On April 16, the Obama administration released four memos that were used to authorize torture in interrogations during the Bush administration. When President Obama released the memos, he said, "It is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution."
Yet 13 key people in the Bush administration cannot claim they relied on the memos from the DOJ's Office of Legal Counsel. Some of the 13 manipulated the federal bureaucracy and the legal process to "preauthorize" torture in the days after 9/11. Others helped implement torture, and still others helped write the memos that provided the Bush administration with a legal fig leaf after torture had already begun.
The Torture 13 exploited the federal bureaucracy to establish a torture regime in two ways. First, they based the enhanced interrogation techniques on techniques used in the U.S. military's Survival, Evasion, Resistance and Escape (SERE) program. The program -- which subjects volunteers from the armed services to simulated hostile capture situations -- trains servicemen and -women to withstand coercion well enough to avoid making false confessions if captured. Two retired SERE psychologists contracted with the government to "reverse-engineer" these techniques to use in detainee interrogations.
The Torture 13 also abused the legal review process in the Department of Justice in order to provide permission for torture. The DOJ's Office of Legal Counsel (OLC) played a crucial role. OLC provides interpretations on how laws apply to the executive branch. On issues where the law is unclear, like national security, OLC opinions can set the boundary for "legal" activity for executive branch employees. As Jack Goldsmith, OLC head from 2003 to 2004, explains it, "One consequence of [OLC's] power to interpret the law is the power to bestow on government officials what is effectively an advance pardon for actions taken at the edges of vague criminal statutes." OLC has the power, Goldsmith continues, to dispense "get-out-of-jail-free cards." The Torture 13 exploited this power by collaborating on a series of OLC opinions that repeatedly gave U.S. officials such a "get-out-of-jail-free card" for torturing.
Between 9/11 and the end of 2002, the Torture 13 decided to torture, then reverse-engineered the techniques, and then crafted the legal cover. Here's who they are and what they did:
1. Dick Cheney, vice president (2001-2009)
On the morning of 9/11, after the evacuation of the White House, Dick Cheney summoned his legal counsel, David Addington, to return to work. The two had worked together for years. In the 1980s, when Cheney was a congressman from Wyoming and Addington a staff attorney to another congressman, Cheney and Addington argued that in Iran-Contra, the president could ignore congressional guidance on foreign policy matters. Between 1989 and 1992, when Dick Cheney was the elder George Bush's secretary of defense, Addington served as his counsel. He and Cheney saved the only known copies of abusive interrogation technique manuals taught at the School of the Americas. Now, on the morning of 9/11, they worked together to plot an expansive grab of executive power that they claimed was the correct response to the terrorist threat. Within two weeks, they had gotten a memo asserting almost unlimited power for the president as "the sole organ of the Nation in its foreign relations," to respond to the terrorist attacks. As part of that expansive view of executive power, Cheney and Addington would argue that domestic and international laws prohibiting torture and abuse could not prevent the president from authorizing harsh treatment of detainees in the war against terror.
But Cheney and Addington also fought bureaucratically to construct this torture program. Cheney led the way by controlling who got access to President Bush -- and making sure his own views preempted others'. Each time the torture program got into trouble as it spread around the globe, Cheney intervened to ward off legal threats and limits, by badgering the CIA's inspector general when he reported many problems with the interrogation program, and by lobbying Congress to legally protect those who had tortured.
Most shockingly, Cheney is reported to have ordered torture himself, even after interrogators believed detainees were cooperative. Since the 2002 OLC memo known as "Bybee Two" that authorizes torture premises its authorization for torture on the assertion that "the interrogation team is certain that" the detainee "has additional information he refuses to divulge," Cheney appears to have ordered torture that was illegal even under the spurious guidelines of the memo.
2. David Addington, counsel to the vice president (2001-2005), chief of staff to the vice president (2005-2009)
David Addington championed the fight to argue that the president -- in his role as commander in chief -- could not be bound by any law, including those prohibiting torture. He did so in two ways. He advised the lawyers drawing up the legal opinions that justified torture. In particular, he ran a "War Council" with Jim Haynes, John Yoo, John Rizzo and Alberto Gonzales (see all four below) and other trusted lawyers, which crafted and executed many of the legal approaches to the war on terror together.
In addition, Addington and Cheney wielded bureaucratic carrots and sticks -- notably by giving or withholding promotions for lawyers who supported these illegal policies. When Jack Goldsmith withdrew a number of OLC memos because of the legal problems in them, Addington was the sole administration lawyer who defended them. Addington's close bureaucratic control over the legal analysis process shows he was unwilling to let the lawyers give the administration a "good faith" assessment of the laws prohibiting torture.
3. Alberto Gonzales, White House counsel (2001-2005), and attorney general (2005-2008)
As White House counsel, Alberto Gonzales was nominally in charge of representing the president's views on legal issues, including national security issues. In that role, Gonzales wrote and reviewed a number of the legal opinions that attempted to immunize torture. Most important, in a Jan. 25, 2002, opinion reportedly written with David Addington, Gonzales paved the way for exempting al-Qaida detainees from the Geneva Conventions. His memo claimed the "new kind of war" represented by the war against al-Qaida "renders obsolete Geneva's strict limitations on questioning of enemy prisoners." In a signal that Gonzales and Addington adopted that position to immunize torture, Gonzales argued that one advantage of not applying the Geneva Convention to al-Qaida would "substantially reduce the threat of domestic criminal prosecution under the War Crimes Act." The memo even specifically foresaw the possibility of independent counsels' prosecuting acts against detainees.
4. James Mitchell, consultant
Even while Addington, Gonzales and the lawyers were beginning to build the legal framework for torture, a couple of military psychologists were laying out the techniques the military would use. James Mitchell, a retired military psychologist, had been a leading expert in the military's SERE program. In December 2001, with his partner, Bruce Jessen, Mitchell reverse-engineered SERE techniques to be used to interrogate detainees. Then, in the spring of 2002, before OLC gave official legal approval to torture, Mitchell oversaw Abu Zubaydah's interrogation. An FBI agent on the scene describes Mitchell overseeing the use of "borderline torture." And after OLC approved waterboarding, Mitchell oversaw its use in ways that exceeded the guidelines in the OLC memo. Under Mitchell's guidance, interrogators used the waterboard with "far greater frequency than initially indicated" -- a total of 183 times in a month for Khalid Sheikh Mohammed and 83 times in a month for Abu Zubaydah.
5. George Tenet, director of Central Intelligence (1997-2004)
As director of the CIA during the early years of the war against al-Qaida, Tenet had ultimate management responsibility for the CIA's program of capturing, detaining and interrogating suspected al-Qaida members and briefed top Cabinet members on those techniques. Published reports say Tenet approved every detail of the interrogation plans: "Any change in the plan -- even if an extra day of a certain treatment was added -- was signed off on by the Director." It was under Tenet's leadership that Mitchell and Jessen's SERE techniques were applied to the administration's first allegedly high-value al-Qaida prisoner, Abu Zubaydah. After approval of the harsh techniques, CIA headquarters ordered Abu Zubaydah to be waterboarded even though onsite interrogators believed Zubaydah was "compliant." Since the Bybee Two memo authorizing torture required that interrogators believe the detainee had further information that could only be gained by using torture, this additional use of the waterboard was clearly illegal according to the memo.
6. Condoleezza Rice, national security advisor (2001-2005), secretary of state (2005-2008)
As national security advisor to President Bush, Rice coordinated much of the administration's internal debate over interrogation policies. She approved (she now says she "conveyed the authorization") for the first known officially sanctioned use of torture -- the CIA's interrogation of Abu Zubaydah -- on July 17, 2002. This approval was given after the torture of Zubaydah had begun, and before receiving a legal OK from the OLC. The approval from the OLC was given orally in late July and in written form on Aug. 1, 2002. Rice's approval or "convey[ance] of authorization" led directly to the intensified torture of Zubaydah.
