Posts Tagged ‘Warrantless Wiretapping’
Wednesday, March 31st, 2010

In a long-running challenge to the Bush administration’s Terrorist Surveillance Program, a federal judge ruled on Wednesday that the U.S. government illegally wiretapped two American lawyers and the Islamic charity they represent.

U.S. District Judge Vaughn Walker in the San Francisco found that the plaintiffs - the Ashland, Ore., branch of the Saudi-based Al-Haramain Islamic Foundation and lawyers Wendell Belew and Asim Ghafoor — provided enough evidence to prove they were the subjects of warrantless electronic surveillance.

The Obama administration, like the Bush administration, refused to turn over evidence in the case, insisting that doing so would expose state secrets. But Walker ruled that public documents and statements by government officials showed a violation of the Foreign Intelligence Surveillance Act of 1978. The court has not yet decided the amount of damages to award the lawyers.

Justice Department spokeswoman Tracy Schmaler said the decision is being reviewed.

Click here for the Associated Press story and here for Politico’s. Read Judge Walker’s decision here.

Wednesday’s ruling stems from a 2006 lawsuit in which the plaintiffs claimed that their 2004 phone conversations were wiretapped without warrants after the Treasury Department declared the Oregon branch Al-Haramain Islamic Foundation a supporter of terrorism.

The lawsuit stood out from other challenges to the TSP because the government accidentally disclosed to the charity’s lawyers top-secret evidence — a document - of the alleged wiretaps. The lawyers returned the document and a federal appeals court barred them from using it, or any related testimony, in support of the lawsuit.

Jon Eisenberg, the lead plaintiffs lawyer, told the AP that 45-page ruling holds the Bush administration program was unconstitutional. But over at Politico, Josh Gerstein notes that the “import of the judge’s ruling could be tempered” by the lack of substantive evidence produced by the Justice Department.

Schmaler issued this statement about the DOJ’s position on state secrets, according to Politico:

The Attorney General has instituted key reforms to the Department’s state secrets policy to strike an appropriate balance between rebuilding the public’s trust in the government’s use of this privilege while recognizing the imperative need to protect national security. The Department’s new policy takes significant steps to reform the use of the privilege by ensuring that if it is invoked, it is narrowly tailored and done so following a review by a committee of senior Justice officials and approved by the attorney general.

This process is designed to provide greater accountability for the use of the privilege and to ensure that the Department invokes the privilege only to the extent that it is absolutely necessary to protect national security.

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Friday, November 20th, 2009

Former Deputy Attorney General Jim Comey and Jack Goldsmith, a former Assistant Attorney General for the Office of Legal Counsel, have this piece in today’s Washington Post, defending Attorney General Eric Holder’s decision to prosecute Khalid Sheik Mohammed and four other alleged Sept. 11 perpetrators in a Manhattan federal court.

Comey is general counsel of Lockheed Martin Corp. and Goldsmith teaches at Harvard Law School. Both served during the Bush administration, and both were internal critics of the legal work undergirding some of the most controversial national security policies emanating from then-Vice President Dick Cheney’s office, including the warrantless wiretapping and interrogation programs.

Here, they make the case that Holder’s decision is “reasonable,” noting the unsettled nature of the military commissions and the experience of federal judges and prosecutors in terrorism cases.

“The wisdom of that difficult judgment will be determined by future events,” they write. “But Holder’s critics do not help their case by understating the criminal justice system’s capacities, overstating the military system’s virtues and bumper-stickering a reasonable decision.”

They also directly assault the argument made by former Attorney General Michael Mukasey and others that prosecuting the alleged 9/11 plotters in New York will make the city a bigger target.

“If al-Qaeda could carry out another attack in New York, it would — a fact true a week ago and for a long time,” they write. “Its inability to do so is a testament to our military, intelligence and law enforcement responses since the Sept. 11, 2001, attacks.”

Goldsmith and Comey poke Holder a bit, pointing out that his stated reasoning behind consigning five men accused of attacking the USS Cole to a military commission rings hollow. (Holder explained that he did so, in part, because the Cole was a military target outside the U.S.)

