Section 215 of the Patriot Act, known as the “business records provision,” relaxed the previous standard the government had to meet to obtain personal information from banks, hospitals, libraries, retail stores and other institutions. Previously, the government had to show that it had evidence that the person whose records it sought was a terrorist or spy. With passage of the Patriot Act, that standard was lowered to permit the government to collect any records it considered “relevant to an investigation.”

Wyden, Feingold and Durbin have been arguing that the relevance standard is far too broad and violates the privacy rights of ordinary law-abiding Americans. But they also claim that the government is withholding key information from Congress that would allow lawmakers to make an informed judgment about the issue. Although it’s not clear exactly what information they’re talking about, since even a description of the information is classified, it would seem to be information about how the government has used the business records provision, and what evidence it has obtained by its use.

As Jennifer Hoelzer, Wyden’s communications director, said in an e-mail: “The fact that I can’t in anyway characterize the information in itself highlights the problem and why we believe it is so essential that the Justice Department declassify this information. Senators should know what they are voting on.”

Here’s part of what Wyden wrote in The Huffington Post on this issue a few weeks ago:

I have served on the Senate Intelligence Committee for eight years, and I have yet to see evidence — classified or otherwise — that has convinced me that revising the business records provision to include a less intrusive standard would be harmful to U.S. national security. Yet as Congress considers whether to reauthorize this standard — written in a rush to judgment eight years ago — some will undoubtedly argue that Congress should just trust that the provision is essential and blindly sign-off on reauthorization. I disagree. While “just trust us” has passed as informed national security debate in this country for eight years, it hasn’t resulted in good national security policy.

The senators’ latest letter to the attorney general on this issue is here.

Ramzi bin al Shibh is one of five men charged by the U.S. military commission with having participated in planning the Sept. 11 hijacking and suicide mission. His lawyers say he’s not competent to represent himself or to stand trial because he suffers from “delusional disorder” and hallucinations, and he is being treated with psychotropic drugs by Guantanamo Bay prison doctors.

To prepare his defense, his lawyers tried to get evidence from the government about which specific interrogation techniques were used on him, and how frequently. Waterboarding, stress positions, sleep deprivation and sexual humiliation are among the techniques to which the the alleged 9/11  conspirators were subjected, according to the so-called Office of Legal Counsel “torture memos” released earlier this year.

But the military judge hearing the case, Army Col. Stephen Henley, ruled on Aug. 6 that “evidence of specific techniques employed by various governmental agencies to interrogate the accused is … not essential to a fair resolution of the incompetence determination hearing in this case.” The government had argued that releasing the evidence would endanger national security.

The Miami Herald obtained a copy of the ruling on Monday.

As I’ve written before, lawyers representing the ex-Guantanamo detainee Binyam Mohamed have been complaining that the U.S. government is forbidding the release of evidence that the Ethiopian-born U.K. resident was tortured in U.S. custody.In February, Clive Stafford Smith, director of the nonprofit organization Reprieve, which represents many Guantanamo Bay detainees, sent President Obama a letter saying that the Defense Department was not letting Obama see the evidence. Smith suggested that, as the commander-in-chief, Obama may want to change that.

Well, officials from the Department of Defense who make up a “privilege review team,”  which monitors and censors communication between Guantanamo prisoners and their lawyers, didn’t like that at all.  So in March, they filed a report with a federal court in Washington, D.C., calling the Reprieve lawyers’ letter “unprofessional” and charging that they’d violated the court’s protective order, which protects classified evidence. The odd thing about it was the letter to President Obama contained no evidence, and the attached memo discussing the torture was entirely blacked out — illustrating what Smith called the “bizarre reality” of the court’s order, which forbids even the president from seeing the evidence.

So how his this violating a protective order? The Defense Department’s report isn’t clear, but Judge Thomas Hogan has ordered Smith and his colleague Ahmed Ghappour to appear in his court on May 11 and explain why they should not be held in contempt of court — and perhaps jailed for up to six months — for their alleged transgression.

“What is particularly irksome about this is the issue involved,” Smith wrote in an e-mail this morning. “The government is covering up evidence of torture against Binyam Mohamed, while accusing us of violating a rule in (bizarrely) NOT revealing that evidence.” He added: “What this is really all about is official embarrassment at looking bad.”

