Posts Tagged ‘state secrets’

Killing us softly

Wednesday, March 13, 2013 at 1:24 pm by

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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Clapper v Amnesty: Courts and Congress v Our Constitution

Wednesday, February 27, 2013 at 11:18 am by

Tuesday’s decision by the Supreme Court in Clapper vs Amnesty Int’l reflects judicial formalism at its worst. The decision abandons fundamental rights and the courts’ constitutional mandate, while placing government agencies above the law, so long as they commit their abuses in secret.

Clapper is a constitutional travesty of the highest order, reflecting the erosion of privacy, judicial independence, and constitutional government all at once. By allowing executive secrecy to insulate violations from review, five Justices of the Supreme Court have effectively killed what shreds once remained of the Fourth Amendment.

Every American should be gravely concerned, and anyone who still considers America “the land of the free” should carefully reconsider their assumptions. Several elements of the decision are disturbing, especially when viewed in a broader context beyond the case itself.

Most obviously disappointing is the result of the ruling, not only for the plaintiffs, but also anyone who uses the phone system or Internet.

A scandal in plain sight

The Clapper saga started with the Foreign Intelligence Surveillance Act, which was first passed in the 1970s to restrict domestic spying by government agencies. It was prompted by decades of abuses by the FBI, CIA, and other agencies that Congress investigated and found conducting “a sophisticated vigilante operation aimed squarely at suppressing the legitimate exercise of First Amendment rights of speech and association,” including a documented government campaign to “neutralize” Martin Luther King, Jr. and other civil rights leaders.

In 2002, the Bush administration authorized the National Security Agency (the NSA) to begin a secret warrantless wiretapping program in clear violation of the FISA law. It remained secret, at one point prompting a dramatic intra-executive showdown and threats of a mass resignation by Justice Department officials under the Bush administration, until the New York Times exposed the program in late 2005.

Aside from generating an earthquake across Washington, the first results of the Times‘ expose included government threats to prosecute the journalists. Their only “crime” was exposing the public to an issue that should never have been secret in the first place.  While prosecutors thankfully opted not to prosecute Lichtblau & Risen, others continued to face prosecution for pursuing transparency in the public interest.

In the middle of the 2008 presidential election race, Congress amended FISA to permit what the original statute had been passed to prohibit. Rather than require the agency to comply with the long-standing law, however, Congress instead watered down the law to allow the agency’s abuses to continue.

Congress’ 2008 amendments to FISA doomed oversight. As the dissenting Justices in Clapper observed, the 2008 amendments allow NSA monitoring not only of agents of a foreign power, but also law-abiding Americans. Congress in 2008 also removed FISA’s original requirement for the NSA to identify specific targets and locations for surveillance, enabling the agency to conduct bulk collection, or dragnet surveillance. Finally, the 2008 amendments subsidized corporate crime, extending a corporate subsidy in the form of immunity from lawsuits alleging privacy violations, ensuring that telecommunications companies could continue facilitating unconstitutional surveillance without fearing lawsuits from a justifiably hostile public.

That was the context in which a group of activists, journalists, and lawyers among the most likely suspects for NSA surveillance filed suit.

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News Digest 12/17/12

Monday, December 17, 2012 at 5:00 pm by

Detainee’s death pronounced suicide, but details remain murky

Tuesday, December 4, 2012 at 7:14 am by

In September, Yemeni citizen Adnan Farhan Abdul Latif died at Guantanamo Bay after 10 years of imprisonment without charge. The New York Times reported last Wednesday, November 28 that US military medical examiners concluded that his death was a suicide via overdose on psychiatric medication. Yet, as psychologist Jeff Kaye explains, the determination raises more questions than it answers.

Which drugs were involved, and how many? How were they delivered (orally? subcutaneously?)? And what were the precise circumstances leading up to the overdose? Is there a possibility that his overdose was accidental, or a possibility that others were involved? No information has been released about whether Latif was administered any medication prior to his death. Nor has the autopsy itself been released. Yemen authorities have been pushing for more information since Latif’s death, yet the facts that have been released are, according to the New York Times, “murky.”

