This post was written by GAP Homeland Security Director Jesselyn Radack for her Daily Kos Blog.
Although entirely predictable, I'm reeling from the Justice Department's Office of Professional Responsibility (OPR) decision--finally released late yesterday after 5 years--to give the authors of the infamous "torture memos" a pass.
This gives me the dubious distinction of being the only Justice Department attorney that OPR referred for bar disciplinary action stemming from advice I gave in a torture case--and my advice was to permit an American terrorism suspect to have counsel. If the Holder Justice Department had any inclination to rehabilitate OPR's lofty mission of
ensuring that Department of Justice attorneys perform their duties in accordance with the high professional standards expected of the Nation’s principal law enforcement agency,
they've blown it.
According to the Justice Department's website, OPR’s mission is to
investigat[e] allegations of misconduct involving Department attorneys that relate to the exercise of their authority to . . . provide legal advice.
But Americans, and especially lawyers, should be outraged at how the Justice Department and OPR have handled this totally unorthodox investigation of the authors of the infamous "torture memos," the icing on the cake of which was allowing the targets of the investigation to review and soften the report.
As the former Justice Department ethics advisor in the case of "American Taliban" John Walker Lindh, I blew the whistle when my advice to provide him counsel was disregarded and evidence of that advice "disappeared" in contravention of a federal court order. Contrary to OPR’s own policies, it hastily and vindictively forwarded my case to the state bars in which I’m licensed absent a finding of "professional misconduct," much less a finding of "intentional misconduct or reckless disregard of an applicable standard or obligation"--the benchmark that OPR uses. Instead, OPR referred me to the bar disciplinary authorities for "possible misconduct." Moreover, I was referred based on a secret report to which I did not have access. Finally, I was referred for conduct I engaged in as a private citizen, not as a public servant, after I had left the employ of the Justice Department.
Although the Maryland Bar dismissed the charges against me in 2005, my referral to the D.C. Bar (the same Bar to which Yoo and Bybee would have been referred) is still pending after almost seven years. (Politically-motivated treatment by the D.C. Bar, and allowing itself to be used as a tool of revenge by the Bush Justice Department, is a diary for a different day.)
If the Obama administration thinks that this outcome is going to tamp down the vituperative Republican assault on its counter-terrorism strategy, think again. You're just further alienating the people (well, at least this voter) who elected you to de-politicize justice.
Action:
1. File a bar complaint against Bybee and Yoo: D.C. office of Bar Counsel (202) 638-1501, X1751
2. Ask the Holder Justice Department to have the OPR withdraw its referral of me to the D.C. Bar: Call (202) 514-2000, ask to be connected the the Office of the Attorney General, and leave a comment.
MSM: If you want an informed comment, you can reach me at (202) 369-1749.
There is an enormous danger to Americans' privacy and a great propensity for error when government and private sector partnerships are initiated without aggressive oversight and meaningful regulation.
Alarm bells sound even louder when the NSA is involved, considering the NSA's infamous record of teaming up with the private sector to invade Americans' privacy in the name of national security. George W. Bush's so-called "terrorist surveillance program,"(a.k.a. warrantless wiretapping) authorized under dubious legal reasoning from our favorite former-DOJ official "torture lawyer" John Yoo, resulted in the NSA and telecommunications companies doing an end-run around the 4th Amendment to dig into Americans' private data without warrants.
Despite a promise from President Obama that his administration would be the most open in history, more than 300 individuals and groups have filed lawsuits in order to get public records in the past year. Many of the plaintiffs argue that the lack of transparency remains the same since the Bush administration, as 298 public-records lawsuits were filed in 2008, the last year of Bush’s tenure.
Embattled Treasury Secretary Timothy Geithner will face many tough questions today during his testimony in front of the House Committee on Oversight and Government Reform. The specific issue at hand is Geithner's role in the bailout of AIG as president of the New York Federal Reserve, and his possible role in its decision not to disclose information about AIG's "back-door" bailout of other firms. Geither has faced criticism from Democrats and Republicans.
