, though, is in Rice’s suggestion that the United States was spared further terrorist attacks because of Bush’s detention and torture policies.  Rice argues that, “The fact that we have not had a successful attack on our territory traces directly to those difficult decisions in a new kind of war after September 11th.”  This is a dangerous allegation to make, and it underscores the need for our government to reconsider the effectiveness of detention and torture, a fight of which Senator Mark Udall (D-CO) has been at the forefront.

Udall correctly commented that the video in the George W. Bush Presidential Library and Museum “could potentially leave thousands of visitors to the library with the false impression that this wrongheaded program prevented terrorist attacks here in the United States.”  Udall seeks to correct the record on the Bush administration’s detention and interrogation program and to declassify the Senate Select Committee on Intelligence more than 6,000 page report on that program.

Understanding the effectiveness of Bush’s detention and interrogation programs is particularly crucial as the U.S. now faces a new moral dilemma posed by the Obama administration’s drone programs and the new executive power to legally authorize the targeted killing of American citizens.  To move forward without rectifying past misuses of executive power would likely make any hope of future executive accountability unattainable.  In order to hold the Obama administration to a higher humanitarian standard and reject the executive power to assassinate American citizens, we must demand truth and accountability from past administrations as well.  It is for this reason that Udall’s push to correct the record on the post-9/11 detention and interrogation programs and declassify the 6,000 plus page report is so crucial.  You can support Senator Udall’s fight by signing BORDC’s petition to declassify the Senate Select Committee on Intelligence report.

A coalition of religious leaders and human rights groups are protesting the possible promotion of a CIA official who was allegedly involved in the destruction of several videos showing US officials torturing detainees. The coalition against her promotion is led by the National Religious Campaign Against Torture, and also includes the Center for Victims of Torture, Human Rights Watch, Open Society Policy Center, and Physicians for Human Rights.

The group sent a letter to the CIA Director, John Brennan, calling on him not to promote anyone involved in torture “black sites,” or in the destruction of the torture tapes. The letter says, “Promoting such an individual would compound the existing impunity for torture, by suggesting that such actions are in fact rewarded.”

Although the name of the CIA official has not been made public, the Washington Post has reported a few things on her: she would be the first woman to lead the clandestine services area of the CIA, she is highly respected within the agency for her work, and she was a very strong advocate for the use of torture during interrogations after 9/11.

In 2002, this CIA operative helped run a “black site” in Thailand. It is widely acknowledged that the CIA was torturing detainees at these secret prisons. According to a report on US torture after 9/11 published by the Constitution Project, “many lower level troops believed ‘the gloves were off’ regarding treatment of prisoners.” At the CIA location in Thailand, 92 tapes of interrogation were recorded, reportedly including agents waterboarding a prisoner to the point of “screaming and vomiting.”

In 2004, a US court ordered the government to turn over or preserve all evidence in relation to its secret interrogation programs. In 2005, all 92 of the tapes were destroyed against court orders, allegedly at the request of this CIA official as well as CIA’s head of counterterrorism, Jose Rodriguez. The videos were destroyed the same month that Dana Priest wrote a exhaustive article about the CIA’s black sites, leading to increased public scrutiny of the practice.

This official is already acting as head of the clandestine operations, but John Brennan has hesitated in making her the permanent leader of that office. Clandestine operations oversees sending spies abroad and the CIA’s drone program, which has faced its own criticism lately over transparency.

Marc Thiessen, a former Bush administration official, wrote a defense of the agent, in which he worries that demoting this official could “send a chilling message through the ranks of the CIA…It would push the agency back into a risk-averse, pre-Sept 11, 2001, mindset.”

If the risks that the CIA is taking involves torturing people, then that is exactly the kind of message we should be sending. Depriving people of their rights from the Geneva Convention is not a “risk” we should ever be willing to take. So far, there has been no punishment for those involved in the destruction of the tapes. How can we hold the government accountable when they are destroying all of the evidence against themselves?

The Cyber Intelligence Sharing and Protection Act (CISPA) is continuing to move through Congress despite major, unresolved privacy issues.

Several weeks ago, privacy advocates, consumers associations, and technology companies all worked together during the Cyber Intelligence Sharing and Protection Act (CISPA) Week of Action to address the major privacy flaws in CISPA, H.B. 624. The week of action was a major success, with companies such as Craigslist and Firefox taking part and thousands of people contacting their representatives in Congress to express their concern around CISPA. However, the fight over CISPA is just beginning. Last week, CISPA passed out of the House Intelligence Committee by a vote of 18-2.

