The prosecutor who led the case in the destruction of CIA videotapes may get a call from U.S. District Court Judge Alvin Hellerstein of the Southern District of New York on how to resolve litigation over the recordings, the New York Law Journal reported Tuesday.
At a hearing before Hellerstein, Assistant U.S. Attorney Tara LaMorte told him that a career federal prosecutor in Connecticut, John Durham, could speak with him over the case brought by the American Civil Liberties Union.
The ACLU first filed the Freedom of Information Act suit in 2003 to obtain the records. But CIA officials destroyed the tapes in 2005, violating Hellerstein’s order from 2004 to preserve the evidence.
In 2008, then-Attorney General Michael Mukasey chose Durham to lead the Justice Department’s investigation into the destruction of the 92 videotapes, two of which showed accused al-Qaeda detainees Abu Zubaydah and Abd al-Rahim al-Nashiri being subjected to waterboarding. Al-Nashiri is accused of planning the 2000 USS Cole bombing in Yemen.
President Barack Obama and Attorney General Eric Holder have both called waterboarding torture. In 2009, Holder asked Durham to also probe the alleged abuse of about a dozen prisoners whom CIA personnel or contractors interrogated. Former Vice President Dick Cheney had said that Holder’s decision to expand the investigation was “political.”
Durham found no criminal wrongdoing in the investigation and did not recommend that the DOJ bring charges over the destruction of the tapes.
Hellerstein wants the ACLU lawyers and prosecutors to submit briefs on what steps should be taken to resolve the case. “This kind of destruction never should have occurred,” Hellerstein said, according to the New York Law Journal. “It tells the court the CIA does not trust the judges to have proper regard for the security interests of the United States.”
Assistant United States Attorney John Durham is close to completing a preliminary review of whether there is evidence that CIA agents or contractors violated the law when they used brutal methods to interrogate terror detainees, Attorney General Eric Holder said in speech Thursday night.
Holder, speaking in a question and answer session after his remarks at the University of the District of Columbia Law School, said Durham is ”close to the end of the time that he needs and will be making some recommendations to me.”
Holder’s comments were his fullest status report to date on the one of the Justice Department’s most politically sensitive inquiries. On Friday, several Justice officials cautioned that although Durham is nearing completion, it may take weeks or months to absorb his findings and decide what steps, if any, to pursue next.
Holder said the investigation would determine whether any intelligence officers or contractors went beyond the restrictions, outlined by the Office of Legal Counsel in a series of classified legal opinions which were written during the George W. Bush administration and which have since been disavowed.
The preliminary inquiry has created tensions between the Justice Department and the CIA, key partners in the government’s effort against international terrorism. Leon Panetta, the CIA Director, opposed Holder’s decision to open the inquiry in to the agents’ conduct, and in November 2009, seven former CIA directors wrote to President Barack Obama asking him to halt the investigation.
The interrogation opinions permitted harsh techniques like waterboarding that Holder has said amounted to torture. The opinions also directed that the interrogations, using so called “enhanced techniques,” be carried under rules intended to prevent serious injury or death, though human rights groups have condemned the methods.
“What I made clear is that for those people who acted in conformity with Justice Department opinions from the Office of Legal Counsel that said you could do certain things… people who acted in good faith in line with the Department of Justice guidance, will not be the people we are looking at or interested in,” Holder said Thursday.
“It’s a question of whether people went beyond those pretty far-out OLC opinions, people who went beyond that,” Holder said. “That’s what we’re looking at.”
Durham was appointed in August 2009 to look into the treatment of prisoners at so-called “black sites” overseas. In 2008, Durham had been appointed by then-Attorney General Michael Mukasey to investigate the destruction of dozens of CIA videotapes of detainee interrogations. Holder made no mention of the status of that aspect of Durham’s inquiry.
At the appointment in August, Holder said “neither the opening of a preliminary review nor, if evidence warrants it, the commencement of a full investigation, means that charges will necessarily follow.”
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As it debated legislation to reauthorize U.S. intelligence programs, the House Friday morning at the last minute stripped language from a wide-ranging amendment that would have prohibited U.S. intelligence operatives from engaging in cruel, inhuman or degrading treatment.