A coalition of nonprofit groups, including GAP, sent a letter to President Obama asking for a revision in the year-old executive order than restricts lobbyists from jobs in the administration. The order does not cover many special interest insiders, while still restricting non-profit or charity lobbyists, who do not have a particular financial interest in policy.
In public safety news:
New technology for radiation, and the nature of overworked hospital workers, has created new avenues for human error in the therapies. And because of the nature of the therapies, mistakes can be repeated multiple times, causing serious damage to patients.
And finally in climate science news:
Following the Massachusetts special election win by Republican Scott Brown, advocates of a climate policy are creating a more modest proposal, believing their more comprehensive cap-and-trade based plan would not pass the Senate. Instead, they are turning to a plan involving more "job-creating energy projects and energy efficiency measures."
In recent months, two cases against big producers of heat-trapping gases, including ExxonMobil and Shell Oil, have gone ahead in federal courtafter previous decisions to dismiss them were reversed. The cases, and others, are part of a climate change litigation movement that could eventually bring large industries to the negotiating table.
This post was written by GAP Homeland Security Director Jesselyn Radack for her Daily Kos Blog.
On Thursday (Oct. 8), the Senate Judiciary Committee is slated to continue last week's markup on legislation reauthorizing three Patriot Act-related provisions set to expire at the end of this year: the "business records" provision (Section 215), which allows the government to obtain any tangible thing relevant to a national security investigation, the "lone wolf" provision, which gives the government unprecedented authority to investigate people with no evidence of a nexus to terrorism, and the "john doe" roving wiretap provision, which allows a wiretap without requiring the government to name the target or phone to be tapped. The Justice Department and the FBI have painted these powers as crucial tools in the fight against terrorism, even though the lone wolf provision has never been used. Now is the time to put some much needed privacy protections into the misused and often unconstitutional PATRIOT Act. The Senate Judiciary Committee needs to protect this country by protecting our constitutional right to privacy.
The real opportunity for this Thursday’s Senate Judiciary Committee markup is to fix the tremendous expansion of the government’s ability to obtain personal information (phone records, financial records, credit reports, etc.) using National Security Letters (NSLs) with no meaningful court oversight so long as the government claims the information is "relevant" to an authorized investigation. This ridiculously broad relevance standard has led to widespread abuse of the NSL power that was documented in two DOJ Inspector General Reports(available here and here). One offensive example documented in the DOJ IG's section 215 audit being when the FISA court denied access to information under section 215 on First Amendment grounds, the FBI went around the court and used an NSL to obtain the information. Further, the Second Circuit in Doe v. Holder held that the NSL non-disclosure provision, which gags the recipient of an NSL, violated the First Amendment. Thursday’s markup is the Senate Judiciary Committee’s chance to fix the NSL power, protect Americans’ privacy, and point the FBI in the right direction, away from innocent Americans and towards terrorism suspects.
As I blogged about a couple weeks ago, Senators Feingold and Durbin have wisely taken this opportunity to introduce a broad Patriot Act fix bill, the JUSTICE Act (S. 1686), and have garnered substantialsupport from key civil liberties and privacy groups. The Feingold-Durbin bill contains important fixes that would focus NSL power on persons the government suspects of criminal activity. Further, the Obama Administration, despite its disappointing support for reauthorizing all three expiring provisions, has signaled openness to discussing adding privacy protections.