In his latest ruling on the matter, U.S. District Court Judge Alvin Hellerstein in New York had given the Justice Department an extension until Thursday to disclose the memos or explain its refusal. The ACLU yesterday said that it agreed to the government’s request to extend the deadline in exchange for commitments by the government that high-level officials will consider releasing not only the Bradbury memos written in May 2005, but also an August 2002 memo written by Jay S. Bybee, then head of OLC. The Bush administration had refused to produce the Bybee memo.

“Collectively, these memos supplied the framework for an interrogation program that permitted the most barbaric forms of abuse, violated domestic and international law, alienated America’s allies and yielded information that was both unreliable and unusable in court,” said Jameel Jaffer, Director of the ACLU National Security Project, in a statement. “While we are disappointed that the Bradbury memos were not released today, we are optimistic that the extension will result in the release of information that would not otherwise have been available to the public.”

The release of these memos has been highly anticipated, in part because if they provide legal justifications for torture and other plainly illegal conduct, they could be used in future prosecutions of former Bush administration officials to claim that the Justice Department’s Office of Legal Counsel was used by senior Bush officials to provide legal cover for unlawful government conduct.

A “commission of inquiry,” proposed by Sen. Patrick Leahy (D-Vt.) and seen by many as a possible alternative to prosecution, is now considered unlikely to gain the necessary Congressional support.

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“Our Board was heartened by your early statements and actions on openness in Government,” wrote the board’s acting chairman, Martin Faga, to President Obama on March 6.  “Still, we have to sound a note of alarm about how well the Government is doing in this area. In fact, we have concluded that this fundamental principle of self-government is at risk and, without decisive action, the situation is likely to worsen.”

Members of the Public Interest Declassification Board are appointed by the White House and Congress, and Martin Faga is a a former director of the National Reconnaissance Office. In the letter, Faga identified a range of problems that warns are preventing declassification, including inadequate resources, coordination and leadership, and poor management of digital records.

“The rapid evolution and expansion of digital records in varying formats have severely affected the Government’s ability to identify and preserve important records and raised the real possibility that we will lose much of our history,” Faga wrote. “Future historians may find that the paper records of early American history provide a more reliable historical account than the inchoate mass of digital communications of the current era.”

Barack Obama (WDCpix)

A heated confrontation is brewing between the Obama administration and the federal judiciary.

Late on Friday, the Justice Department’s lawyers filed a brief with a federal district court in California challenging the court’s power to carry out its own order. The government lawyers insisted that the court has no right to make available to the opposing lawyers in the case a classified document regarding the Bush administration’s warrantless wiretapping program, even though the document is critical to the lawsuit, the lawyers can obtain the necessary top-secret security clearances, and the document would not be released publicly.

Illustration by: Matt Mahurin

As TWI reported on Friday, the case of Al-Haramain v. Obama presents one of the first direct challenges by a victim of the Bush National Security Agency’s warrantless wiretapping program against government officials. But the government has argued vigorously to have the case dismissed, invoking the so-called “state secrets privilege” to refuse to turn over information about the program, and has refused to provide the organization’s lawyers use of a document that reportedly reveals that Al Haramain was one of the program’s victims. Although U.S. District Judge Vaughn Walker has repeatedly rejected the Justice Department’s argument, DOJ lawyers filed an emergency appeal; on Friday afternoon, the Ninth Circuit Court of Appeals rejected it.

So on Friday, in a move that Al-Haramain’s lawyer called “mind-boggling”, the Obama administration told the federal court, once again, that it did not have the authority to order the government to make the critical document in the case available to the organization’s lawyers. The decision to reveal the document, wrote the government, “is committed to the discretion of the Executive Branch, and is not subject to judicial review.”

Not only does that defy the court once again, but there’s a catch: the court already has the document, which was filed months ago under seal. What’s more, the lawyers for Al-Haramain have already seen it; it was inadvertently turned over to them back in 2004, when the government was busy trying to prove that Al-Haramain was funnelling money to terrorists. Weeks later, the government, realizing its mistake, sent FBI agents to the lawyers’ offices to retrieve the document. But the cat was out of the bag: the lawyers had seen evidence that the foundation, and two of its lawyers, had been wiretapped. And that same document has already been filed, along with several other classified, sealed and secret filings, with the U.S. district court.