The torture prohibition had been included Thursday in a package of amendments offered by House Intelligence Committee Chairman Silvestre Reyes (D-Texas) that was debated on the House floor. The section of the amendment was titled, “Cruel, Inhuman, and Degrading Treatment in Interrogations Prohibited.”
According to Politico, the language was drafted by liberal Washington Democratic Rep. Jim McDermott, and included in Reyes’ package of amendments at the insistence of Rules Committee Chairwoman Louise Slaughter (D-N.Y.) .
The torture language drew immediate criticism from key House Republicans and conservative opinion leaders off Capitol Hill. Peter Hoekstra (R-Mich.), the ranking minority member of the Intelligence Committee, complained, “Republicans brought this to the attention of the American people, who were rightly outraged that Democrats would try to target those we ask to serve in harm’s way. … The annual intelligence bill should be about protecting and defending our nation, not targeting those we ask to do that deed and giving greater protections to terrorists.”
Before the House voted on the amendment, leaders decided that the provision should be removed, judging that its inclusion could put passage of the entire bill at risk. That required a hurriedly scheduled Rules Committee meeting Thursday evening to approve a rule that modified the Reyes amendment, to take out the torture provision. All of that delayed further action on the amendment, and the bill, until Friday.
When the House finally voted on the Reyes amendment Friday morning, it was on the modified version — sans the torture language, which would have specifically prohibited waterboarding, inducing hypothermia or heat injury, forcing a person to be naked or to perform a sex act, or conducting mock executions. The amendment also would have banned interrogators from forcing a prisoner to maintain stress positions or to desecrate a religious object.
Under the original language U.S. intelligence members could face up to 15 years in prison for committing an act of cruel, inhuman or degrading treatment or up to life in prison if a detainee died during an interrogation in which such treatment occurred. The amendment also would have applied to medical professionals who take part in interrogations.
The modified Reyes amendment was approved, 246-166, and the House went on to pass the intelligence authorization by a tally of 235-168.
In action on Thursday, the House gave its voice-vote approval to an amendment that would require the inspector general of the intelligence community to review available intelligence to determine if there is any credible evidence of a connection between a foreign entity and the anthrax attacks in the United States in the fall of 2001.
The amendment was sponsored by Rush Holt (D-N.J.) and Roscoe Bartlett (R-Md.). Holt said that the FBI, which announced just last week the completion of its lengthy probe into the anthrax attacks, had been too hasty in concluding that a single man – scientist Bruce Ivins — who worked in Frederick, Md., in Bartlett’s congressional district — was responsible.
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Bob Barr, who said at a Conservative Political Action Conference panel today that waterboarding is torture, told Main Justice that it is appropriate for the Justice Department to open investigations into CIA agents who used waterboarding.
“Is it appropriate to look into those who violated the law? Sure!” Barr told Main Justice as he left the stage after the panel.
Barr is a former federal prosecutor (U.S. Attorney for the Northern District of Georgia from 1986-90) who also served as a member of the House of Representatives from Georgia from 1995-2003. He was the Libertarian Party candidate for president in 2008.
Separately, conservative commentator Ann Coulter told Main Justice that Attorney General Eric Holder’s first year in office is “about what I expected.”
Once the target of numerous protesters, “torture” memo author John Yoo doesn’t seem to attract them like he used to.
Yoo, who helped craft the legal authorization for waterboarding and other harsh interrogation methods, was bothered by only about eight protesters yesterday outside a Rotary Club meeting in San Mateo, Calif., the San Francisco Bay area’s Daily News reported. At a January speaking engagement at the American Enterprise Institute in Washington, D.C., there were no protesters present, according to Main Justice’s Ryan J. Reilly.
But back in August, a group of protesters descended on University of California Berkeley’s Boalt Hall School of Law in order to make it difficult for Yoo, a professor at the university, to make it to his first civil law class of the semester. Campus police arrested at least four people who didn’t vacate the law school building.
