Nov 212009
 

The following editorial appeared in the Providence Journal:

It may have been mere incompetence, but it is chilling that the Obama Justice Department sent a subpoena for an undeclared reason to an Internet news site, Indymedia.us, demanding records of all traffic to that site on June 25, 2008. Even more ominously, it demanded “all other identifying information” of people who visited, including e-mail addresses, physical addresses, Social Security numbers, bank-account numbers, credit-card numbers, etc.

Finally, it issued a “gag order,” requiring the operators of the Web site of the Philadelphia-based Independent Media Center “not to disclose the existence of this request.” That is a form of government prior restraint of free speech, which is usually not permitted under the First Amendment.

When the administrator who provided space for the Web site balked, and called in a First Amendment lawyer, the Justice Department backed down and withdrew the subpoena. But it’s not explaining itself, and it is hard to tell what it was trying to do.

Read more on Projo.com.

Sep 252009
 

Commentary on the DOJ’s new policy on invoking the “state secrets” privilege has suggested that although it is a slight improvement over the Bush administration policies, it does not go far enough.  Steven Aftergood of Secrecy News adds to the growing chorus of concerns:

[…]

More surprisingly, the policy seems to have fumbled the question of judicial review.  A Justice Department news release about the Attorney General’s memorandum declared promisingly that “in order to facilitate meaningful judicial scrutiny of the privilege assertions, the Department will submit evidence [justifying the privilege] to the court for review.”

But strangely, the memorandum itself says no such thing (as noted by Bill Leonard).  Questioned about the discrepancy, a Justice Department official said yesterday that the intent to submit the evidentiary record to the court for review, though left unstated by the Attorney General, was “a necessary inference” and he said that it would be done “in every case.”  Maybe so.

And over on The Volokh Conspiracy, Amanda Frost comments:

[…]

By voluntarily checking its own assertion of the privilege, the Administration may have slowed the momentum by these other two branches to establish greater restrictions on executive use of the privilege. For those, like myself, who are concerned about the privilege’s abuse in the hands of any executive, the new policy is a mixed blessing. Yes, I am happy to see the Administration voluntarily establish constraints on its use of the privilege, but I am hesitant to leave the privilege completely to the executive’s discretion. Ironically, then, the very policy shift that limits the privilege today may be the one that prevents courts and Congress from limiting abuse of the privilege in the future.

Jul 222009
 

Lawsuit Seeks Public Disclosure of Oversight Records Amidst New Questions About Accountability

San Francisco – The Electronic Frontier Foundation (EFF) filed suit today against the Central Intelligence Agency (CIA) and a half-dozen other federal agencies involved in intelligence gathering, demanding the immediate release of reports about potential misconduct. EFF filed suit under the Freedom of Information Act (FOIA), requesting records of intelligence agencies’ reporting of activities since 2001 that might have been unlawful or contrary to presidential order.

“By executive order, federal intelligence agencies must submit concerns about potentially illegal activity to the Intelligence Oversight Board and the Office of the Director of National Intelligence,” said EFF Open Government Legal Fellow Nate Cardozo. “Intelligence agencies are given a wide berth for national security reasons, but at a minimum they’re required to act within the limits of the law. These records hold important details about how well the Executive Branch’s internal checks operate.”

The members of the Intelligence Oversight Board were appointed by the president to advise on intelligence
matters. Until last year, all intelligence agencies were required to report to the board “any intelligence
activities of their organizations that they have reason to believe may be unlawful or contrary to Executive order or Presidential directive.” The board was tasked with reviewing those reports, summarizing them, and forwarding to the president those that it believed described violations of the law. Last year, President Bush
reassigned many of these responsibilities, including reviewing agency reports, to the Director of National
Intelligence.

A storm of media coverage following this month’s disclosure that the CIA chose to keep Congress in the dark about a plan to train anti-terrorist assassin teams has brought the lack of transparency in intelligence reporting to a head. Lawmakers have accused the CIA of deliberately misleading Congress and are calling for an investigation into officials’ conduct. The reports the agencies have provided to the Intelligence Oversight Board undoubtedly contain information that will shed some light on incidents such as this — information that is necessary in order to provide appropriate oversight.

In addition to the CIA, EFF’s lawsuit names the Department of Homeland Security, the National Security Agency, the Department of Defense, the Department of Justice (including the FBI), the Office of the Director of National Intelligence, the Department of Energy, and the Department of State — all of which failed to comply with FOIA requests seeking records and reports of concerns about intelligence activity that might have stepped over the bounds of the law.

“The CIA is not the only agency that has faced questions about the legality of its intelligence programs,” said EFF Staff Attorney Marcia Hofmann. “Electronic surveillance and other intelligence activities have come under increasing scrutiny during the past several years. We’re seeking information that will shed light on incidents of intelligence misconduct, how often they happen, and how effective oversight is for controversial programs. The agencies must follow the law and release these records to the public.”

For the full complaint:
http://www.eff.org/files/filenode/intel_oversight/IOB.FOIA.Compalint.pdf

Source: EFF

Jul 112009
 

I’ve been reading a number of mainstream news sources and columnists on the report that was released yesterday about the President’s Surveillance Program. It’s interesting to see what others feel the headline should be or the take-home message should be.