“The Pentagon was a military target, many aspects of the Sept. 11 attacks were planned abroad, and the Cole attack is already the subject of a federal indictment in New York,” they note. “It is more likely that Holder decided to use a commission system still learning to walk because the Cole case is relatively weak and will benefit from the marginal advantages the commission system offers the government.”

Holder has already been attacked for forum shopping, but Comey and Goldsmith think that criticism is unfair.

“The Bush administration, criticized on similar grounds, properly explained that it would use whatever lawful tool worked best, all things considered, to incapacitate a particular terrorist. Holder’s decisions appear to reflect a similarly pragmatic approach.”

Saturday, October 10th, 2009

The 2nd Circuit Court of Appeals heard arguments in a Freedom of Information Act lawsuit Friday by an advocacy group seeking to force the government to reveal whether its clients were wiretapped during the Bush administration.

The Center for Constitutional Rights filed Wilner v. National Security Agency to determine if the attorney-client privilege between Guantanamo Bay inmates and their lawyers was compromised by warrantless wiretapping of their communications.

The Obama administration has no position on the legality of the Terrorist Surveillance Program, which ended three years ago, a government lawyer said, according to Reuters.

Kathryn Sabbeth, an assistant professor at the University of North Carolina at Chapel Hill School of Law, said in a statement:  ”No argument could be made that targeting American lawyers on American soil to obtain information about their clients was legal, and indeed when counsel for the government was pressed for an explanation he offered none.”

The CCR went to court after the government failed to release information requested in a 2005 FOIA request. A district court ruled the National Security Agency was within its rights not to reveal the requested information because doing so would “reveal information about the NSA’s capabilities and activities,” a CCR news release said.

Monday, September 28th, 2009

It’s been nearly eight years since federal agents raided a group of homes, Islamic organizations and businesses  in a massive terrorist-financing investigation centered in Herndon, Va., that appears now to have largely sputtered out.

But the spin-off litigation — including challenges to grand jury subpoenas and contempt findings - continues to churn in the federal courts. Last week, we went to Richmond to hear arguments in the U.S. Court of Appeals for the 4th Circuit, but we were shooed away. Hearing sealed. Grand jury stuff, we were told.

But the Sept. 23 hearing was a “re-argument,” according to the docket, which is otherwise crowded with sealed motions we can’t see. Fortunately, a recording of the previous hearing, held in March, is available. The arguments at that March hearing haven’t previously been reported.

It’s unclear why the court ordered a mulligan. But we did make this discovery: Defense lawyers are challenging the legality of the Bush administration’s warrantless wiretapping program in the 4th Circuit — a rare thing indeed.

No federal appellate court in the country has ruled on the constitutionality of the NSA program, which critics say violates the First and Fourth Amendments.

An Islamic think tank that came under scrutiny in the terrorism-financing probe, the International Institute for Islamic Thought, is pressing the issue on appeal.  At the March hearing, a lawyer for the institute, Steven Barentzen, wanted the 4th Circuit to pronounce the surveillance program illegal and withdraw the contempt finding.

Barentzen argued any information gleaned from the NSA program was “unlawfully obtained,” according to the recording. He asked the panel to order the government to say whether the organization had been targeted by the NSA surveillance program, as the organization contends it was. The government maintains it does not have to reveal its investigative methods. The think tank, known as IIIT, has denied any ties to terrorism.

It isn’t known why the think tank believes it was targeted by the warrantless surveillance program. Its offices, along with other homes and businesses, were raided in March 2002 by federal agents, in a terror-financing case that had its roots in Florida in the 1990s, before the Sept. 11, 2001 attacks and the NSA surveillance program.

The central figure in that Florida probe, former University of South Florida professor Sami Al-Arian, is fighting his own criminal contempt charges in the Eastern District of Virginia for refusing to testify before a grand jury about his knowledge of IIIT. Al-Arian pleaded guilty in the Middle District of Florida in 2006 to one count of assisting Palestinian Islamic Jihad, which conducted suicide-bombing attacks in Israel.