Although few in number, the protesters in San Mateo tried to compensate with costumes, including orange prison jumpsuits and a giant head resembling Yoo’s, according to the newspaper.
According to The Daily News: “Yoo joked that the event had been run so efficiently that the protesters showed up in prison garb ready to go to jail. But the people on the outside felt that Yoo should be the one in prison — for life.”
“We’re here because he’s a war criminal and should not be honored in any way,” Susan Harman told the newspaper.
Last month, it was reported that an upcoming report from the Justice Department’s Office of Professional Responsibility will clear Yoo of wrongdoing for the his role in writing the memos.
Officials from the Central Intelligence Agency participated in a government-wide discussion on Christmas Day about how to handle a Nigerian national who allegedly attempted to blow up a Detroit-bound passenger airliner, the Los Angeles Times reported today, citing unnamed sources.
The decision to advise Umar Farouk Abdulmutallab of his Miranda rights rather than put him in military custody for interrogation was made after “hastily called teleconferences” between representatives of the Department of Justice, Federal Bureau of Investigation, State Department and CIA, the newspaper said. By that time, the suspect had stopped talking with law enforcement, the Times said.
The Times story appeared as the Justice Department found itself increasingly on the defensive over the matter.
Republicans say Abdulmutallab should have been taken into military custody for questioning by intelligence officials. Director of National Intelligence Dennis Blair, a Barack Obama appointee, has also criticized the decision to charge Abdulmutallab criminally. The issue has become politically sensitive for Holder, with GOP senators demanding he come to Capitol Hill to explain his role. Sen. Lamar Alexander of Tennessee, the GOP’s No. 3 leader in the Senate, even suggested Sunday that Holder consider resigning over the incident.
The Times story appeared to push back against the criticism by suggesting the CIA had been at the table all along.
It still isn’t clear who precisely authorized treating the accused al-Qaeda operative as a criminal suspect with rights against self-incrimination. No one in the government has come forward publicly yet to explain how the decision was made, though White House spokesman Robert Gibbs on Jan. 21 said he believed that decision ultimately lay with Attorney General Eric Holder.
Citing unnamed sources, the LA Times said after Northwest Airlines Flight 253 landed in Detroit on Christmas Day, Abdulmutallab was taken to a hospital for treatment for burns allegedly sustained after he tried to ignite explosives in his underwear.
He was question by two experienced counter-terrorism agents who have “been around a long time and have traveled internationally,” an anonymous source told the newspaper.
The questioning lasted just shy of an hour. The agents did not immediately tell him he had the right to remain silent or let his words be used against him at trial, citing an exemption that allows law enforcement officials to pose questions if they believe another crime is about to be committed. The suspect gave information that suggested other terrorism plots were in the works, the newspaper said.
But then, doctors said they needed to sedate Abdulmutallab to treat his injuries. By the time Abdulmutallab was available again for questioning, he had clammed up. The decision was made to read him his Miranda rights. The Obama administration’s policy is to try terrorism suspects arrested on U.S. soil in federal courts rather than in military commissions.
Department of Justice spokesman Matthew Miller last week released a list of other successful terrorism prosecutions, including that of Zacarias Moussaoui, a French citizen and al-Qaeda operative who was arrested after the Sept. 11, 2001 attacks and convicted in the Eastern District of Virginia.
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An upcoming report by the Office of Professional Responsibility clears the key authors of a legal memorandum justifying waterboarding of allegations that they violated professional standards, Newsweek reports.
An earlier draft of the report concluded that former Office of Legal Counsel lawyers Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor, failed to meet their professional obligations when crafting a 2002 memo blessing the use of harsh interrogation techniques.
Associate Deputy Attorney General David Margolis, a career lawyer, “downgraded that assessment to say they showed ‘poor judgment,’” during a final review of the report, according to Newsweek. Under department rules, poor judgement does not rise to the level of professional misconduct — which means no referrals to state bar associations for potential disciplinary action.
It’s unclear why Margolis softened the initial findings. A Justice Department official told Newsweek he acted without input from Holder.