7. John Yoo, deputy assistant attorney general, Office of Legal Counsel (2001-2003)
As deputy assistant attorney general of OLC focusing on national security for the first year and a half after 9/11, Yoo drafted many of the memos that would establish the torture regime, starting with the opinion claiming virtually unlimited power for the president in times of war. In the early months of 2002, he started working with Addington and others to draft two key memos authorizing torture: Bybee One (providing legal cover for torture) and Bybee Two (describing the techniques that could be used), both dated Aug. 1, 2002. He also helped draft a similar memo approving harsh techniques for the military completed on March 14, 2003, and even a memo eviscerating Fourth Amendment protections in the United States. The Bybee One and DOD memos argue that "necessity" or "self-defense" might be used as defenses against prosecution, even though the United Nations Convention Against Torture explicitly states that "no exceptional circumstances whatsoever, whether a state of war or a threat or war … may be invoked as a justification of torture." Bybee Two, listing the techniques the CIA could use in interrogation, was premised on hotly debated assumptions. For example, the memo presumed that Abu Zubaydah was uncooperative, and had actionable intelligence that could only be gotten through harsh techniques. Yet Zubaydah had already cooperated with the FBI. The memo claimed Zubaydah was mentally and physically fit to be waterboarded, even though Zubaydah had had head and recent gunshot injuries. As Jack Goldsmith described Yoo's opinions, they "could be interpreted as if they were designed to confer immunity for bad acts." In all of his torture memos, Yoo ignored key precedents relating both specifically to waterboarding and to separation of powers.
8. Jay Bybee, assistant attorney general, Office of Legal Counsel (2001-2003)
As head of the OLC when the first torture memos were approved, Bybee signed the memos named after him that John Yoo drafted. At the time, the White House knew that Bybee wanted an appointment as a Circuit Court judge; after signing his name to memos supporting torture, he received such an appointment. Of particular concern is the timing of Bybee's approval of the torture techniques. He first approved some techniques on July 24, 2002. The next day, Jim Haynes, the Defense Department's general counsel, ordered the SERE unit of DOD to collect information including details on waterboarding. While the record is contradictory on whether Haynes or CIA General Counsel John Rizzo gave that information to OLC, on the day they did so, OLC approved waterboarding. One of the documents in that packet identified these actions as torture, and stated that torture often produced unreliable results.
9. William "Jim" Haynes, Defense Department general counsel (2001-2008)
As general counsel of the Defense Department, Jim Haynes oversaw the legal analysis of interrogation techniques to be used with military detainees. Very early on, he worked as a broker between SERE professionals and the CIA. His office first asked for information on "exploiting" detainees in December 2001, which is when James Mitchell is first known to have worked on interrogation plans. And later, in July 2002, when CIA was already using torture with Abu Zubaydah but needed scientific cover before OLC would approve waterboarding, Haynes ordered the SERE team to produce such information immediately.
Later Haynes played a key role in making sure some of the techniques were adopted, with little review, by the military. He was thus crucial to the migration of torture to Guantánamo and then Iraq. In September 2002, Haynes participated in a key visit to Guantánamo (along with Addington and other lawyers) that coincided with requests from DOD interrogators there for some of the same techniques used by the CIA.
Haynes ignored repeated warnings from within the armed services about the techniques, including statements that the techniques "may violate torture statute" and "cross the line of 'humane' treatment." In October 2002, when the legal counsel for the military's Joint Chiefs of Staff attempted to conduct a thorough legal review of the techniques, Haynes ordered her to stop, because "people were going to see" the objections that some in the military had raised. On Nov. 27, 2002, Haynes recommended that Secretary of Defense Donald Rumsfeld authorize many of the requested techniques, including stress positions, hooding, the removal of clothing, and the use of dogs -- the same techniques that showed up later in the abuse at Abu Ghraib.
10. Donald Rumsfeld, secretary of defense (2001-2006)
As secretary of defense, Rumsfeld signed off on interrogation methods used in the military, notably for Abu Ghraib, Bagram Air Force Base and Guantánamo Bay. With this approval, the use of torture would move from the CIA to the military. A recent bipartisan Senate report concluded that "Secretary of Defense Donald Rumsfeld's authorization of interrogation techniques at Guantánamo Bay was a direct cause of detainee abuse there." Rumsfeld personally approved techniques including the use of phobias (dogs), forced nudity and stress positions on Dec. 2, 2002, signing a one-page memo prepared for him by Haynes. These techniques were among those deemed torture in the Charles Graner case and the case of "20th hijacker" Mohammed al-Qahtani. Rumsfeld also personally authorized an interrogation plan for Moahmedou Ould Slahi on Aug. 13, 2003; the plan used many of the same techniques as had been used with al-Qahtani, including sensory deprivation and "sleep adjustment." And through it all, Rumsfeld maintained a disdainful view on these techniques, at one point quipping on a memo approving harsh techniques, "I stand for eight to 10 hours a day. Why is standing limited to four hours?"
11. John Rizzo, CIA deputy general counsel (2002-2004), acting general counsel of the Central Intelligence Agency (2001-2002, 2004-present)
As deputy general counsel and then acting general counsel for the CIA, John Rizzo's name appears on all of the known OLC opinions on torture for the CIA. For the Bybee Two memo, Rizzo provided a number of factually contested pieces of information to OLC -- notably, that Abu Zubaydah was uncooperative and physically and mentally fit enough to withstand waterboarding and other enhanced techniques. In addition, Rizzo provided a description of waterboarding using one standard, while the OLC opinion described a more moderate standard. Significantly, the description of waterboarding submitted to OLC came from the Defense Department, even though NSC had excluded DOD from discussions on the memo. Along with the description of waterboarding and other techniques, Rizzo also provided a document that called enhanced methods "torture" and deemed them unreliable -- yet even with this warning, Rizzo still advocated for the CIA to get permission to use those techniques.
12. Steven Bradbury, principal deputy assistant attorney general, OLC (2004), acting assistant attorney general, OLC (2005-2009)
In 2004, the CIA's inspector general wrote a report concluding that the CIA's interrogation program might violate the Convention Against Torture. It fell to Acting Assistant Attorney General Steven Bradbury to write three memos in May 2005 that would dismiss the concerns the IG Report raised -- in effect, to affirm the OLC's 2002 memos legitimizing torture. Bradbury's memos noted the ways in which prior torture had exceeded the Bybee Two memo: the 183 uses of the waterboard for Khalid Sheikh Mohammed in one month, the gallon and a half used in waterboarding, the 20 to 30 times a detainee is thrown agains the wall, the 11 days a detainee had been made to stay awake, the extra sessions of waterboarding ordered from CIA headquarters even after local interrogators deemed Abu Zubaydah to be fully compliant. Yet Bradbury does not consider it torture. He notes the CIA's doctors' cautions about the combination of using the waterboard with a physically fatigued detainee, yet in a separate memo approves the use of sleep deprivation and waterboading in tandem. He repeatedly concedes that the CIA's interrogation techniques as actually implemented exceeded the SERE techniques, yet repeatedly points to the connection to SERE to argue the methods must be legal. And as with the Bybee One memo, Bradbury resorts to precisely the kind of appeal to exceptional circumstances -- "used only as necessary to protect against grave threats" -- to distinguish U.S. interrogation techniques from the torture it so closely resembles around the world.
13. George W. Bush, president (2001-2009)
While President Bush maintained some distance from the torture for years -- Cheney describes him "basically" authorizing it -- he served as the chief propagandist about its efficacy and necessity. Most notably, on Sept. 6, 2006, when Bush first confessed to the program, Bush repeated the claims made to support the Bybee Two memo: that Abu Zubaydah wouldn't talk except by using torture. And in 2006, after the CIA's own inspector general had raised problems with the program, after Steven Bradbury had admitted all the ways that the torture program exceeded guidelines, Bush still claimed it was legal.
"[They] were designed to be safe, to comply with our laws, our Constitution and our treaty obligations. The Department of Justice reviewed the authorized methods extensively, and determined them to be lawful."