Latif’s death is not the first at Guantanamo, nor the first to be pronounced a suicide.  In 2006, three Gitmo prisoners died suddenly and violently, and the U.S. Naval Criminal Investigative Service pronounced their deaths to be suicides after a two year investigation. The finding was initially difficult to question, as the NCIS initially refused to disclose its report. Yet parts of the report were later made public in response to a Freedom of Information Act (FOIA) request, and careful analysis revealed that the official report of suicide was implausible. Moreover, four members of Military Intelligence came forward with stories that contradicted the official report, as well as evidence that “authorities initiated a cover-up within hours of the prisoners’ deaths.”

Given this background, it is little wonder why many observers are seeking more information about Latif’s death. Jeff Kaye has raised the concern that Latif’s death might have been due to covert drug administration or accidental death via “polypharmacy“: the prescription of too great a quantity of drugs and/or a hazardous combination of drugs. The Pentagon has, after all, been criticized for polypharmacy before.

Kaye also calls attention to the fact that “chemical restraints” (i.e. forcibly injected drugs)–were used on Latif “on numerous instances” at Guantanamo. Truthout and blogger Marcy Wheeler have jointly filed a FOIA request seeking Latif’s medical records, with the aim of determining whether Latif was administered drugs in the hours prior to his death. Much more information is needed; the fact that a detainee died of a drug overdose hardly indicates suicide.

Will Obama’s second term finally fulfill his 2008 promises? (Part I)

Friday, November 9, 2012 at 10:17 am by

This is the first part in a series examining opportunities for the Obama administration to return, in the wake of the 2012 election, to the president’s promises from the 2008 campaign to restore liberty and security. Part II and part III are also available.

President Obama’s reelection has sparked an onslaught of analysis attempting to define the agenda for his second term. Will it reflect the vision of restoring liberty and security on which the president ran in 2008, or the disappointing passivity towards the national security state that characterized his first term?

More to the point, will President Obama’s legacy include emerging American authoritarianism, or instead the recovery of constitutional freedoms lost over the past decade? While machinations in Washington will of course influence the answer, We the People will play a crucial role, well beyond the 2012 election, in determining the outcome.

Obama’s legacy of constitutional violations

With the broad strokes that history affords the past, any president’s legacy usually shrinks within a decade to two or three elements. For instance, Clinton is remembered for presiding over the tech boom and resulting federal surplus, dismantling welfare and escalating mass incarceration, and surviving a partisan impeachment effort prompted by sophomoric sexual indiscretion.

George H. W. Bush’s legacy includes the first Iraq war, failing to energize the economy, and a premature pledge not to raise taxes. We remember Ronald Reagan for overcoming the Soviet Union and its satellites (even if his methods ensured the contemporary budget crisis, created al-Qaeda, and emboldened Iran), heralding “morning in America” to end a recession, and after surviving an assassination attempt, conveniently growing unable to recall more or less anything about compounding scandals that stained his second term.

In these broad strokes, President Obama’s legacy will likely include memories of the historic debate over healthcare policy in 2009, and the recurring budget crises that, combined with GOP intransigence, have periodically brought Washington to a standstill under his administration. The most enduring part of his legacy, however, will be the entrenchment of the national security state on his watch.

Beyond merely failing to reverse the trajectory of the Bush-Cheney administration, Obama’s first term extended it, pioneering new abuses while entrenching old ones.

Unlike Obama, Bush & Cheney never asserted the authority to kill US citizens based on their speech.

Unlike Obama, Bush & Cheney never signed into a law a statute granting the military the power to detain any American without evidence or proof of crime.

While Bush & Cheney violated international law by authorizing torture, it took the Obama administration to decide  that such criminal acts would go unpunished (or even investigated), ensuring their recurrence and nailing the coffin of international human rights.