The report, which has been expected for months, is undergoing declassification. The final version will provide fresh details about how waterboarding was adopted and the role top White House officials played in the process, Newsweek reports. For instance:
Two of the most controversial sections of the 2002 memo—including one contending that the president, as commander in chief, can override a federal law banning torture—were not in the original draft of the memo, say the sources. But when Michael Chertoff, then-chief of Justice’s criminal division, refused the CIA’s request for a blanket pledge not to prosecute its officers for torture, Yoo met at the White House with David Addington, Dick Cheney’s chief counsel, and then–White House counsel Alberto Gonzales. After that, Yoo inserted a section about the commander in chief’s wartime powers and another saying that agency officers accused of torturing Qaeda suspects could claim they were acting in “self-defense” to prevent future terror attacks, the sources say. Both legal claims have long since been rejected by Justice officials as overly broad and unsupported by legal precedent.
We’ll have more throughout the day.
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A legal fund has been launched on behalf of appeals court Judge Jay S. Bybee, the former head of the Justice Department’s Office of Legal Counsel who co-authored the so-called torture memos.
The fund, according to supporters who established it, would pay “for costs and expenses he is incurring or may incur” related to his service with the Justice Department or on the U.S. Court of Appeals for the Ninth Circuit, where Bybee has sat since 2003. The legal fund was first reported by Newsweek.
Bybee is one of the subjects of long-awaited ethics report by the Office of Professional Responsibility regarding the conduct of former DOJ lawyers who authorized the use of harsh interrogation tactics against suspected terrorists . The report is expected to be released this month, Attorney General Eric Holder told the Senate Judiciary Committee on Wednesday.
Because Bybee is now a judge, he could be subject to impeachment proceeding based on the memos, according to Talking Points Memo. Earlier this year, a special prosecutor was appointed to determine whether government officials or Central Intelligence Agency personnel violated the law by developing, authorizing and implementing the torture program early in the administration of President George W. Bush.
The Opinion of Committee on Codes of Conduct of the Judicial Conference of the United Statesestimates that Bybee’s legal expenses will be “in excess of $500,000 — a figure beyond [Bybee's] resources.”
According to the Bybee fund’s Declaration of Trust, its trustees are:
- James M. Spears, a lobbyist at Ropes & Gray, former general counsel at the Federal Trade Commission and former Deputy Assistant Attorney General from 1983 to 1988.
- Carolyn Colton, a vice president and assistant general counsel for Marriott International, Inc.
- Bruce Nielson, a partner at K&L Gates LLP.
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Attorney General Eric Holder told senators today that a long-awaited ethics report on the conduct of former Justice Department lawyers who authorized the use of harsh interrogation “should be ready at the end of the month.”
Holder, speaking at a Senate Judiciary Committee hearing, said a career prosecutor is looking over the Office of Professional Responsibility report for the last time.
“The report is complete and being reviewed now and is in its last stages,” Holder said in response to a question from Sen. Sheldon Whitehouse (D-R.I.).
In June, the Attorney General said the report, now more than four years in the making, would be ready in a “matter of weeks.” Today, Holder said the effort took longer than anticipated because the Justice Department afforded lawyers representing the subjects of the report time to respond to its conclusions.
The report looks at whether legal advice in the memos that authorize harsh interrogation techniques met professional standards required of Justice Department lawyers. The Office of Professional Responsibility’s findings are said to be harshly critical of Jay Bybee, the former head of the Office of Legal Counsel, and John Yoo, a former deputy.
It is still unclear when and to what extent the report will be made public.
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The Federal Bureau of Investigation didn’t open a criminal investigation into accused Fort Hood shooter Maj. Nidal Hasan’s communications with a prominent al Qaeda-linked cleric in Yemen because investigators concluded they were protected “free speech,” Newsweek’s Michael Isikoff reports.
Instead, investigators concluded the communications “were consistent with a research project the psychiatrist was then conducting at Walter Reed Army Medical Center in Washington on post-traumatic stress disorder,” the New York Times reported.
The new information comes from a background briefing that three unnamed senior government investigators held for reporters Monday evening, according to Isikoff.