With this statement, the deceptions and bureaucratic games all came full circle. After all, it was Bush who, on Feb. 7, 2002, had declared the Geneva Conventions wouldn't apply (a view the Supreme Court ultimately rejected).
Bush's inaction in torture is as important as his actions. Bush failed to fulfill legal obligations to notify Congress of the torture program. A Senate Intelligence timeline on the torture program makes clear that Congress was not briefed on the techniques used in the torture program until after Abu Zubaydah had already been waterboarded. And in a 2003 letter, then House Intelligence ranking member Jane Harman shows that she had not yet seen evidence that Bush had signed off on this policy. This suggests President Bush did not provide the legally required notice to Congress, violating National Security Decisions Directive-286. What Bush did not say is as legally important as what he did say.
Yet, ultimately, Bush and whatever approval he gave the program is at the center of the administration's embrace of torture. Condoleezza Rice recently said, "By definition, if it was authorized by the president, it did not violate our obligations in the Convention Against Torture." While Rice has tried to reframe her statement, it uses the same logic used by John Yoo and David Addington to justify the program, the shocking claim that international and domestic laws cannot bind the president in times of war. Bush's close allies still insist if he authorized it, it couldn't be torture.
Former Sen. Norm Coleman must be getting sick of lawyers by now. According to the St. Paul Pioneer Press, the litigious Minnesota Republican, still waging his scorched earth campaign against incipient-Senator Al Franken, is also the subject of a widening FBI investigation.
Allegations first surfaced in October that Coleman had allowed a financier named Nasser Kazeminy to buy suits for him (prompting this widely noted, painful-to-watch press conference). In December, a source told the Pioneer Press that the FBI was looking into allegations that Kazeminy had tried to funnel $100,000 to Coleman and his wife indirectly. And Thursday, the Pioneer Press reported that another anonymous source claims to have been questioned by the FBI about Coleman’s suit-buying habits.
When asked by the Pioneer Press whether Coleman had been contacted by the FBI, his lawyer replied, “The senator called for an investigation by the appropriate authorities and has promised to cooperate fully with them. To that end, any further comment is not necessary.” Earl Gray, the lawyer for Coleman's wife Laurie, added, “I think your information is baseless, and I haven't heard anything. I don't think your information is accurate at all.”
The former senator was last seen wearing a thick beard and surprisingly well-tailored combat fatigues, holed up with heavily-armed loyalists, and some lawyers, in a fortified camp in the Iron Range.
WASHINGTON -- The testimony of a key witness at a Senate hearing Wednesday raised serious questions about the truthfulness of former President George W. Bush's own personal defense of the CIA's brutal interrogation program. Former FBI agent Ali Soufan also indicated that the harsh interrogation techniques may actually have hindered the collection of intelligence, causing a high-value prisoner to stop cooperating.
In the first congressional hearing on torture since the release of Bush administration memos that provided the legal justification for torture, Soufan told the Senate Judiciary Committee that the CIA's abusive techniques were "ineffective, slow and unreliable, and as a result harmful to our efforts to defeat al-Qaida." According to Soufan, his own nonviolent interrogation of an al-Qaida suspect was quickly yielding valuable, actionable intelligence -- until the CIA intervened.
Soufan was with the FBI on March 28, 2002, when the United States captured its first suspected al-Qaida operative after 9/11, a man named Abu Zubaydah, held at a secret location overseas. Soufan had investigated terrorism cases dating back to the East Africa embassy bombings in 1998, and he was one of the first experts called after Zubaydah's capture.
Soufan, who testified at the hearing from behind a partition to hide his identity, worked on a small team of interrogators utilizing tried-and-true techniques that emphasize knowing the detainee's language, understanding his culture, leveraging known information about a detainee, and sometimes using a bit of trickery. The method is based on rapport and is believed by experienced interrogators to result in the most reliable actionable intelligence. "It is about outwitting the detainee by using a combination of interpersonal, cognitive and emotional strategies to get the information needed," Soufan said in written testimony, which he paraphrased on Wednesday.
"For example," Soufan told the committee, "in my first interrogation of the terrorist Abu Zubaydah ... I asked him his name. He replied with his alias. I then asked him, 'How 'bout if I call you Hani?'"
"[Hani] was the name his mother nicknamed him as a child," recalled Soufan. "He looked at me in shock, said, OK,' and we started talking."
"Within the first hour of interrogation," Soufan said, "we gained actionable intelligence." Soufan could not say what that information was because it remains classified. Zubaydah had been injured during his capture, and Soufan's team arranged for medical care and continued talking to the prisoner. Within the next few days, Soufan made one of the most significant intelligence breakthroughs of the so-called war on terror. He learned from Zubaydah that Khalid Sheikh Mohammed was the mastermind behind the attacks on 9/11.
Then, however, a CIA interrogation team from Washington led by a contractor arrived at the secret location. Zubaydah was stripped naked and the contractor began a series of coercive, abusive interrogations, based on Cold War-era communist techniques designed to elicit false confessions. During the Korean War, for example, Chinese interrogators employed the measures to get captured American pilots to make false confessions. "The new techniques did not produce results, as Abu Zubaydah shut down and stopped talking," Soufan explained. "After a few days of getting no information, and after repeated inquiries from D.C. asking why all of a sudden no information was being transmitted ... we again were given control of the interrogation."
As Soufan and his team resumed their interrogation, Zubaydah revealed information about Jose Padilla, the alleged "dirty bomber."
But after that, the CIA and the contractor again took over, using what Soufan called an "untested theory" that the Cold War techniques might work for getting good information. "Again, however, the technique wasn't working," Soufan recalled.
Soufan's team was brought back yet again. "We found it harder to reengage him this time, because of how the techniques had affected him," Soufan noted. "But eventually, we succeeded."
A third time the CIA and the contractor team took over, using increasingly brutal methods. Soufan reported what he called "borderline torture" to his superiors in Washington. In protest of the abuse, former FBI Director Robert Mueller pulled Soufan out of the location.
On Sept. 6, 2006, President Bush revealed the network of secret CIA prisons set up under his command and defended the CIA's interrogation program. On Wednesday, Soufan described Zubaydah as a cooperative prisoner who became uncooperative when abused. Three years ago, Bush described a recalcitrant Zubaydah who accidentally revealed the name of Khalid Sheikh Mohammed and then clammed up -- having been trained to resist traditional interrogation techniques -- forcing the CIA to get rough.
"Within months of Sept. 11, 2001, we captured a man named Abu Zubaydah," Bush said. The president said the CIA arranged medical care for the suspected terrorist's injuries. "After he recovered," Bush said, "Zubaydah was defiant and evasive."
"During questioning, he, at first, disclosed what he thought was nominal information and then stopped all cooperation," Bush said, noting that Zubaydah had revealed the role of Khalid Sheikh Mohammed. Bush did not mention the FBI.
"We knew that Zubaydah had more information that could save innocent lives," the president added. "But he stopped talking. As his questioning proceeded, it became clear that he had received training on how to resist interrogation," Bush went on. "And so, the CIA used an alternative set of procedures."
Soufan's description of events also differs from official Justice Department memoranda defending the CIA program. A May 30, 2005, memorandum from the Justice Department's Office of Legal Counsel, drafted by attorney Steven Bradbury, defends the CIA's program as legal and also effective.
"Interrogations of Zubaydah -- again, once enhanced techniques were employed -- furnished detailed information regarding al-Qaida's organizational structure, key operatives, and modus operandi and identified KSM [Khalid Sheikh Mohammed] as the mastermind of the September 11 attacks," Bradbury wrote in a memo to the CIA. "You have informed us that Zubaydah also provided significant information on two operatives, including Jose Padilla, who planned to build and detonate a 'dirty bomb' in [the] Washington, DC area."
During testimony Wednesday, Sen. Sheldon Whitehouse, D-R.I., asked Soufan if Bradbury's memo was incorrect. "Yes, sir," answered Soufan. The former FBI agent also suggested that Bush had been told "half truths" about the CIA. George Little, a CIA spokesman, suggested to Salon in an e-mail that Soufan might be wrong. "Today we heard one account of the interrogation of Abu Zubaydah," Little said. "There are others."