Senators Leahy and Kaufman also introduced a fix bill (S. 1692). It was not as broad as the Feingold and Durbin bill, but still contained some good protections, and was on the Senate Judiciary Committee’s markup schedule last week. Unfortunately, Senators Leahy and Feinstein submitted a substitute at last week’s markup that eliminated key privacy protections in the original bill. In particular, the original Leahy-Kaufman bill required that the government demonstrate a nexus to an agent of a foreign power to obtain section 215 FISA court orders for "any tangible thing." For a mysteriously secret reason regarding an ongoing investigation (that Senator Durbin was vocally uncomfortable with), the Leahy-Feinstein substitute removed the more stringent section 215 standard for all information except library records. And, despite the fact that during the 2005/2006 reauthorization debate, the higher section 215 standard passed out of Senate Judiciary on an 18-0 vote, only FOUR Senators voted for an amendment to put the higher standard back into the bill. The only real glimmer of light from last week came when an Amendment to put a sunset on the controversial NSL provisions passed.
The Senate Judiciary Committee must do better this Thursday. Taking the Executive branch’s word that it needs information did not work for NSLs, and odds are, it will not work for section 215 or the other expiring provisions. Now is the time to put in judicial oversight protections. Reauthorizing these PATRIOT Act provisions without adding meaningful protection for Americans’ privacy will hinder U.S. counterterrorism policy by allowing the same kind of waste, fraud, and abuse we saw with NSLs. I know there are political realities for the Senate Judiciary Committee members, but they ought to get over their apparent fear of "looking soft on terrorism," and realize that the best weapon we have to fight terrorism is to uphold the Constitution.
This post was written by GAP Homeland Security Director Jesselyn Radack for her Daily Kos Blog.
A reporter shield law has gone further than any previous attempts. A proposal was overwhelmingly passed through the House of Representatives and the Senate Judiciary Committee during the 110th Congress and it has been reintroduced this session.
But President Obama just gave Congress and various media representatives a draft of a propsed reporter shield law that toughens, not softens, its position on controversial national security sections. If reporters can be forced to reveal their sources, here are a number of stories you would have never heard about: torture policy, Abu Ghraib, rendition, warrantless wiretapping, perverted Justice Department OLC memos . . . just to name a few. See generallyhttp://www.nytimes.com/....
During his campaign, President Obama pledged to support shield legislation. His proposed reporter "shield" law is supposedly meant to protect journalists from having to disclose their confidential sources. But let's be frank. Under the Administration's language, a reporter could be compelled to reveal his or her sources if public disclosure of the source's information
caused or [was] reasonably likely to cause significant and articulable harm to national security.
This is no standard at all. It's so broad that it would encompass all the major scandals of the past nine years: torture, secret surveillance, the rendition program.
Obama proposes to scrap a "balalncing test" (damage to national security vs. the public's right to know) in favor of a "reasonably likely to cause damage" test.
Guess what? The revelations at Abu Ghraib were reasonably likely to cause damage to the treatment of detainees--as they should have, because the U.S. should not torture. The revelations of the Justice Department Office of Legal Counsel (OLC) memos were reasonably likely to cause damage to the nation's top law enforcement agency--as they should have--because the Justice Department should not be the architects of torture and how to get away with it.
The revelations I made in the case of "American Taliban" John Walker Lindh were reasonably likely to, and did, derail the prosecution, which is as it should have been, because it was rife with government misconduct, from torture, to improper interrogation, to destroyed evidence.
Obama's proposal would also lower the standard for someone seeking a reporter's source in a civil case. All that would be needed are
reasonable grounds to believe that the information sought is essential to the resolution of the matter.
These are cases in which NO national security interests or criminal prosecutions are involved.
Reporters must be able to protect their sources unless the source committed a crime (as in the case of Bob Novak's sources, who violated the CIA Identities Protection Program law.) Otherwise, whistleblowers will continue to be the target of bogus "leak investigations," and the reporters who pledged to protect them will become witnesses against them.
This post was written by GAP Homeland Security Director Jesselyn Radack for her Daily Kos Blog.
I blogged about Attorney General Holder's memo introducing new state secrets privilege guidelines last week. I'm glad to see the New York Times has agreed. An editorial in today's New York Times expresses exactly the same sentiment I expressed last week: that while internal Executive Branch controls on state secrets are a welcome step, the Executive Branch cannot be trusted to police itself.