The Obama administration’s prosecution of whistleblowers who sacrifice their jobs to defend the public interest has reached unprecedented levels, as have deportations of undocumented workers, their families, and occasionally, even US citizens. Rather than repudiate the Bush & Cheney paradigm, Obama has unfortunately perpetuated it.

A former President’s warning

50 years ago, a president with the deepest military roots among any who has held office since then–no mere General, but the Supreme Allied Commander during World War II, Dwight “Ike” Eisenhower — issued a disturbing warning about a threat to our democracy posed by “an immense military establishment and a large arms industry” that, together, he described as “the military-industrial complex.” President Eisenhower said, in no uncertain terms, that:

“[W]e must guard against the acquisition of unwarranted influence…by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.

We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.”

Ike observed the larval stages of a dynamic that has grown only more pernicious since he left office. In the decade since 9/11, under Presidents Bush and Obama alike, our military-industrial complex has initiated not only various military conflicts abroad, but also a domestic war on the constitutional rights of the American people.

Secret and increasingly immune to public accountability, if not above the law altogether, and insulated from accountability by elected leaders from each of the major political parties, an alphabet soup of federal agencies has emerged to pursue a duplicative, wasteful, and constitutionally abusive national security agenda.

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Four more years…of what, exactly?

Thursday, November 8, 2012 at 7:46 am by

Image Source: Ari Levinson, via Wikimedia Commons

The refrain is familiar: President Obama faced too many headwinds in his first four years to fulfill his various campaign promises, including his 2008 theme of restoring liberty amd security. In his second term, we hear, he will finally achieve the real change he promised four years ago, when campaigning to end and reverse the authoritarian legacy of President Bush.

This conventional wisdom misses some inconvenient truths about the power President Obama has enjoyed, but chosen not to use. There is no question that at many points in his time as president, his administration has faced an astoundingly hostile Senate, and an extremely conservative Supreme Court.

There is no question, however, that the Executive branch has an astounding amount of power in the US. President Bush (really, under the insidiously expert direction of Vice-President Dick Cheney) repeatedly and consistently expanded the power of the Executive under the “unitary executive  theory”, creating an environment of secrecy and unaccountability in which his actions went unchecked.

When he was campaigning in 2008, Obama said he opposed the unitary executive. He has now embraced the powers that come with it wholeheartedly, from aggressively guarding state secrets (whether by prosecuting whistleblowers, asserting the state secrets privilege to keep courts from reviewing national security abuses, or simply by hiding facts from the press) to initiating military aggression overseas without congressional approval. Why, then, with all the power at his disposal, is Obama’s record in the war on terror so abysmal?

It turns out that President Obama has actually used his authority as the nation’s chief executive not to diminish, but rather to expand, the so-called war on terror, extending its abuses of civil liberties to new heights even beyond the Bush-Cheney administration.

Under the Obama administration, the Justice Department has aggressively pursued many of the same tactics as Bush’s Justice Department, including using the state secrets doctrine to block challenges to surveillance, expanding definitions of terrorism to include non-violent activities such as merely translating texts between languages, and prosecuting “counterterrorism” prosecutions of fake plots initiated by FBI informants. It has also stretched even beyond the Bush-Cheney high water marks, engaging in illegal assassinations of American citizens overseas, and signing a law that could enable indefinite military detention within the US.

In the first instance, regarding state secrets, one case in particular stands out: Al-Haramain Islamic Foundation v. Obama. In that case, Al-Haramain, a charity organization, found itself listed as a supporter of terrorism. Unlike every other target of government surveillance, Al-Haramain then accidentally received a faxed document proving that it had been targeted by warrantless wiretapping. This crucial document placed the case in a different setting than Clapper v. Amnesty Int’l, for instance, which the Supreme Court heard just last week to decide whether the NSA stands above the law or is instead subject to suit.