GUANTANAMO BAY, Cuba -- Given all the information about abusive interrogations that has made its way out of Guantánamo, the "surprises" over the past week in Salim Hamdan's war-crimes trial -- the first military commission convened by the U.S. government since Nuremberg -- weren't exactly earth-shattering. But that didn't stop the defense, dubbed Team Hamdan, from doing what it could here to surprise the six-member jury of military officers (plus one sub) tasked with determining Hamdan's guilt or innocence.
The defense team of four lawyers asked the jury members if they knew that Hamdan, who worked as Osama bin Laden's driver and bodyguard, was prodded out of his Guantánamo prison bed in the middle of the night and interrogated by a U.S. agency that could not be named. They asked if the jury was surprised to learn that Hamdan's boss, Abdullah Tabarak, in charge of bin Laden's security detail, including bodyguards and drivers, had himself been detained at Guantánamo Bay but was released and sent home to Morocco in 2004. And they shared with the jury video footage of Hamdan taken soon after he was captured, showing him shackled, hooded and scared, as he was badgered by a U.S. military interrogator and in obvious pain from sitting too long trussed about the legs.
Yet, through it all, it seemed that Team Hamdan could barely solicit a raised eyebrow among the jury members. Maybe such revelations would have shocked a military jury in the past. But the trampling of rights at Guantánamo Bay has so permeated the national consciousness (if not its conscience) that such abuse seems almost commonplace -- a simple byproduct of the war on terror that must be endured.
As FBI agent George Crouch, a prosecution witness, said dryly -- after learning that apparent CIA interrogations of Hamdan had taken place at night without the knowledge of FBI agents who were questioning Hamdan during the day -- "Nothing surprises me these days."
The late delivery of documents
The first hiccup in the trial occurred when the prosecution failed to deliver information the defense had requested weeks ago from the government about Hamdan's "participation" in Operation Sandman, allegedly a program to maintain discipline at Guantánamo but that was suspected to include "enhanced interrogation techniques" such as sleep deprivation. Judge Keith Allred, a Navy captain, had ordered the prosecution to provide the documents to the defense, but they trickled in at a snail's pace, some being released to Team Hamdan only the night before the trial began.
It was perhaps not surprising then that Team Hamdan's leader, Charlie Swift, a former lieutenant commander in the Navy, opened with a sarcasm-soaked contemplation of what he would have done if he'd gotten those 600 pages sooner, by way of requesting more time to analyze the documents. Swift pointed out, for example, "I would have interviewed the guards on Tango Block to determine the exact level of [Hamdan's] sleep deprivation."
The prosecution protested Team Hamdan's request for additional time, but Judge Allred granted it and showed his annoyance with the prosecution by issuing a stern reprimand to the government prosecutors. "The government is in a poor position to get indignant about anything," Allred said. "Good grief, Charlie Brown, what have you been doing?"
Say what?
Allred's irritation at the prosecution was short-lived, however, and was soon turned on the defense, which objected repeatedly to the admission of statements that constituted hearsay.
The rule against hearsay -- which excludes as evidence statements not made by the person testifying -- is a cornerstone of American criminal justice. If the accused can't directly confront the person who uttered the words in order to probe for and confirm the truth of the statement, then those words can't be used as evidence. While there are many exceptions to the basic hearsay rule, hearsay evidence generally remains prohibited.
Not so with the Guantánamo military commissions. The Military Commissions Act, passed by Congress in 2006, expressly permits hearsay evidence, provided it is "reliable" and "probative" -- a standard that renders the hearsay rule meaningless. Allred told counsel outright at the beginning of Hamdan's trial that he will accept any recognized exception to the hearsay rule and any hearsay evidence offered under the "less rigorous standard Congress has provided."
The prosecution therefore felt free to ask one witness, "Did somebody at that time tell you something of significance about the accused?" Posed in such a way, this question is the very definition of impermissible hearsay.
But Team Hamdan became so tired of objecting, to no avail, that they didn't even bother to stand for that one.
The "capture videos"
Watching the two Hamdan "capture videos" was harrowing both for what they depict and for the fact that they were admitted into evidence at all. The videos document Hamdan's interrogations by U.S. military personnel in Afghanistan right after he was taken into custody. It's difficult to know what the prosecution intended to show with these tapes, except maybe that the U.S. military had confidence in the integrity of the post-capture interrogations.
In the grainy black and white film, the videos show Hamdan slumped on the floor, hooded and shackled, as he is badgered by his Arabic-speaking military interrogator in a dark room with one dim light bulb overhead. An armed soldier is behind Hamdan, the interrogator in front.
After removing the hood, the interrogator begins the questioning, only to be interrupted several times by Hamdan, who asks if he can change positions, move his legs and rub his foot. There is a sickening sense in watching that Hamdan -- visibly scared -- is searching for the right words to appease the interrogator, trying out ideas as they occur to him in an attempt to avoid more abuse.
The defense strenuously objected to the admission of these tapes as evidence. According to military commissions' rules, evidence obtained through torture can't be admitted. But the U.S. government has defined torture so narrowly that it seems almost anything can be admitted into evidence as a product of "mere" coercion.
Although Allred acknowledged in a ruling issued the day before trial that Hamdan was subjected to "various types of coercive treatment," he overruled the objection to the tapes, saying that the rules allow the admission of coerced testimony if it is deemed "reliable" and "the interests of justice." Those tapes, he concluded, served the interest of justice and were allowed in. Never mind the coercion.
Defenders of the military commission process will point to other statements that Allred has excluded from trial, because they were coerced, to argue that the process is fair. But with some evidence admitted that was clearly obtained through coercion, those claims ring hollow.
Although the videos were entered into the record, aired in court, and viewed by those in the gallery, the Department of Defense will not release them to the general public. According to one Pentagon source, the DoD is withholding them out of an "abundance of caution." Perhaps the DoD fears that the American public will know a coercive interrogation when it sees one?
Good cop, bad cop
On day four of the trial, the prosecution called on FBI special agent Dan William. He testified that on Aug. 19, 2002, he interviewed Hamdan at Camp Delta, one of the prisons at Guantánamo Bay. William said that Hamdan was "willing" to talk and the session was "cordial." He noted that he did not read Hamdan his rights, as it was "policy" at the time not to do so for any Guantánamo detainee.
On cross-examination the next day, Team Hamdan offered a secret document into evidence, and while court observers were not able to see the document, we were told it revealed that Hamdan had been rudely awakened at midnight on Aug. 19-20, 2002, and interrogated by "another agency" of the U.S. government -- typically a euphemism for the CIA.
Upon hearing this information, William shrugged. Although he had no idea that anyone else had questioned Hamdan at the same time as he did, he told the defense that he didn't think secret midnight interrogations undermined his own daytime "rapport building" efforts.
One of Hamdan's lawyers suggested that there might be some kind of "good guy, bad guy thing going on," with FBI agents "building rapport" during the day and "the other agency" doing things the rough way at night.
Those in the gallery will never know the answer to that. Under an order from the judge, the CIA's name can't be uttered aloud in Hamdan's trial and the secret document is, well, secret.
Dark night
There are other surreal aspects to what happens at Guantánamo Bay. As the first week of proceedings for Hamdan came to an end, trial observers went to see "The Dark Knight" at the military base's outdoor cinema.
The evening was all-American: families with lawn chairs and coolers with beer; public service announcements encouraging the crowd to honor American democracy by mailing in their absentee ballots; the playing of the national anthem; and then the movie.
Needless to say, it was weird to see "The Dark Knight" here. The movie is not a simple "good guys vs. bad guys" tale, but a rumination on the nature of good and evil, every person's capacity for corruption and redemption, and the triumph of basic humanity over self-interest. But the Guantánamo Bay detention facility is itself marred by the rendition, torture and ill-treatment of many of its occupants, and the deeply flawed trials that have commenced here. It is precisely these types of indecencies, committed by those with unrestrained power, that "The Dark Knight" disavows.