The sponsors of the bill, Representatives Mike Rogers (R-MI) and Dutch Ruppersberger (D-MD), have maintained that there is no reason for concern, making inaccurate and misleading claims about the bill. They have argued that the bill does not contain overbroad provisions or definitions. Yet as EFF’s Mark Jaycox correctly notes:

The best example of a dangerous undefined term in the bill is found within the overly broad legal immunity for companies. The clause grants a company who acts in ‘good faith’ immunity for ‘any decisions made’ based off of the information it learns from the government or other companies. . . Companies should not be given carte blanche immunity to violate long-standing computer crime and privacy law. And it is notoriously hard to prove that a company acted in bad faith, in the few circumstances where you would actually find out your privacy had been violated.

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President Obama came to office promising government transparency and accountability, but throughout his presidency, has acted more aggressively than any other president to silence government whistleblowers who might expose corruption, fraud and general wrongdoing.  Since 2009, Obama has used the World War I-era Espionage Act six times to prosecute government officials suspected of leaking classified information.  A Bloomberg report on this intimidation campaign summarized the objections this way: “the president’s crackdown chills dissent, curtails a free press and betrays Obama’s initial promise to ‘usher in a new era of open government.’”

The logic behind the prosecution of whistleblowers is that a government has the right to protect itself and its own best interests, and as a result, should be allowed to punish treasonous citizens.  Woodrow Wilson argued that the Espionage Act allowed the government to protect itself against “insidious methods of internal hostil activities” and  declared it unlawful in a time of war to publish information that the president may determine to be “of such character that it is or might be useful to the enemy.”  Following this logic, it seems reasonable that Obama would  crackdown on whistleblowers.  The problem, though, Glenn Greenwald of The Guardian wrote, is that:

…This Obama whistleblower war has nothing to do with national security. It has nothing to do with punishing those who harm the country with espionage or treason.  It has everything to do with destroying those who expose high-level government wrongdoing. It is particularly devoted to preserving the government’s ability to abuse its power in secret by intimidating and deterring future acts of whistleblowing and impeding investigative journalism.

Greenwald makes an important point here; the common thread between the cases of  every whistleblower that has been prosecuted since 2009 is the growing strain of witnessing acts of fraud, corruption and flagrant unconstitutionality.

The four whistleblowers from the National Security Agency (“The NSA Four”) all echo the struggle of being asked to hold classified information that is clearly in violation of the law.  Thomas Drake, William Binney, J. Kirk Weibe and Edward Loomis make up the NSA Four, who were falsely accused of leaking confidential information in 2007.  According to The Nation, the NSA Four have now endured years of harassment for “exposing the waste and fraud behind a multibillion-dollar contract for a system called Trailblazer, which was supposed to “revolutionize” the way the NSA produced signals intelligence (SIGINT) in the digital age.”

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It’s been five years since Jim Scott embarked on his slog through the bureaucracy and secrecy of the Central Intelligence Agency (CIA) in order to piece together why the government spied on his journalist father.

Paul Scott, who covered national security for the Northern Virginia Sun during the 1960’s, would walk to his neighbor’s house to call his sources in order to avoid a wiretap his family thought him paranoid to worry about. It wasn’t until 2007, when the CIA released a collection of documents called the Family Jewels, which outlined its illegal activities during the 1950’s-70’s, that Jim learned his father’s caution was justified.

In a recent article for the Washington Post, Ian Shapira describes Jim Scott’s five-year battle with the CIA to turn over documents under the Freedom of Information Act (FOIA). Jim believes these documents will shed light on unanswered questions that linger after his father’s death.

Shapira’s article, in turn, raises a number of points worth elaborating on about the secrecy state.

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For the month of February, sequestration held the focus of the political arena, but in March, that focus has shifted to issues of government surveillance and Americans’ constitutional rights.  Senator Ron Wyden (D-OR) has been spearheading the political debate over surveillance and privacy, spurred by the warrantless wiretapping activities of the National Security Agency (NSA), but also by the nomination of John Brennan to head the CIA, and the release of the white paper explaining the process behind Obama’s “kill list.”

The white paper is not a legal document, but rather a summary of a classified memo prepared by the Justice Department’s Office of Legal Counsel.  Jameel Jaffer, deputy legal director of the American Civil Liberties Union (ACLU), says the publication of the memo affirms:

The power that the government has to carry out the targeted killing of American citizens who are located far away from any battlefield, even when they have not been charged with a crime, even when they do not present any imminent threat in any ordinary meaning of that word. So it’s a pretty sweeping power that’s been set out.