As calls in Congress for an investigation grew Monday, the investigators offered an explanation for how Hasan was allowed to remain in his military post, despite evidence the Army psychiatrist was in contact with an American-born cleric who has provided inspiration for jihad against the West.
Yet the briefing also shows how the government, eight years after the intelligence failures that led to the 9/11 attacks, still wrestles with how to coordinate and assess information vital to national security.
For example, information about Hasan’s recent purchase of a semi-automatic handgun with a magazine allowing him to fire many rounds without reloading wasn’t given to the FBI, the investigators said, according to Isikoff.
Hasan is accused of going on a shooting spree last week at the military base in Fort Hood, Tex., killing 13 people.
On Monday, Rep. Pete Hoekstra (R-Mich), the ranking member of the House Intelligence Committee, wrote the FBI, CIA, NSA and Director of National Intelligence Dennis Blair to direct them to keep relevant documents for congressional review. And Senate Homeland Security Committee Chairman Joe Lieberman (I-Conn.) said his panel would investigate.
Communications believed to be emails between Hasan and the cleric, Anwar al-Awalki, were intercepted last year and this year. But “[t]here was no indication that Major Hasan was planning an imminent attack at all, or that he was directed to do anything,” a senior investigator told the Times.
The U.S. intercepted 10 to 20 emails from Hasan to Awalki. The cleric answered at least twice, The Washington Post reported. The correspondence was ”not a smoking gun, but communications that in hindsight raise some concern,” a terrorism expert with knowledge of the case told the Post.
Isikoff reported that the FBI wasn’t made aware that Hasan had purchased hand guns in August at a Killeen, Tex., gun shop named “Guns Galore.” Tight restrictions imposed by Congress on how information about weapons purchases can be shared with law enforcement authorities helped keep that crucial information from the FBI, the investigators said at the background briefing.
Still, it appears the FBI had already decided to close its inquiry into Hasan by the time of his gun purchase. And it’s clear that Hasan’s communications with Awalki didn’t elevate the matter sufficiently to remove him from military duty, despite abundant evidence in government files that the cleric promoted jihad.
Law enforcement authorities also suspected that Awalki was assisting al-Qaeda in plotting attacks from Yemen.
Transcripts and audiotapes about Awalki’s lectures about waging attacks on the West were found in the password protected computer files of suspects arrested in bombing plots in Europe and North America.
As former Washington Post reporter Susan Schmidt wrote Monday in an article for the International Assessment and Strategy Center:
The 9/11 Commission and congressional investigators reported that Aulaqi was visited in early 2000 by a close associate of Omar Abdel Rahman, the blind sheikh jailed for conspiracy [connected to] the 1993 World Trade Center bombing.
Soon after, however, in March 2000, the FBI shut down its counterterrorism investigation of Aulaqi, saying later it did not have sufficient evidence to bring a case. A month before it did so, hijackers Khalid al-Midhar and Nawaf al-Hazmi, fresh from an al Qaeda planning meeting in Malaysia, arrived in the United States and turned up at Aulaqi’s mosque in San Diego.
Awalki was a spiritual leader to 9/11 hijakers Khalid al-Midhar and Nawaf al-Hazmi, who slipped into the country after the CIA failed to alert the FBI, the congressional 9/11 commission report found. The cleric befriended them at a San Diego mosque in 2000, and he later counseled the future hijakers when he moved east to Falls Church, Va., where he was imam at the Dar al-Hijrah Islamic Center.
Hasan and his family also worshiped at Dar al-Hijrah.
Awalki moved to Yemen after the 9/11 attacks. He was arrested in 2006 and released in 2007 under still unexplained circumstances. The cleric said in a taped interview posted on a British Web site after his release that he was interrogated by the FBI several times.
Awalki now runs his own English-language Web site. On Monday, he posted a blog item praising Hasan’s alleged shooting spree. ”How can there be any dispute about the virtue of what he has done? In fact the only way a Muslim could Islamically justify serving as a soldier in the US army is if his intention is to follow the footsteps of men like Nidal,” Awalki wrote.