Allred was also in attendance at the movie, so I introduced myself to him as an observer for Human Rights Watch. The judge, who clearly takes his responsibilities seriously and is mindful of the historical moment at hand, seemed pleased.
"It's very important that you're here," he said to me.
Yes, that's true, I thought to myself -- better to be here than to let the trial go on without anybody from civil society witnessing it.
But I was not glad that either of us was there. A much better place to be would have been on the U.S. mainland, in a federal court, observing a trial that at its essence would be fair, impartial and just. What is unfolding at Guantánamo Bay is something very far from that.
The U.S. Justice Department is considering a change in the grounds on which the FBI can investigate citizens and legal residents of the United States. Till now, DOJ guidelines have required the FBI to have some evidence of wrongdoing before it opens an investigation. The impending new rules, which would be implemented later this summer, allow bureau agents to establish a terrorist profile or pattern of behavior and attributes and, on the basis of that profile, start investigating an individual or group. Agents would be permitted to ask "open-ended questions" concerning the activities of Muslim Americans and Arab-Americans. A person's travel and occupation, as well as race or ethnicity, could be grounds for opening a national security investigation.
The rumored changes have provoked protests from Muslim American and Arab-American groups. The Council on American Islamic Relations, among the more effective lobbies for Muslim Americans' civil liberties, immediately denounced the plan, as did James Zogby, the president of the Arab-American Institute. Said Zogby, "There are millions of Americans who, under the reported new parameters, could become subject to arbitrary and subjective ethnic and religious profiling." Zogby, who noted that the Bush administration's history with profiling is not reassuring, warned that all Americans would suffer from a weakening of civil liberties.
In fact, Zogby's statement only begins to touch on the many problems with these proposed rules. The new guidelines would lead to many bogus prosecutions, but they would also prove counterproductive in the effort to disrupt real terror plots. And then there's Attorney General Michael Mukasey's rationale for revising the rules in the first place. "It's necessary," he explained in a June news conference, "to put in place regulations that will allow the FBI to transform itself as it is transforming itself into an intelligence-gathering organization." When did Congress, or we as a nation, have a debate about whether we want to authorize the establishment of a domestic intelligence agency? Indeed, late last month Congress signaled its discomfort with the concept by denying the FBI's $11 million funding request for its data-mining center.
Establishing a profile that would aid in identifying suspects is not in and of itself illegal, though the practice generally makes civil libertarians nervous. When looking for drug couriers, Drug Enforcement Agency agents were permitted by the Supreme Court in United States v. Sokolow (1989) to use indicators such as the use of an alias, nervous or evasive behavior, cash payments for tickets, brief trips to major drug-trafficking cities, type of clothing, and the lack of checked luggage. This technique, however, specifically excluded the use of skin color or other racial features in building the profile.
In contrast, using race and ethnicity as the -- or even a -- primary factor in deciding whom to stop and search, despite being widespread among police forces, is illegal. Just this spring, the Maryland State Police settled out of court with the ACLU and an African-American man after having been sued for the practice of stopping black and Latino men and searching them for drugs. New Jersey police also got into trouble over stopping people on the grounds of race.
The New Jersey Supreme Court ruled last year in State v. Calvin Lee that a defendant's plausible allegation that the arrest was initiated primarily because of race would be grounds for discovery: The defense attorney could then request relevant documents from the prosecution that might show discriminatory attitudes and actions on the part of the police. Because racial profiling is most often felt by juries to be inappropriate, its use could backfire on the FBI. Suspects charged on the basis of an investigation primarily triggered by their race could end up being acquitted as victims of government discrimination.
If the aim is to identify al-Qaida operatives or close sympathizers in the United States, racial profiling is counterproductive. Such tiny, cultlike terror organizations are multinational. Richard Reid, the shoe bomber, is a Briton whose father hailed from Jamaica, and no racial profile of him would have predicted his al-Qaida ties. Adam Gadahn, an al-Qaida spokesman, is from a mixed Jewish and Christian heritage and hails from suburban Orange County, Calif. When I broached the topic of FBI profiling to some Muslim American friends on Facebook, a scientist in San Francisco replied, "Profiling Muslims or Arabs will just make al-Qaida look outside Islam for its bombers. There are many other disgruntled groups aside from those that worship Allah."
It is a mystery why the Department of Justice has not learned the lesson that terrorists are best tracked down through good police work brought to bear on specific illegal acts, rather than by vast fishing expeditions. After Sept. 11, the DOJ called thousands of Muslim men in the United States for what it termed voluntary interviews. Not a single terrorist was identified in this manner, though a handful of the interviewees ended up being deported for minor visa offenses. Once it became clear that the interviews might eventuate in arbitrary actions against them, the willingness of American Muslims to cooperate declined rapidly, and so the whole operation badly backfired.
The fiasco of the prosecution of the Detroit Four should also have been instructive. These four Arab men apparently had the misfortune to be in the wrong place at the wrong time, having moved into an apartment in southwest Detroit recently vacated by a man suspected of al-Qaida ties. The prosecution alleged that innocent vacation videotapes of places such as Disneyland found in the apartment were part of a terror plot, and that vague doodles in a notebook depicted targets abroad such as a Jordanian hospital and Incirlik Air Force Base in Turkey. The prosecution relied heavily on an Arab-American informer who might reduce his own prison sentence for various acts of criminal fraud if a conviction were obtained, and whose testimony against the four suspects evolved dramatically over time. The initial conviction of two of the men, Karim Koubriti and Abdel-Ilah Elmardoudi on charges of giving material support to terrorism, which was hailed as an achievement by the Bush administration, was overturned when the prosecution was discovered to have withheld key exculpatory evidence.
In a startling reversal, two members of the prosecuting team were tried for criminal misconduct, and although they were acquitted, their misconduct was not in question. A Detroit judge even apologized to a third man, who was held for three and a half years on a minor fraud charge and then deported. The entire affair raised questions about whether Muslim-Americans could hope for justice if for any reason they got accidentally caught up in the Justice Department's frantic search for Muslim terror cells on American soil (very few have been found). The flimsy case against the four men would have had no plausibility at all had they been white upper-middle-class residents of Connecticut.
Not only has the Justice Department engaged in prosecutorial misconduct with regard to Muslims, but at least one FBI operation also appears to have involved actual entrapment. Narseal Batiste, Patrick Abraham, Burson Augustine, Rothschild Augustine, Stanley Grant Phanor, Naudimar Herrera and Lyglenson Lemorin were arrested in June 2006, and accused of being an al-Qaida cell plotting to blow up the Sears Tower in Chicago. Batiste, aka Brother Naz or Prince Manna, led a small cult in a poor neighborhood of Miami called Seas of David, which was apparently an offshoot of the Moorish Temple Science, an African-American folk religion. The cult mixed themes from Judaism, Christianity and Islam but was not identifiably Muslim. The group met in a warehouse and talked big.
The FBI put an informant among them who repeatedly offered them money and equipment for their activities, some of which he appears to have suggested. Batiste maintained in the trial that he was just stringing along the informant in hopes of extracting a promised $50,000, and that he was insincere in pledging allegiance to al-Qaida. When the Justice Department announced the arrest in 2006, the indictment went on about the belief of the group in jihad, or Muslim holy war, but it is a little unlikely that these individuals knew anything about Islam at all. Both attempts to prosecute them ended in mistrials, primarily because the FBI could produce no evidence that when they were arrested they had any weapons or explosives in their possession. They were full of crazy talk, but even some of that was suggested to them by the Department of Justice.