The memo argues that, “The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”

According to the memo, then, the government does not need any evidence to justify the targeted killing of American citizens. (more…)

Anwar al-Awlaki (also spelled al-Aulaqi) was never charged with a crime. Despite the lack of charges and trials, the US government executed the American-born citizen in a targeted drone strike in Yemen on September 30, 2011. The same drone strike killed fellow American Samir Khan.  Al-Awlaki’s 16 year-old son Adulrahman was killed in another strike a few weeks later, making three American murdered by their own government without any pretense of trial or due process.

The assassination became a public controversy during John Brennan‘s nomination to the head of the Central Intelligence Agency after his time as President Obama’s counterterrorism adviser. The New York Times ran a story based on interviews with various anonymous administration officials on Sunday, March 9, prompting accusations of serving as a mouthpiece for government propaganda.

The ACLU and Center for Constitutional Rights issued a joint statement blasting the Times’ article as “the latest in a series of one-sided, selective disclosures that prevent meaningful public debate and legal or even political accountability for the government’s killing program.”

Charlie Savage and Scott Shane, the Times reporters who wrote the article, uncritically describe Al-Awlaki using the government’s words. They call him “a senior operative in Al-Qaeda’s branch in Yemen” and a terrorist leader,” yet Fairness and Accuracy in Reporting noted both accusations remain unproven and dubious. The ACLU’s statement goes on to correctly point out:

Government officials have made serious allegations against Anwar al-Aulaqi, but allegations are not evidence, and the whole point of the Constitution’s due process clause is that a court must distinguish between the two. If the government has evidence that Al-Aulaqi posed an imminent threat at the time it killed him, it should present that evidence to a court….

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Why Holder’s letter carries little water

Last week, Senator Rand Paul (R-TX) forced a long overdue conversation in Washington about checks and balances on executive power. Yet few observers recognize the ultimate importance of his actions, or why the Senate’s confirmation of the new CIA director remained premature.

Prompted by Sen. Paul’s filibuster last Wednesday, Attorney General Holder wrote a letter the following day, acknowledging that our government lacks authority to execute Americans within the US without trial.

His concession is welcome, but must be taken with a grain of salt. It behooves observers to understand why, for several reasons, Holder’s statement may be less secure than we would ideally hope.

Accepting disclosure without investigation

Much of the controversy surrounding Brennan’s nomination concerned mere disclosure: whether the executive branch would let Congress read the administration’s legal analysis governing the targeted assassination program. President Obama apparently heard the message, admitting in his State of the Union address that more transparency is required.

The result proved underwhelming. One congressional committee received a single legal memo among several, which did not even purport to delineate the boundaries of the assassination program, but rather explored the use of deadly authority against a single target among several hundred who have been killed, including at least four US citizens.

Mere disclosure of some OLC memos to some Senators is insufficient.

Meaningful congressional oversight requires full access to all the legal memos, as well as active investigation of the underlying facts. It is not enough to simply read executive legal analyses paying lip service to constitutional values routinely violated on the ground.

The congressional intelligence committees, after all, were founded after robust investigations revealed widespread abuses by intelligence agencies, including the CIA, spanning decades and the terms of several presidents. Factual investigation has revealed more recent abuses, as well.

Last year, the Senate Intelligence Committee concluded a thorough investigation of torture, which produced a report recognizing torture as an international human rights abuse that ultimately undermined US national security by producing false intelligence, eroding pro American sentiment abroad, and helping our enemies recruit foot soldiers.

Yet, reflecting its pattern of embracing secrecy while claiming transparency, the Obama administration has refused to declassify the report. It is only because neither the press nor the public know the facts that irresponsible Hollywood fiction proved so problematic and controversial.

Forgotten in commentary on Brennan’s confirmation were some troubling details suggesting that, on both torture and drone strikes, transparency remains inadequate.

First, Senators had to fight tooth & nail to secure even the most minimal disclosure from the White House. Second, other congressional committees also sought access to the OLC assassination memos, but were denied.

Finally, beyond disclosure of the OLC’s legal memos are important questions about how the standards in them are applied to real facts. The Obama administration and CIA still refuse to answer congressional questions beyond the memos—such as, “How much evidence does the President need to determine that a particular American can be lawfully killed?” These questions are crucial, but Brennan’s confirmation could ensure that Congress receives few answers.

How the facts suggest elastic powers

Brennan spoke to the committee of the “great care” taken to ensure that drone strikes kill only their intended targets. What little we know about them suggests otherwise.

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