Barentzen told the 4th Circuit in March:

“Triple IT was held in contempt pursuant to 28 USC 1826a for failing to produce documents in response to a grand jury subpoena, despite having been ordered to do so. IIIT has contended from almost the beginning, after receiving the subpoena that it had just cause for refusing to reply to the subpoena pursuant to the Supreme Court’s decision in Gelbard versus the United States…”

‘[T]he subpoena was derived from information that the government had unlawfully obtained pursuant to electronic surveillance of IIIT under the NSA’s warrantless surveillance program, which was authorized by President Bush after the September 11 attacks…”

The lower court  ”found the government was not required to admit or deny whether any surveillance under the NSA program had occurred. And it’s our contention the district court erred in that respect.”

In tempting the 4th Circuit to consider the Bush-era program, Barentzen is fighting an uphill battle. Beginning in 2006, shortly after The New York Times disclosed the existence of the NSA program, federal district judges across the country began telling litigants — mostly defendants in criminal cases — they were not entitled to learn whether they came under scrutiny through the NSA program.  Still, litigation of any kind over the NSA program rarely rises to the appellate level.

The first time it did, in 2007, the U.S. Court of Appeals for the 6th Circuit ruled that the plaintiffs — a group of journalists and lawyers — lacked standing to sue, because they couldn’t prove the government had spied on them.

The 4th Circuit appears to want to follow the 6th Circuit’s lead. At the March hearing, the panel resisted Barentzen’s effort to make the NSA program the main topic. Two judges questioned whether the case was moot because the government had received the documents it was seeking from the institute.

“Why are we even discussing this argument then?” one judge asked, referring to Barentzen’s claim that the NSA program was illegal. The recording of the hearing does not identify the judges, but the docket shows the panel was comprised of Chief Judge William Traxler, Judge Diana Motz and Judge Dennis Shedd.

Barentzen said the institute had standing because it had been ordered to pay a contempt fine, a portion of which has so far gone unpaid.

The panel of judges avoided mention of the NSA program when questioning Assistant U.S. Attorney Gordon Kromberg, of Virginia’s Eastern District.

The constitutionality of the NSA program is also being litigated in another case across the country. In proceedings before a district judge in San Francisco, a defunct Islamic charity, Al-Haramain Islamic Foundation, said it received classified documents that proves it was wiretapped.  Because of the documentary proof that Al-Haramain claimed to have seen, standing is less of an issue in that case.

Freelance journalist Joseph Goldstein and Main Justice’s Mary Jacoby contributed to this report. Goldstein covered this case for the New York Sun. He purchased a recording of the March hearing from the court.

Monday, July 27th, 2009

John Yoo: soft-spoken but never shy. That’s the gist of this piece in the WaPo today.

John Yoo (Berkeley)

John Yoo (Berkeley)

The tenured Berkeley law professor and former Justice Department lawyer, who authored memos sanctioning the waterboarding of terrorism suspects and wiretapping of American citizens, hasn’t wilted in the face of protests, withering criticism of his judgment and a pending ethics investigation. And as we reported here, he parted ways with the Justice Department earlier this month, after a federal judge refused to toss out a former detainee’s lawsuit accusing Yoo of violating his constitutional rights.

Still, there’s no cramping Yoo’s style.

From the WaPo:

While former colleagues have avoided attention in the face of such scrutiny, Yoo has been traveling across the country to give speeches and counter critics who dispute his bold view of the president’s authority. Now a law professor at the University of California at Berkeley, he engages in polite but firm exchanges with legal scholars over conclusions in their academic work. This month, he wrote an opinion piece in the Wall Street Journal defending his actions and labeling critics’ arguments as “absurd” and “foolhardy” responses to “the media-stoked politics of recrimination.”

Yoo’s expansive view of executive power, memorialized in his scholarship and in the Office of Legal Counsel memos for which he is now infamous, took hold even before his stints as a law clerk to Supreme Court Justice Clarence Thomas and Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit, according to the newspaper.