Muslim Americans and Arab-Americans, along with members of some other ethnic groups, are therefore understandably alarmed that the Department of Justice may soon have the tools to bring them under investigation without any proof of wrongdoing. As CAIR national legislative director Corey Saylor noted in a statement, "Any new Justice Department guidelines must preserve the presumption of innocence that is the basis of our entire legal system ... Initiating criminal investigations based on racial or religious profiling is both unconstitutional and un-American." Muslim Americans and Arab-Americans have already suffered from being profiled in a de facto sense. Unsurprisingly, to have that injustice become policy concerns them. The protests would be even louder if so many in the community were not afraid to speak up and draw attention to themselves, as one of my Muslim American Facebook correspondents pointed out to me. Another remarked sadly that not only had George W. Bush not brought democracy to the Muslim Middle East, but he had also damaged its prospects in America itself.
On July 3, Chief Judge Vaughn Walker of the U.S. District Court in California made a ruling particularly worthy of the nation's attention. In Al-Haramain Islamic Foundation Inc. v. Bush, a key case in the epic battle over warrantless spying inside the United States, Judge Walker ruled, effectively, that President George W. Bush is a felon.
Judge Walker held that the president lacks the authority to disregard the Foreign Intelligence Surveillance Act, or FISA -- which means Bush's warrantless electronic surveillance program was illegal. Whether Bush will ultimately be held accountable for violating federal law with the program remains unclear. Bush administration lawyers have fought vigorously -- at times using brazen, logic-defying tactics -- to prevent that from happening. The court battle will continue to play out as Congress continues to battle over recasting FISA and possibly granting immunity to telecom companies involved in the illegal surveillance.
The story of how Al-Haramain's lawyers negotiated the journey thus far to Judge Walker's ruling -- a team of seven lawyers that includes me -- sheds light on how much is at stake for the Bush administration and the country. It is a surreal saga, involving a top-secret document accidentally released by the government, a showdown between Bush lawyers and a federal judge, the violent destruction of a laptop computer by government agents, and possibly even the top-secret shredding of a banana peel.
Call me Alice -- because this is a tale directly from Government Secrecy Wonderland, the bizarre and unnerving adventures of suing President Bush for apparently violating a federal law. I'll swear under penalty of perjury that what follows is true and correct. Otherwise, you might not even believe it.
The secret document
FISA requires a warrant for electronic surveillance inside the U.S. for intelligence gathering. President George W. Bush secretly violated FISA for nearly six years, starting shortly after the terrorist attacks of 9/11. FISA makes those violations felonious and provides for civil liability to the victims. I am one of seven lawyers in Oregon and California representing three of those victims in Al-Haramain Islamic Foundation Inc. v. Bush, a civil lawsuit against the president.
The plaintiffs are Al-Haramain -- a defunct Islamic charity based in Oregon -- and two lawyers who represented Al-Haramain in 2004 during proceedings by the Treasury Department's Office of Foreign Assets Control (OFAC) to declare Al-Haramain a terrorist organization, the primary consequence of which was to freeze its assets. (This effectively put the organization out of business.) Of the four dozen lawsuits challenging various aspects of Bush's warrantless electronic surveillance program, the Al-Haramain case is unique because we have proof that our clients were actually wiretapped and thus can satisfy the legal requirement of "standing," or grounds to sue -- meaning we can show they were victims of the unlawful conduct for which they are suing. Nobody else has been able to produce such proof.
Our proof is a top-secret classified document, which the government accidentally gave to Al-Haramain's lawyers in August of 2004. We call it "the Document." It appeared in a stack of unclassified materials that the lawyers had requested from OFAC. Six weeks later, after the government realized its blunder, FBI agents personally visited each of the lawyers and made them return their copies of the Document. But the agents made no effort to retrieve copies that the lawyers had given to two members of Al-Haramain's board of directors, who lived outside the United States.
I can't publicly reveal what's in the Document because, well, it's a secret. I would be committing a crime -- a violation of the Espionage Act of 1917 -- if I were to do so. But we assert the Document as proof of allegations we have made that in March and April of 2004 the National Security Agency conducted warrantless electronic surveillance of attorney-client communications between a representative of Al-Haramain and two of its attorneys, and that in May of 2004 the NSA gave logs of those surveilled communications to OFAC.
The FBI vs. the judge
Along with the complaint (the formal pleading that starts a lawsuit), which we filed in February of 2006 in the Oregon federal District Court, we submitted the Document. The government's first response was to try to seize the Document from the court. On March 17, 2006, as we were holding our first all-hands meeting of the Al-Haramain legal team in Portland, we received a telephone call from a Department of Justice attorney, advising us that FBI agents were en route to the federal District Court building to confiscate the Document. We immediately lodged a protest with the assigned judge, Garr King, who scheduled an emergency telephone conference with him and all counsel. The FBI agents retreated.
During the emergency hearing, DOJ attorney Anthony Coppolino demanded that the Document be turned over to the FBI for storage in a top-secret repository called a Sensitive Compartmented Information Facility, or SCIF. To my astonishment, Judge King responded: "What if I say I will not deliver it to the FBI, Mr. Coppolino?" A clash of constitutional powers was brewing. Agents of the executive branch were threatening to invade the files of the judicial branch. The judge was resisting, almost daring them to.
It was the executive branch that blinked. After a pause, Coppolino said: "Well, your Honor, we obviously don't want to have any kind of a confrontation with you; we want to work this out." We all agreed that the Document would be held in a nearby SCIF to which Judge King would have free access.
This was the beginning of a bizarre journey that has not yet ended. Since then, for nearly two and a half years, we have been attempting to use the Document to confirm our clients' standing to sue under FISA and thus test the legality of President Bush's warrantless surveillance program. More broadly, we want the courts to discredit the so-called unitary executive theory of presidential power, which holds that the president has exclusive authority over matters of national security and may disregard laws like FISA that impose checks on presidential power. First, however, we have had to get past a major obstacle used by the Bush administration to stand in our way.
The state secrets privilege
The state secrets privilege, which is rooted in a 1953 Supreme Court case, allows the government to refuse in civil lawsuits to disclose classified evidence that is a state or military secret. In extreme cases, where the very subject matter of the lawsuit is secret, the lawsuit may be thrown out entirely.
Soon after the Document's place of reposit was resolved, the government asked Judge King to throw out our lawsuit pursuant to the state secrets privilege, a tactic used aggressively by the Bush government. We opposed that request, arguing that the Document isn't a secret any longer, since we and our clients have seen it. The government attorneys insisted that the Document is still a secret no matter who knows about it, and further insisted that the warrantless surveillance program itself remains secret -- never mind that the New York Times revealed the program in December of 2005 and soon thereafter the president publicly admitted its existence.
By this time, in a burst of healthy paranoia, we had destroyed all our copies of the Document, and the government wouldn't give us access to the copy held in the SCIF. What would Judge King do? It's no small thing for a judge to take on the president in matters of national security. Judge King came up with a compromise: In a ruling issued on Sept. 7, 2006, he denied the government's request, but also denied us access to the copy in the SCIF. Instead, he said, we could proceed to demonstrate standing by filing secret affidavits describing the Document from memory.
Laptop lunacy
The government lawyers appealed Judge King's ruling to the 9th Circuit Court of Appeals. But they blundered: They failed to file an immediate request to suspend the lower court proceedings that Judge King had authorized -- our showing of standing with secret affidavits describing the Document from memory. For two months we quietly worked on our written showing. By the end of October, having completed most of the drafting, all we had left to do was prepare our secret affidavits describing the Document from memory, along with a short supplemental secret brief explaining how the affidavits established standing. On Oct. 27, 2006, I flew to Portland from my home in Oakland, laptop computer in hand, to finish the work with co-counsel. The Oregon attorneys prepared the secret affidavits; I wrote the supplemental secret brief on my laptop. Three days later, we filed our documents with the district court.
The government attorneys were enraged. We'd caught them off guard. They wrote to Judge King and requested an immediate hearing, arguing we had prepared our secret papers and taken them to the courthouse without complying with CIA directives that require certain top secret documents to be "carried only in approved containers by authorized couriers" and "transmitted electronically only through 'specially designated and accredited communications circuits secured by an NSA-approved cryptographic system and/or protected distribution systems.'"