Realizing this, the Justice Department lawyers on Friday wrote: “If the Court intends to itself grant access to classified information directly to the plaintiffs’ counsel, the Government requests that the Court again provide advance notice of any such order, as well as an ex parte, in camera description of the information it intends to disclose, to enable the Government to either make its own determination about whether counsel has a need to know, or to withdraw that information from submission to the Court and use in this case. If the Court rejects either action by the Government, the Government again requests that the Court stay proceedings while the Government considers whether to appeal any such order.”

In other words, the government lawyers threatened to physically remove the document from the court files if the Judge insists that he has the right — as he already ruled he has — to allow Al-Haramain’s lawyers to see it.

“It’s a not-so-thinly veiled threat to send executive branch authorities (the FBI? the Army?) to Judge Walker’s chambers to seize the classified material from his files!” wrote Jon Eisenberg, Al-Haramain’s lawyer, in an e-mail on Saturday. “In my view, that would be an unprecedented violation of the constitutional separation of powers. I doubt anything like it has happened in the history of this country.”

The stand-off centers on who has the power to decide whether classified information must be made available to someone outside of the government. The Justice Department insists that only the director of the relevant executive agency has that power; and in this case, the Director of the National Security Agency has decided that Al-Haramain and its lawyers should not be allowed to see the classified document, because they don’t have a “need to know” the information it contains.

In fact, it’s clear that in order for Al-Haramain to pursue its case against the government, its lawyers need at the very least the sealed document that indicates they were wiretapped. Indeed, it’s the only known evidence that indicates that the Islamic charity was wiretapped without a warrant; without it, the organization and its lawyers don’t have standing to sue the government.

That’s not a concern of the Justice Department, however, which insisted on Friday: “the Court does not have independent power . . . to order the Government to grant counsel access to classified information when the Executive Branch has denied them such access.”

The Obama administration “seems to be provoking a separation-of-powers confrontation with Judge Walker,” said Eisenberg.

The government’s latest move is just another in an increasingly aggressive set of tactics it’s been using to defend broad executive power to conceal evidence of illegal activity by the Bush administration. In both this case and another case I wrote about earlier, Mohamed v. Jeppesen Dataplan, the Obama administration has invoked the “state secrets” privilege to argue that the subject matter of the lawsuits are themselves state secrets, and therefore that the cases must be dismissed.

Civil liberties advocates had hoped that the Obama administration would be more open about the workings of government – and particularly about the illegal activity that occurred in the name of fighting terrorism under the Bush administration. But they’ve been sorely disappointed. In national security cases, the Obama administration has aggressively used the “state secrets privilege” to insist that it can withhold classified evidence even if that’s contrary to Congressional law.

“In the Bush administration, the state secrets doctrine was used to buttress the power of the president and make it difficult if not impossible to contest such issues as presidential authority to conduct warrantless wiretapping in the United States,” Marc Rotenberg, Executive Director of the Electronic Privacy Information Center and an adjunct professor of law at Georgetown University said last week. “We would think that when such disagreements occur, it’s properly before the judiciary to resolve them. But the Bush administration asserted the state secrets doctrine for the purpose of making it effectively impossible for courts to review the matter,” Rotenberg said. The significance of the Al Haramain case is “the apparent willingness of the Obama administration’’s justice department to carry further that same argument in federal court. It is of great concern.”

Another interesting piece of the government’s filing on Friday – actually, its second filing, at 1:00 AM Eastern time – is that the government, which was supposed to report to the judge about which documents it will declassify, says that it won’t declassify anything. While that’s not a big surprise, the declassification report also says that its previous classified submission to the court contained an error – though it can’t say what that error was, because it’s classified. And, to support all this, the government filed four secret declarations by government officials — which no one but the judge is allowed to see.

“We’ve always suspected that the previous secret filings contained inaccuracies and maybe even outright lies, which is why we have been fighting so hard to see them,” said Eisenberg. “Now it seems we might have been right. Maybe, now that Judge Walker may be about to let us see them, the Government is worried that we’ll spot the lie, so they’re trying to ‘take it back.’ This is extremely weird.”