Glenn Greenwald highlights one aspect of the report that I didn’t mention in my commentary yesterday but that certainly raised my eyebrows:

To say that “a viable legal rationale could not be found” and that there is no “legal basis to support” these Other Intelligence Activities is to say that they are criminal. And even DOJ lawyers so extreme that they were willing to approve the illegal NSA program we know about concluded this was so. Nonetheless, they went on for two years at least, and Bush ordered them to continue even after his own DOJ concluded they were criminal. Revealingly, Alberto Gonzales explicitly told top DOJ lawyers that the White House didn’t care about their views that what Bush was doing was illegal because that renowned legal scholar — George W. Bush himself — declared that they were legal:

 

But perhaps Jack Balkin wins the non-existent prize for best perspective and roundup of the report and where we go from here:

In sum: the Bush Administration used an illegal program that wasn’t effective, and when the public found out, it repeatedly used this ineffective program to scare Congress into passing laws that legitimated many of its illegal practices and gave the intelligence agencies greater leeway with less oversight.

Nice move, eh?

The lesson of this story is not that the Bush Administration used to do very bad things and thankfully we don’t do them anymore. The lesson of this story is that Congress needs to require the Executive Branch to implement New FISA in ways that are accountable both to Congress and to a set of ombudsmen in the executive branch that Congress should now create. Congress needs to require audits of the kinds of surveillance programs the executive branch is now running. It needs to create a set of new checks and balances within the executive branch in order to prevent the sloppiness and the end-runs around consultation and checks on abuse we saw in the Bush Administration. Thanks to a successful strategy of repeated and shameless demagoguery, President Bush has handed enormous new powers of surveillance off to his successor, and to every President thereafter, regardless of party. The question now is what, if anything, Congress plans to do to prevent future abuses.

See the sidebar for video of constitutional lawyer Jonathan Turley on Keith Olbermann’s show, discussing the report.

Jul 102009
 

A long-awaited report on the Terrorist Surveillance Program was released today. An unclassified version of the report prepared by the Office of Inspectors General for the Departments of Defense, Justice, the CIA, NSA, and DNI is entitled Unclassified Report on the President’s Surveillance Program (pdf). 

The report’s discussion of the President’s Surveillance Program (PSP) makes it clear that the Terrorist Surveillance Program (TSP) that the public became aware of in 2005 following publication by the New York Times was only one part of a much broader program expanded by Bush after 9/11 to include a variety of activities. The other activities, referred to in the report as “Other Intelligence Activities,” remain  “highly classified” and are not described in the report, but are also subsumed under “PSP.” The PSP program resulted in “unprecedented” collection of data.

According to the report, although John Yoo reportedly prepared several preliminary opinions relating to hypothetical events in September and October of 2001, the first formal Office of Legal Counsel (OLC) opinion on the legality of PSP was  not drafted until after President Bush formally authorized the program in October 2001. According to the report:

The first OLC opinion directly supporting the legality of PSP was dated November 2, 2001, and was drafted by Yoo. As discussed in Section IV of this report, deficiencies in Yoo’s memorandum identified by his successors in the Office of Legal Counsel and the Office of the Deputy Attorney General later became critical to DOJ’s decision to reassess the legality of the program in 2003.

[…]

As the only OLC official read into the PSP through early 2003, Yoo consulted directly with White House officials about the PSP during this period. Because the DOJ OIG was unable to interview Yoo, it could not determine the exact nature and extent of these consultations. The DOJ OIG was also unable to determine whether Attorney General Ashcroft was fully aware of the advice Yoo was providing directly to the White House about the PSP.

Of course, much that the public would want to know is omitted from the unclassified version of the report, but there is a significant amount of criticism that is left for the public to mull over. One such aspect concerns the DOJ’s handling of PSP-collected information as it related to DOJ’s discovery obligations in international terrorist prosecutions. The DOJ OIG recommended that DOJ reviews its obligations, but also that the DOJ

carefully consider whether it must re-examine past cases to see whether potentially discoverable but undisclosed Rule 16 or Brady material was collected under the PSP, and take appropriate steps to ensure that it has complied with its discovery obligations in such cases.

That Yoo was pretty much the sole source of legal justification memos for PSP seems pretty evident from reviewing the report. It also seems clear that as more people in OLC were read into the program, the OLC began seriously questioning Yoo’s memoranda and the legality of the program, while Gonzales and others in the White House kept trying to persuade Yoo’s successors that the program was legal.

Perhaps some of the greatest drama in the report is provided in the detailed description of the conflict between the White House and DOJ counsel in March 2004, which included the scene in Ashcroft’s hospital room where, having disregarded his wife’s request that her husband was too ill, White House Chief of Staff Andy Card and White House counsel Alberto Gonzales still tried to pressure Ashcroft into signing a reauthorization of the program.

Later in the report, the DOJ OIG concluded that

the White House’s strict controls over DOJ access to the PSP undermined DOJ’s ability to perform its critical legal function over the PSP’s early phase of operation.

The report also indicated that because Ashcroft would not be interviewed, it was unclear whether he had aggressively pursued getting more staff read into the program when the White House did not approve of Ashcroft’s chief of staff, David Ayres, and Deputy Attorney General Larry Thompson being read in.

The report also criticized Alberto Gonzales for providing testimony to Congress that was

confusing, inaccurate, and had the effect of misleading those who were not knowledgeable about the program.

Overall, the impression given is that by restricting details of the program to one and only one person in the OLC who would be likely to be sympathetic to the President’s views, the White House was able to produce “paper” justifying the program until March 2004 by which time others who had been read into the program raised serious doubts about the legality of the program.

Unfortunately, the public still has no court ruling on important issues such as whether the President’s Article II powers trumps FISA. If the courts would stop tossing out lawsuits based on “state secrets” defense, maybe we’d get an answer. If we don’t, then eventually we may find ourselves in a similar situation.

Update/Related: See NY Times coverage, as well as Washington Post. I’m sure everyone will have something to say on the report.