In fact, we'd only done what Judge King had said we could do. In a responding letter to the judge, we also pointed out that CIA directives don't apply to us because we aren't CIA employees. Nevertheless, in another moment of fear, we destroyed our drafts and notes for the secret filings. We no longer had copies of the secret documents we had filed.
During a short hearing, Judge King absolved us of wrongdoing but ordered that, in the future, we would have to confer with the DOJ attorneys before preparing secret filings. At the end of the hearing, the government attorneys demanded that we relinquish any electronic versions of the secret documents we had filed. The judge ordered all counsel to confer on this, too, and "see what you can work out." These two orders set the stage for some of the most bizarre experiences of my 29-year legal career.
Judge King suspended further proceedings on the standing issue until the pending 9th Circuit appeal was decided. That took nearly a year, during which time all of the four dozen cases nationwide challenging various aspects of the warrantless surveillance program were consolidated and transferred to the federal District Court in San Francisco for decision by a single judge, Vaughn Walker.
Meanwhile, the government attorneys demanded that we give them our computers to enable DOJ technicians to "wipe" the computers clean of any electronic remnants of secret material that might remain somewhere in the computers' hard drives. Because of attorney-client confidentiality considerations, we refused, proposing instead to do the wiping ourselves in whatever manner the government technicians suggested. We weren't about to let the DOJ go rummaging through our files. Negotiations on the "wiping" logistics dragged on throughout the winter.
Briefing blind
Come spring, we turned our attention to the 9th Circuit appeal, where the appellate court would decide whether the state secrets privilege required our lawsuit to be thrown out entirely. In June of 2007, the DOJ attorneys filed two opening briefs in the 9th Circuit. One brief was publicly available, to which we would be allowed to file a publicly available responsive brief. The other was filed in secret, under seal, for the judge's eyes only. The bad news for us was that we would not be permitted to see the government's secret brief; the (sort of) good news was that we could file our own secret brief in response.
Rebutting arguments you've not been allowed to see is a talent that isn't taught in law school. I consulted Kafka's "The Trial," looking for helpful tips, but found none. I tried guessing at what might be in the government's secret brief and then hazarding a response in our own. Because of Judge King's prior order, we had to confer with the DOJ attorneys on the logistics of how to do this secret filing.
The government attorneys referred us to DOJ employee Erin Hogarty, a Washington-based member of the DOJ's Litigation Security Section. I contacted Hogarty and said I needed to confer with her and review the documents we had filed under seal with Judge King the prior year. We made arrangements to meet at the federal courthouse in San Francisco on June 15, 2007.
Hogarty and I convened in a windowless interior room adjacent to Judge Walker's chambers. She had brought our previous secret filings with her. She set me up in the room with the filings, took my cellphone from me, instructed me that I could take no notes either then or later, and then left me alone while she sat outside the closed door. After a while, I called Hogarty back into the room and we discussed the logistics for drafting the secret appellate court filing.
Hogarty instructed me that the drafting session would take place in the DOJ's San Francisco offices under her supervision. I told her that, in addition to myself, I wanted another member of our Oregon legal team to attend the session. Before I even told her who I wanted, she volunteered "not Tom Nelson." A key member of the team, Nelson had helped prepare the affidavits we had filed the previous October and had hand-carried them to the courthouse. Hogarty said that Nelson had been "uncooperative," which I took to refer to strong objections he had voiced to the DOJ rummaging through his computer files. Hogarty then named one of our other Oregon team members -- Steven Goldberg -- as the only other attorney who could participate in the drafting session.
We chose a date: June 26, 2007. She then laid out ground rules: I could not prepare any advance notes that contained any classified information. I could not discuss any classified information over the telephone with Goldberg prior to the drafting session. Goldberg and I could only discuss the drafting "face to face" -- which was a problem, since I was in Oakland and he was in Portland. We would be put in a room at the DOJ's San Francisco offices, where we would be loaned a government computer on which to work.
The telltale banana peel
On the morning of June 26, Goldberg and I met Hogarty in the lobby of the San Francisco federal building. She took us through a locked door and into the DOJ offices, on a floor that was strangely deserted. She ushered us into a small interior room lined with bookshelves that had been completely emptied, except for a few chairs, a large table, a dusty telephone, a laptop computer and a printer. She took our cellphones.
At that point, we brought up the subject of Tom Nelson. Goldberg told Hogarty that we wanted to be able to telephone Nelson on a secure line during the drafting session, or, alternatively, have him fly down from Portland immediately to join us personally. Hogarty politely refused. Goldberg asked on whose instructions she was acting, and she named one of the DOJ attorneys, Andrew Tannenbaum -- although, as she put it, Tannenbaum had received the instructions from "higher up."
We went forward without Nelson, drafting our secret appellate brief in a DOJ office, on a DOJ computer, under the watch of a DOJ security officer -- that is, under the auspices and control of our adversary in the legal case. We could print out drafts but couldn't take them from the room; instead, we were to leave the drafts on the table to be shredded by Hogarty later. When the brief was done, we were to print out five copies: one for each of the three judges on the panel that would decide the appeal, one for the DOJ attorneys and one to be put in a special safe under Hogarty's supervision. She would personally give the judges their copies, which nobody else -- not the court clerks, not the judges' staff attorneys -- would be permitted to see. We would not be allowed to keep a copy of what we had written; the brief in Hogarty's safe was "our" copy.
Hogarty explained that anything we wrote down that contained classified information, then or later, would instantly become "derivatively classified" and thus unlawful for us to possess. I wondered whether this meant that the portion of my brain that remembers the Document is also "derivatively classified," making its presence in my skull unlawful.
Goldberg and I spent about three hours writing our response to the secret government brief we had not been allowed to see. I produced an initial draft without using notes. Goldberg edited and added to my draft, then I reedited, and so on. We took the brief through several drafts, printing out hard copies to work from as we went along. As lunchtime approached, I got hungry, which Goldberg mentioned to Hogarty during a bathroom break. Hogarty kindly offered me a banana. When we returned to our drafting, I ate the banana and set the peel alongside our stack of hard-copy drafts.
Finally, we printed out five copies of our finished brief, which I laid on the table alongside the stack of drafts and the banana peel, and I called for Hogarty. I told her: "Here's everything, even the banana peel." Hogarty said she would shred the drafts and the banana peel. (She may have been joking about the banana peel, but I couldn't be sure.) She returned our cellphones to us and escorted us out of the building into the San Francisco sunlight.
We submitted our 9th Circuit briefs on July 3, 2007. In the publicly available brief, we argued that the state secrets privilege shouldn't apply to the Al-Haramain case for several reasons. Among them was the Document's accidental disclosure to the plaintiffs, which meant the surveillance of them was no longer a secret. We also argued that we only want to use the Document to confirm the previously disclosed fact of the surveillance, and not to reveal any of its operational details, so the lawsuit did not threaten national security.
I can't reveal, of course, what we argued in our secret brief. The government subsequently filed a secret reply brief -- which we weren't allowed to see.
The court scheduled a hearing on the appeal for Aug. 15, 2007. At the same time, the court would hear oral arguments in a lawsuit filed by the Electronic Frontier Foundation (EFF) against telecommunications carrier AT&T, challenging AT&T's wholesale disclosure of its customers' e-mail and telephone records to the government as part of the warrantless surveillance program.
The attack of the Samsonite Gorillas
On Aug. 8, 2007 -- more than nine months after I'd drafted the secret supplemental brief we'd filed with Judge King -- the DOJ people came to "wipe" my laptop clean of any electronic remnants of the brief. We'd finally agreed on the logistics: Erin Hogarty would bring a DOJ technician from Washington, D.C., and we'd meet in the windowless room adjacent to Judge Walker's chambers in San Francisco, where the technician would do the deed in my presence. It turned out to be more of a "whacking" than a "wiping."
Hogarty brought someone she introduced simply as "Miguel." By this time, alas, my laptop, which was old, was in its death throes. After Miguel tried logging onto the laptop and encountered fatal errors, he pronounced it dead. Hogarty asked me whether it would be OK if they physically destroyed the hard drive. I'd bought a new laptop and had managed to retrieve from the old one everything that I cared about, so I agreed.