Contacted over the weekend, the Department of Justice declined to comment, saying the court filings speak for themselves. But David Golove, a professor at New York University School of Law and expert on executive power who’s not involved in the case (and had not seen the latest court filings), said the Obama administration’s latest brief may reflect simply the executive’s usual reluctance to turn over classified information until it absolutely has to. If the government keeps appealing every action by the district court, he speculated, the Ninth Circuit Court of Appeals may finally give in and rule on whether the government has to comply with FISA, or whether it can continue to conceal evidence by invoking the state secrets privilege. Although Judge Walker ruled in al-Haramain’s favor, no court of appeals has ever addressed the issue.

“When a court of appeals tells them they have to hand over the information, will they comply, or will they go to endless ends to prevent it from happening? I don’t think we’ve reached that yet,” said Golove. “It might be fair to view this as just a consquence of fact that they find themselves in the funny position of having to reveal classified information to people they don’t want to before getting a higher court ruling on it,” he added. Then again, he added: “That’s at least one interpretation. We have good reason to be suspicious.”

Image by: Matt Mahurin

President Obama’s sweeping reversals of torture and state secret policies are about to face an early test.

After Obama issued an executive order and two presidential memoranda last week proclaiming a new transparency in the workings of the federal government, advocates for open government were thrilled.

“That was an order we were really looking for,” said Michael Ratner, president of the Center for Constitutional Rights.

Illustration by: Matt Mahurin

The test of those commitments will come soon in key court cases involving CIA “black sites” and torture that the Bush administration had quashed by claiming they would reveal state secrets and endanger national security. Legal experts say that the Bush Department of Justice used what’s known as the “state secrets privilege” – created originally as a narrow evidentiary privilege for sensitive national security information — as a broad shield to protect the government from exposure of its own misconduct.

One such case, dealing with the gruesome realities of the CIA’s so-called “extraordinary rendition” program, is scheduled for oral argument before a federal appeals court in early February. The position the Obama administration takes in this case may be the first major test of its new policies on transparency in government.

Mohamed v. Jeppesen Dataplan, Inc. involves five victims of CIA rendition, or “torture by proxy,” as it’s also known. Abducted abroad, the men were flown by the CIA to cooperating countries whose agents interrogated them under torture. Because federal officials are usually immune from lawsuits, the men later sued the private aviation data company, Jeppesen — a subsidiary of Boeing, one of the largest federal defense contractors — that knowingly provided the flight plans and other assistance necessary for the CIA to carry out its clandestine operations.

The ACLU filed suit on behalf of this group of victims in May 2007, but the Bush administration quickly swooped in, waving the flag of the state secrets privilege. Insisting that the very subject of the lawsuit – the CIA’s rendition program – is itself a state secret, the Justice Department convinced the federal court in California, where Jeppesen is based, to dismiss the case on the grounds that it would harm national security.

By this time though, the CIA’s torture practices had already been widely publicized. As it happens, on the same day that Justice Department lawyers were in a federal court in California insisting that the case against Jeppesen be dismissed to protect CIA secrecy, CIA Director Michael Hayden was testifying before the Senate Select Intelligence Committee under oath that the CIA had waterboarded three prisoners in its custody. Earlier, Hayden had given a speech about “the CIA’s rendition, detention and interrogation programs” at the Council on Foreign Relations. Previous CIA Directors Porter Goss and George Tenet — and even President Bush, in a speech in September 2006 — had also  described and defended the program.

In fact, by the time this lawsuit was filed, the CIA’s rendition of suspected terrorists to foreign countries to be tortured had become an international scandal. Foreign countries such as Egypt, Switzerland, the UK and others that had cooperated with the CIA had been forced to investigate; those investigations had corroborated many of the allegations that are the subject of the case pending against Jeppesen.

Still, the U.S. government, now under President Obama, continues to insist in a brief filed with the U.S. Court of Appeals for the Ninth Circuit that “[t]he sensitivity of the information at issue in this litigation, and the serious harms that would result from its disclosure, compel the Government to assert the state secrets privilege.” The Obama administration has not filed any new briefs or amendments in the case.