The Bush administration, seeking to adopt a more centralized approach to power, embraced Yoo — so much so, the White House dealt with him directly on several issues, to the chagrin of his superiors. The back-door communications eventually cost him his shot at running the OLC, and he left for Berkeley.

Despite protesters who have picketed the Berkeley campus and petitioned school leaders for his ouster, he appears unfazed. And why not? What can anyone do to John Yoo? Attorney General Eric Holder Jr. has said he will not seek to prosecute the lawyers who authored the memos, and even if the Justice Department’s internal watchdog finds that Yoo fell short of professional standards, the five-year statute of limitations for allegations of attorney misconduct in Pennsylvania, where Yoo is licensed to practice law, has expired.

The criticism has strained his relationships with some former colleagues, according to the WaPo, but he and his wife, Elsa, the daughter of former CNN newsman Peter Arnett, still hang out with friends on the West Coast. And he writes a regular column for his hometown newspaper, the Philadelphia Inquirer, called “Closing Arguments.”

And he has supporters among his peers at Berkeley:

Jesse Choper, a Berkeley colleague of Yoo’s, said he thinks “very highly” of his scholarship, even if they disagree on some issues. “This is not a person who goes around raging or screaming at people — quite the opposite,” Choper said.

The WaPo points out that Yoo’s face-forward style contrasts his former Justice Department colleagues also under investigation by the Office of Professional Responsibility. Jay Bybee, who led the office while Yoo was there and is now a federal appeals judge in California, has told students and colleagues that he has some regrets about the memos. Steven Bradbury, the last to run the office during the Bush administration, has made himself scarce. He joined Dechert as a partner last week. Read about it here.

Friday, July 10th, 2009

Only three Justice Department lawyers, including then-Deputy Attorney General John Yoo, were privy to the details of the Bush administration’s warantless eavesdropping program, according to a report released today by inspectors general from various intelligence and law enforcement agencies. Click here for The Washington Post story.

John Yoo (Berkeley)

John Yoo (Berkeley)

The watchdogs — from the CIA, the Defense Department, the Justice Department, the Office of the Director for National Intelligence, and the National Security Agency — could not determine how Yoo “came to deal directly with the White House on legal issues related to the TSP.”

Only Yoo, then-Attorney General John Ashcroft and intelligence policy lawyer James Baker were aware of the program initially. The watchdogs called the arrangement ”extraordinary and inappropriate” and concluded that the secrecy hindered the Justice Department’s ability to render legal advice.

From the WaPo:

One former department lawyer, Jay S. Bybee, told investigators that he was Yoo’s superior in the Office of Legal Counsel but was never read into the program and “could shed no further light” on how Yoo became the point man on memos that confirmed its legality. By following this route, the memos avoided a rigorous peer review process.

Yoo prepared hypothetical documents in in the fall of 2001 before writing a formal legal memo in November. By then, Bush had already authorized the initiative.

In that memo, Yoo concluded that the FISA law could not “restrict the president’s ability to engage in warrantless searches that protect the national security” and that “unless Congress made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area — which it has not- then the statute must be construed to avoid such a reading,” according to the report.

Once higher-level DOJ officials read his analysis in late 2003 and 2004, they questioned the program’s legality. The report is scant on details of the program, but the watchdogs said Yoo failed to “accurately describe the scope” of the other activities — the ones not disclosed by The New York Times in 2005 — which created “a serious impediment to recertification of the program.”

After Yoo left the department, OLC lawyers Patrick Philbin and Jack Goldsmith were briefed on the program and began meeting with Alberto Gonzales, then White House Counsel, and Vice President Dick Cheney’s chief of staff, David Addington. The White House lawyers said they would terminate the program if became a serious problem, but they continued to lobby the Justice Department to support it while the legal problems were sorted out.


On March 9, 2004, intelligence officials and Cheney met to discuss the issue without inviting Justice Department leaders. Cheney suggested that the president “may have to reauthorize without [the] blessing of DOJ,” according to previously unreported notes taken by Mueller described in today’s report. Mueller told the investigators he would have a problem with that approach.