Haramain prompted a bizarre saga, in which first the Bush, but then the Obama administration, asserted the state secrets doctrine to prevent Al-Haramain’s attorneys from using (or sometimes even mentioning) the leaked documents. In fact, Justice Department attorneys threatened to seize documents from Judge Vaughn Walker if Al-Haramain attorneys were provided with access to them. The Justice Department pursued the case to the Ninth Circuit Court of Appeals, where the Court ruled that the government did not have to pay damages, but went so far as to criticize the Justice Department’s tactics in the litigation.

As to expanding definitions of terrorism, another recent case stands out as an egregious example of the Obama administration’s assault on civil liberties: Holder v. Humanitarian Law ProjectIn this case, the Humanitarian Law Project (HLP) challenged material support provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA), particularly to assert limiting principles based on the First Amendment.  HLP wanted to:

advise the Kurdistan Workers’ Party (PKK) — which for years has been on the U.S. terrorist list — on filing human rights complaints with the United Nations and conducting peace negotiations with the Turkish government.

Attorney General Eric Holder pushed for a draconian interpretation of AEDPA that would outlaw any aid to groups designated as promoting terror, including, perversely, aid aimed to encourage peace. The Supreme Court agreed, allowing the definition of material support to include even cases where the defendant has neither committed violence, nor ever supported it.

The FBI’s record has not been much better under the Obama administration. Since the abuses of COINTELPRO, there has been a ten year term limit for directors of the FBI. In July of 2011, Obama signed into law a two year extension for Robert Mueller, who had directed the FBI under Bush, despite the FBI’s serious civil liberties abuses too extensive for this article. In particular, as we have discussed many times in this blog, the FBI continues to use agent provocateurs to fabricate terrorism charges, typically against troubled or mentally ill young men. These cases are then prosecuted wholeheartedly, and lauded as counterterrorism successes, as much by Obama’s Justice Department as by its predecessors.

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News Digest 10/31/12

Wednesday, October 31, 2012 at 5:00 pm by

A day in court? Maybe not in America

Wednesday, October 31, 2012 at 10:25 am by

The following op-ed was written by Sudha Setty, Professor at Western New England University School of Law in Springfield, MA, who specializes in comparative national security. It was originally published in The Herald News on October 28, 2012, and on Truthout.org

We Americans tend to think that serious grievances deserve a day in court. Yet here in America — unlike some of our allies — courts have eroded access to justice for people injured by misguided national security efforts.

We see the centrality of courts in action every day, from the Supreme Court’s decision on Obamacare this spring to George Zimmerman facing trial for killing Trayvon Martin in Florida. Getting one’s day in court is not a guarantee of victory. But it is fundamental to holding our government and each other accountable.

On Oct. 29, the Supreme Court will hear oral argument in Clapper v. Amnesty International, a case about dragnet domestic surveillance unsupported by warrants. The court’s decision will largely determine whether this aspect of counterterrorism will remain subject to courts, or instead be placed above them.

Over the last decade, judges have repeatedly told torture victims that they don’t have the right to a day in court when they seek compensation. Even when victims have substantial publicly available evidence to support their claims, our government and its private contractors have remained above the law.

Under most circumstances, these plaintiffs would have their day in court. Our constitutional and civil rights demand that. But when it comes to national security, the Bush and Obama administrations asked courts to toss these cases, even before plaintiffs have a chance to share their side of the story, invoking the state secrets privilege and other procedural hurdles.

The courts have been entirely complicit, abdicating their role of providing a forum in which these claims can be heard. Instead of examining the facts and applying the law, our courts routinely dismiss cases at the earliest stages.

American courts have been overly formalistic, nervous and sheepish, consistently bowing before government claims that allowing (even potential) accountability for human rights abuses would somehow be tantamount to inviting terrorism.

Even worse, judges have accepted these claims with little question, washing their hands of the tough business of demanding that our government justify its actions. They echo the misplaced judicial deference that affirmed our government’s decision to intern Japanese Americans during World War II.