If the court agrees, none of the victims of rendition in this case — or likely, in any other — will get his day in court.

“These victims not only haven’t been compensated, they haven’t even been heard,” said Ben Wizner, one of the lead ACLU lawyers handling the case. “Torture victims deserve acknowledgment and compensation.”

Take the case of one of Wizner’s clients, Binyam Mohamed. A 28-year-old Ethiopian citizen and legal resident of the UK, Mohamed was arrested at the airport in Karachi, Pakistan on immigration charges in April 2002. For the next three months, he was held in secret detention, interrogated and tortured by Pakistani authorities, he says; he was also questioned by US and British agents.

In July, according to the lawsuit, he was turned over to the exclusive custody of the United States, whose agents stripped, shackled, and blindfolded him, then dressed him in a tracksuit and dragged him on board a Gulfstream V jet aircraft. With assistance from Jeppesen Dataplan, Mohamed was flown to Morocco, where he was turned over to local police and interrogated under torture for the next 18 months. Mohamed says he was routinely beaten to the point of losing consciousness and, as the ACLU describes in its legal brief, “a scalpel was used to make incisions all over his body, including his penis, after which a hot stinging liquid was poured into his open wounds.”

In January 2004, Mohamed was returned to the custody of U.S. officials, flown to Afghanistan and tortured again, he said, this time at a secret CIA prison. After months of beatings and interrogation following sleep and food deprivation, according to the lawsuit, he was transferred to the prison at Guantanamo Bay, where he remains today.

The stories of Abou Brital, Ahmed Agiza, Mohamed Bashmilah and Bisher Al-Rawi are similar, and much in their accounts is corroborated. Ahmed Agiza’s rendition and torture in Egypt, for example, has been investigated and publicly acknowledged by the government of Sweden, where he was seeking asylum when he was captured. (He’s now serving 15 years in an Egyptian prison for membership in a banned Islamic organization.) Jeppesen’s role is also public record, revealed in documents produced in separate inquiries by the Council of Europe and the European Parliament.

Meanwhile, Britain’s High Court of Justice, which corroborated much of Binyam Mohamed’s story in its own investigation, in August ruled that Mohamed was entitled to obtain documents from the British government to establish that he was tortured so he can seek to exclude evidence extracted by torture as unreliable if he is ever prosecuted by U.S. authorities.

Curiously, however, part of the government’s “state secrets” claim rests on the need to protect information about the participation of U.S. allies in the CIA’s rendition program.

“It would be a remarkable irony if this Court were to affirm the dismissal of this suit in order to protect from disclosure the roles played by other nations – when those very nations are engaged in proceedings that continue to expose precisely the relationships and information that the United States here characterizes as ‘state secrets’, ” the men’s lawyers write in a brief filed with the court of appeals.

The Department of Justice declined to comment on this case. In its brief filed before President Obama took office, however, it argues, largely on the basis of a classified declaration of former CIA Director Michael Hayden submitted “in camera” – that is, for exclusive review by the judge — that release of any information pertaining to this case would harm national security. Hayden’s statement “explained more fully than was possible on the public record the scope of information subject to the privilege assertion, and the harms that would flow from its disclosure,” Justice Department lawyers wrote. Although the victims perhaps “cannot appreciate fully the reasons for the district court’s conclusion . . . or comprehend the substantial harm to national security and foreign relations that could reasonably be expected to result from litigating this case,” the court of appeals should rest assured that the government’s reasoning is sound, write the government lawyers.

Contacted last week by TWI, a Justice Department spokesman would not say whether the new Obama administration would change its position in this case. He confirmed only that oral arguments are scheduled for Feb. 9.

If the Obama administration maintains the government’s position in this case, said Wizner, it would further the Bush administration’s strategy of turning the state secrets privilege into a blanket immunity for the most egregious and unlawful government action.

“Every single civil torture case that’s been filed has been dismissed at the pleadings stage on what non-lawyers would call a technicality,” said Wizner, referring to the state secrets and government immunity defenses that have succeeded in other torture cases.