Keeping control of the state secrets privilege entirely within the Executive Branch, with no meaningful Congressional or court oversight, will allow the government to continue to abuse the privilege by claiming evidence contains state secrets in order to cover embarrassing or illegal behavior instead of to protect national security.
There's no better example of this kind of cover-up than the very first time the government asserted the state secrets privilege in U.S. v. Reynolds. In Reynolds, families of civilian victims of a military plane crash sued the government. The government refused to release the accident report, claiming it contained a "state secret" about military equipment. The Supreme Court upheld the government's claim of secrecy and formally established the state secrets privilege. In later years, the accident report was made public. Not only did the report lack any information on secret military equipment, but it contained irrefutable evidence of the government's negligence.
Our country's national security is too important to be used as an excuse to hide government incompetence, much less intentional wrongdoing
If the government wants hide evidence, the government ought to be required to show a court how revealing the evidence would cause significant harm to the national defense or diplomatic relations. Anything less would allow state secrets to be used as it has too often been used since its inception: to stop accountability for government misbehavior. Conspicuously missing from the Obama Administration's "state secrets reform" guidelines is court oversight or support for the legislation that would implement it, the State Secrets Protection Act (H.R. 984, S. 417).
The New York Times got it right today:
In any event, while more stringent self-policing of executive branch secrecy claims is welcome, it is hardly a total fix. Senator Russ Feingold, a Wisconsin Democrat, noted that without a clear, permanent mandate for independent court review of the administration’s judgment calls, Mr. Holder’s policy "still amounts to an approach of ‘just trust us.'
I reiterate my point from last week: if the past nine years has taught us anything, it's not to trust the Executive Branch to protect our civil liberties.
This post was written by GAP Homeland Security Director Jesselyn Radack for her Daily Kos Blog.
The Department of Justice is going to impose new limits on the government assertion of the "state secrets privilege" used to block lawsuits (particularly the ones involving warrantless wiretapping and torture) for national security reasons. The good news is that the new policy would require approval by the Attorney General if military or espionage agencies (read: the NSA or CIA) wanted to assert the privilege to withhold classified evidence sought in court, or to ask a judge to dismiss a lawsuit outright. The bad news is that there is still no court oversight.
This is the same kind of split-the-baby approach the Administration is taking with regard to the Patriot Act. Instead of taking the lead on protecting privacy and civil liberties, the Administration is taking a "don't tick anyone off" middle-ground approach. They're not fighting the battle; they're observing it.
The Department of Justice policing itself didn't work in the last Administration. Our national security is too important to let one branch of government handle it entirely. While I have more faith in Obama to protect the Constitution (and even Obama has given us reason for concern--like continuing to assert the privilege to get lawsuits that are valid on the merits dismissed), we might not be so lucky with the next president.
Holder says:
The department is adopting these policies and procedures to strengthen public confidence that the U.S. government will invoke the privilege in court only when genuine and significant harm to national defense or foreign relations is at stake
But from what we've seen so far, that is not being followed. In the case of Binyam Mohamed, and Ethiopian native, and four others, who filed suit against a subsidiary of Boeing for arranging their "extraordinary rendition" to a country where they were tortured, a lawyer for the Obama administration startled a panel of the Ninth Circuit federal appeals court judges by pressing ahead with an argument for preserving state secrets originally developed under Bush.
In the Al-Haramain case--the only viable suit against a telecom (AT&T) for warrantless wirtapping, the Obama Administration has asserted the state secrets privilege to have the suit shut down.
Candidate Obama ran on a platform that would reform the abuse of state secrets, and while they may claim this policy reforms it, real reform comes with some kind of change, and, with no court oversight, Obama is still saying, "Trust us. We're the governement." If the past nine years has taught us anything, it's not to trust the Executive Branch to protect our civil liberties. The measure of a leader is not his ability to hoard power, but to know when he should loosen his grip as part of the checks and balances upon which our government works.