Yet other countries facing national security issues for decades have already developed successful alternatives.  The Israeli Supreme Court has addressed many security-related claims since its founding. It hears a case if at all possible, and deals with issues related to secret information as they arise. None of this guarantees a favorable outcome for a plaintiff, but it does give everyone their day in court.

The Israeli Supreme Court’s reasoning is worth repeating here. In a case challenging an Israeli military action involving targeted killings (another area in which the U.S. government has successfully evaded judicial review), the Israeli Supreme Court rejected claims that security cannot exist if the government is made accountable for its actions, saying that “where the implementation of a security policy involves a violation of human rights, the court should examine the reasonableness” of the government’s actions.

In England, too, courts have pushed back against their own history of deferring to government secrecy. Relying on principles of open justice, courts have held that the government must disclose information on alleged rendition and torture. They bucked tremendous political pressure, from both the British and U.S. governments.

Unlike their American counterparts, judges in England and Israel have made clear that the job of courts is to make a democratic government accountable to the people when political actors do not.

In the Clapper case, the Obama administration won’t disclose whether the plaintiffs were actually under surveillance, but will paradoxically argue before the Court that the plaintiffs don’t deserve a day in court because they can’t prove (due to government secrecy) that they, in particular, were actually monitored.

It would be a shame — for our country, and for our courts in particular — if the administration’s position prevails. We should be skeptical when our government undermines access to justice, especially when some of our allies are able to maintain this right in the face of equally (if not more) serious national security considerations.

In the end, when courts are unwilling to afford people their day in court, it’s not just the individual plaintiffs who suffer, but rather American democracy as a whole.

 

Whistleblower sentenced for exposing torture during Bush administration

Monday, October 29, 2012 at 11:52 am by

cia-logoOn Tuesday, ex-Central Intelligence Agency counterterrorism operative, John Kiriakou, pleaded guilty for violating the Intelligence Identities Protection Act for disclosing information about a former associate to Matthew Cole, who then was a reporter for ABC News. This news comes just two months after the Justice department stated that it would not charge any C.I.A. officials who were involved with the interrogation of detainees during the Bush administration.

Kiriakou could have faced a sentence of multiple decades, but the recommendation of the prosecutor has been thirty months in prison. This sentencing is due to dropping multiple other charges, including helping New York Times reporter, Scott Shane, identify a colleague and lying to the C.I.A. publications board review of his 2010 memoir, “Reluctant Spy: My Secret Life in the C.I.A.’s War on Terror.”

In 2002 Kiriakou was in charge of the team that found Abu Zubaydah in Pakistan, but really came into the public eye in 2007 when he was interviewed by ABC News where he expressed that waterboarding was torture, but necessary for C.I.A. business. For the Obama administration the guilty verdict was following the intense pressure put on the unauthorized release of government secrets. Presently, six former and current officials have been charged with disclosing government secrets during the Obama Administration. This statistic is twice the number of cases presented by all former presidents combined.

The sentence hearing will be held on January 25, 2013, and the criminal investigation began in 2009 when lawyers for suspects at Guantanamo Bay were identifying witnesses to their client’s torture during the interrogations. The identification of the witnesses were linked back to the knowledge that Kiriakou passed onto Cole.  Director of the C.I.A., David Petraeus, claimed that the guilty plea was the first successful use of the Intelligence Identities Act in the past three decades and “an important victory for the intelligence community.” This case truly shows the backlash for whistleblowers like Kiriakou. Kiriakou’s exposing the Bush administration’s illegal torture of suspected terrorists has been made into a crime, in which he will spend two and a half years in prison. Unfortunately, telling the truth has its consequences in the Untied States, and this is an indicator of the way in which the government respects the rights of detainees, but also the right of the American public to government accountability.

 

News Digest 10/16/12

Tuesday, October 16, 2012 at 5:00 pm by