After the now-infamous hospital rush, in which Gonzales and Andy Card tried to prevail on an ailing Ashcroft to reauthorize the program, Deputy Attorney General James Comey threatened to resign, and with him FBI Director Robert Mueller III, among other Justice officials.

Monday, April 27th, 2009

CQ’s Jeff Stein continues to break news on the Rep. Jane Harman (D-Calif.) story.  Then-House Speaker Denny Hastert (R-Ill.) also learned from a “CIA-connected” whistleblower in 2006 that the California Democrat had been caught on a wiretap allegedly offering to help two pro-Israel lobbyists accused of spying against the U.S, Stein reports today.

From his story:

Incensed that Bush officials had ignored their obligation to alert him, Hastert demanded an explanation from then-Attorney General Alberto R. Gonzales …. but was rebuffed ….

The information was so sensitive, [Hastert chief of staff Scott] Palmer said, he and another aide composed and typed Hastert’s letter to Gonzales themselves, rather than dictating it to a secretary.

The two aides then summoned William Moschella, then the Justice Department’s chief of congressional liaison, to pick up the letter in person, “to signify how important we viewed the matter,” Palmer said

Stein previously reported that whistleblowers also contacted then-House Minority Leader Nancy Pelosi about the matter after Gonzales squashed a national security investigation in order to gain Harman’s support for the soon-to-break warrantless wiretapping story. Now he says Hastert informed Pelosi. Gonzales’s silence snubbed traditional protocol, which says top leaders in Congress are supposed to be informed when a lawmaker is under investigation by the government.

Monday, March 2nd, 2009

In the waning days of the Bush administration, Office of Legal Counsel chief Steven G. Bradbury wrote  a “memorandum for the files” disavowing the strained legal reasoning behind some of the Bush White House’s most controversial war-on-terror policies. Curiously missing from this roll call of infamous opinions: Bradbury’s own still-secret memos from 2005 giving the Central Intelligence Agency cover on torture and violations of the Geneva Conventions.

The Obama administration released Bradbury’s Jan. 15, 2009 “memorandum for the files” on Monday alongside other previously secret OLC memos that had been used to justify warrantless wiretapping, extraordinary rendition and (although it never was ordered) the use of the U.S. military to conduct raids on domestic targets.

Bradbury used words like “doubtful,” “incorrect,” and “not consistent with the current views of OLC” to describe the recently de-classified memos written mostly by the zealous John Yoo, now a law professor at Berkeley, in the aftermath of the 9/11 attacks.

“The opinions  addressed  herein were written in the wake of the atrocities of 9/11, when policy makers, fearing that additional catastrophic terrorist attacks were imminent, strived to employ all lawful means to protect the Nation,” the memo says. In a footnote, Bradbury adds he didn’t mean to ”suggest in any way that the attorneys involved in the preparation of the opinions in question did not satisfy all applicable standards of professional responsibility.”

 Bradbury writes that Yoo’s “sweeping assertions” that Congress had no say in the detention, interrogation and treatment of enemy combatants was “not sustainable.” The memo concedes: “Article I, Section 8 of the Congress grants significant war powers to Congress.”

Acting Assistant Attorney General Dan Levin withdrew Yoo’s infamous “torture memo” in 2004, as Bradbury notes in his memorandum for the files. Levin - one of the principled conservative  heroes who fought for the rule of law against Vice President Dick Cheney’s bullying counsel David Addington — had wanted to head up OLC. But the White House gave the job instead to the pliable Bradbury, as Jane Mayer describes in her book, The Dark Side. Bradbury then produced several legal memos in 2005 that gutted Sen. John McCain’s (R-Ariz.) anti-torture legislation.

Bradbury didn’t disavow his own still secret memos justifying torture. Weirdly, he instead quoted his written response during his 2005 confirmation process saying a federal ban on torture is constitutional. Bradbury succeeded Jack Goldsmith as head of OLC. Goldsmith, of course, was another principled conservative who tried to fight for the rule of law, only to get painfully rolled by Addington and his posse.