They had brought no tools with them. Hogarty was about to canvass the building for a screwdriver, but I had a pending meeting elsewhere, so Miguel made do by fashioning a crude implement from the metal clip of his pen. He pried the back cover off the computer and removed the hard drive and memory board.
The situation grew darkly comic. They didn't have a hammer, so they started debating how to smash the hard drive. I suggested they smack it against the corner of the table that was in the room. That didn't do much. Hogarty then had an idea to put the thing on the floor and use a table leg on it. Miguel put down the hard drive, picked up the table and brought it down several times forcefully. The noise resounded, but the hard drive was impervious. One of the table legs became bent from the procedure.
Next, Miguel tried attacking the hard drive with his homemade tool. Soon he'd managed to pry off the hard drive cover and commenced scratching at the components. Meanwhile, Hogarty took the memory board and began banging on it on the floor with a chair leg. The memory board was weaker than the hard drive and cracked in several places. Then she held the memory board in her hands and tried bending it, but Miguel stopped her, warning that he'd seen someone get cut badly doing that -- evidently they'd done this sort of thing before.
I found myself thinking of the Samsonite Gorilla, the TV commercial from the 1970s in which a gorilla stomps on a piece of luggage that just won't break. I thought: "These people are entrusted with our national security?"
Eventually they managed to turn two shiny pieces of technology into about 20 jagged pieces of junk. Miguel started to throw the pieces into the wastebasket, but I asked if I could keep them -- a dark memento of sorts -- and he agreed.
As for my colleagues' computers, Hogarty and Miguel made a separate trip to Oregon, where they destroyed one of Portland attorney Zaha Hassan's Zip disks. They checked Goldberg's computer but apparently didn't find what they were looking for and left his hard drive intact. Nelson resisted all efforts to get at his electronic files, telling the DOJ attorneys that if they wanted access to his computer they would have to get a court order. They made no effort to do so.
Arguing gagged
A week later, I was arguing the case before a three-judge panel of the 9th Circuit Court of Appeals in San Francisco. Hogarty told me beforehand that if I said anything during the hearing that risked a public disclosure of classified information, she would stop the proceedings and clear the courtroom, suggesting I would likely suffer unspecified but unpleasant consequences.
In the middle of my argument, Judge Margaret McKeown asked me what information we needed from the Document to demonstrate our clients' standing to sue under FISA. I was at a loss. When Judge McKeown pressed me, I said: "I cannot tell you. I have a sealed filing in this case." When she pressed further, I said: "What's in the Document, I cannot mention it today." This was not my most eloquent moment as a lawyer.
Then, DOJ attorney Thomas Bondy stood at the lectern and delivered a mind-boggling rebuttal to our argument that the surveillance of our clients was no longer a secret.
"They don't know," Bondy said. "Let me make clear what I mean by that. When plaintiffs explain what they mean when they say they, in quotes, 'know,' they don't know. What they mean when they say that is that they -- although they think or believe or claim they were surveilled, it's possible they weren't surveilled ... When they say they know, what they mean by that, on their own terms, is that they don't know."
Bondy went on to argue "it is absolutely clear and undisputed that the world at large, the whole world, does not know whether or not any of the plaintiffs were surveilled." This incredible exchange ensued:
Judge McKeown: The world knows what they think they know, whatever that is that they know.
Bondy: Exactly. And that's less than actually knowing whether it's true.
Judge McKeown: Boy, we are really splitting the "knows."
At this point Judge Michael Hawkins interjected: "Sounds like Donald Rumsfeld."
Bondy: But your honor, let me be plain. If it's entirely possible, and I'm not saying one way or the other, obviously --
Judge McKeown: Right, because you don't yet know.
Bondy: It's entirely possible --
Judge McKeown: And we can't know.
Bondy: It's entirely possible that everything they think they know, just to give one example, is completely false. It's possible, or maybe it's partly true.
And so on. If I'd been permitted a reply, I would have quoted from Lewis Carroll -- not from "Alice's Adventures in Wonderland," but from his poem "Jabberwocky": "Beware the jubjub bird, and shun the frumious Bandersnatch!"
Endgame?
The 9th Circuit issued its ruling on Nov. 16, 2007, reversing Judge King's decision and sending the case back to Judge Walker for further proceedings. The appellate court ruled that if the state secrets privilege applies to the Al-Haramain lawsuit, it must be thrown out because the Document is indeed a state secret, regardless of its accidental disclosure to the plaintiffs, and because public disclosure of information concerning the Document would threaten national security. Judge King's compromise of allowing us to file affidavits describing the Document from memory was, the appellate court said, an improper "back door around the privilege." But the appellate court also ordered Judge Walker to decide whether FISA preempts the state secrets privilege in FISA litigation because of provisions in FISA for adjudicating claims under secure and confidential procedural conditions, which would allow our lawsuit to go forward.
Judge Walker's decision last week was a major victory for us. Walker concluded that FISA does indeed preempt the state secrets privilege. More broadly, he addressed the key issue raised by our lawsuit -- the validity of the "unitary executive" theory -- and said what we've been long awaiting: that the president does not have unbridled power to disregard federal statutory law in the name of national security. According to Judge Walker, "the authority to protect national security information is neither exclusive nor absolute in the executive branch. When Congress acts to contravene the president's authority, federal courts must give effect to what Congress has required."
But the ruling also sends us back down the rabbit hole once again. Judge Walker further held that, because of the peculiar way in which the applicable FISA provisions are written, we can't use the Document to confirm our clients' wiretapping until we first make some sort of preliminary showing -- using only non-classified information -- of "enough specifics" indicating that our clients were wiretapped. Only that could lead to a ruling giving us standing -- a burden Walker suggested might be "insurmountable." According to Walker, "if reports are to be believed," we will have "little difficulty" establishing standing once we are able to use the Document. But we can't use it yet. At this point, the Document alone just gives us what Walker called "actual but not useful notice" of our clients' unlawful surveillance. We need something more, from non-classified information, for that "actual" notice to become "useful."
In other words, we must show that our clients were surveilled before we can show that our clients were surveilled. The irony in this is not lost on Judge Walker, who commented that FISA is "not user-friendly."
Judge Walker gave us 30 days to restructure our complaint to make our preliminary case -- based on non-classified information -- for using the Document to confirm our clients' surveillance. We're grateful for the opportunity. We even think we can do it, using bits and pieces of non-classified information that has been revealed about the warrantless surveillance program and the terrorist designation of Al-Haramain in the 28 months since we commenced the lawsuit.
Meanwhile, Congress is on the verge of killing the pending lawsuits against the telecommunications carriers with a grant of retroactive immunity from liability. The 9th Circuit has not yet decided the AT&T case, evidently waiting to see whether Congress gives the carriers retroactive immunity. Other lawsuits against the government have been thrown out or are in danger of being thrown out for lack of standing -- since the plaintiffs in those cases have no proof that they were actual victims of the warrantless surveillance program. The Al-Haramain case is likely to become the last -- the only remaining hope for a determination of the legality of the president's extrajudical spying program and for Supreme Court review of the "unitary executive" theory.
It's hardly a secret that the Al-Haramain plaintiffs were spied upon -- it's been reported in Salon, the New York Times, the Washington Post, the Los Angeles Times and the New Yorker magazine, among others. The reality is that the Al-Haramain case doesn't threaten national security; it threatens only the "unitary executive" theory and the notion that presidents can disregard an act of Congress at their pleasure. Yet we have had to litigate the Al-Haramain case in the shadow of secrecy, where the government wants the case to die quietly -- without a court ruling on whether the president of the United States has broken the law.
We, the members of the Al-Haramain legal team -- Ashlee Albies, Steven Goldberg, Bill Hancock, Zaha Hassan, Lisa Jaskol, Tom Nelson and I -- cannot let that happen without fighting to the end.
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