In another lawsuit filed by the ACLU in 2006 on behalf of rendition victim Khaled El-Masri, for example, a federal court in Virginia accepted the government’s same argument that the subject of the entire case was privileged and dismissed the lawsuit. El-Masri was a German citizen and car salesman when he was abducted in 2003 by U.S. authorities, transported to a secret CIA prison in Afghanistan and tortured, until he was released without charge in 2004, dumped on a hill in Albania. The Fourth Circuit Court of Appeals, an ideologically conservative court long dominated by Republican judges, affirmed the lawsuit’s dismissal. (The Ninth Circuit Court in California that will hear the Jeppesen case is considered more liberal.)

“The Bush administration said over and over not just that these programs were necessary, but that they were legal,” insists Wizner. “But they’ve never allowed any court to rule on it.”

None of the victims involved in the case against Jeppesen were available to talk to TWI, but in an op-ed in the Los Angeles Times, Khaled El-Masri wrote after his case was dismissed in 2007:

“Above all, what I want from the lawsuit is a public acknowledgment from the U.S. government that I was innocent, a mistaken victim of its rendition program, and an apology for what I was forced to endure. Without this vindication, it has been impossible for me to return to a normal life.”

Advocates hope the new administration will stop using the state secrets defense to avoid providing that kind of acknowledgment.

“Instead of this notion that the entire subject matter of the lawsuit is a state secret, there should be a parsing of the evidence,” said Sharon Bradford Franklin, senior counsel at the Constitution Project, an independent nonprofit think tank that issued a comprehensive report last year on the need to reform the state secrets privilege. “The new administration might have a valid state secrets claim about some particular pieces of evidence, but it shouldn’t be the entire lawsuit. We all know there’s been this extraordinary rendition program. The government should consent to an independent review by a judge as to what evidence should or should not be disclosed.”

More broadly, advocates have been pressing for a law such as the bipartisan State Secrets Protection Act, introduced by Sens. Edward Kennedy (D-Mass.) and Arlen Specter (R-Penn.) last year, that would codify and narrow the state secrets privilege “to restore the role of the courts as an independent check,” says Franklin. They’ve also asked the Obama transition team to change the government’s policy on its use.

“We’ve asked that the Attorney General put in place a much better system for reviewing when the Justice Department will assert the state secrets privilege,” said Meredith Fuchs, General Counsel for the National Security Archives at George Washington University. “Because once it’s asserted it’s tremendously powerful.”

In a memorandum issued to the heads of all agencies last week, President Obama wrote: “The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.”

Advocates will watch closely to see how the Obama administration will handle this and other cases that under the Bush administration were stymied by government secrecy.

“Because the Bush administration was so secretive and it played out in so much litigation,” said Fuchs, “what happens in these cases is a good test of whether the Obama administration really means what it’s saying.”

Yes, this is taxpayer money, but the thinking went that if the figure became public, the Soviet Union or the Chinese or Al Qaeda or Cobra Commander could nefariously infer how much money we spent on the CIA station in Sao Tome or something. Congress appropriated the money in secret. I’m not making this up. It went on for decades.

But then Michael McConnell became director of national intelligence! And he came up with a fairly smart strategy. McConnell could blatantly misrepresent the importance of the Bush administration’s warrantless surveillance program; demagogue the congressional debate about the program, and belittle the severity of waterboarding. But if he just declassified things that don’t really matter but are treated as if they possess Utmost National Importance, he’ll come out of the administration looking like a paragon of openness.

All of that is preamble and context for telling you that McConnell just sent me and all the other reporters on his press release a notice informing us that Congress devoted $47.5 billion to intelligence matters in fiscal 2008. But wait! There’s a caveat!

Any and all subsidiary information concerning the intelligence budget, whether the information concerns particular intelligence agencies or particular intelligence programs, will not be disclosed. Beyond the disclosure of the top-line figure, there will be no other disclosures of currently classified budget information because such disclosures could harm national security. The only exceptions to the foregoing are for unclassified appropriations, primarily for the Community Management Account.

That’s bureaucratese for “Don’t think this means I’m going to tell you how much money we spent on any particular program. The cost of my allergist’s Lexus is no more your business than is the price tag on our Death Ray.” Plus ca change.