The Cult of Secrecy at the White House

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NY Times Editorial

There’s no end to President Bush’s slyness in subverting new Congressional law and clinging to the secrecy that has been the administration’s executive cloak. When a vital measure to strengthen the tattered freedom-of-information law won unanimous approval by both houses of Congress, the president was forced to soften his stand and quietly sign it into law on New Year’s Eve.

But, of course, even as open-government groups celebrated, the White House had another trick up its sleeve.

A bit of fine print inserted in the president’s new budget proposal would gut a major provision of the law — the empowerment of a new ombudsman to mediate disclosure disputes and prod agencies to end disgraceful runarounds in which legitimate citizen requests have been deep-sixed without a trace for a decade and more.

Rather than fulfilling Congress’s bipartisan mandate to establish the ombudsman at the respected National Archives, the Bush budget attempts a shell-game switch of the new watchdog to the Department of Justice. Mediator?

This is the very administration-friendly agency already responsible for defending agencies against lawsuits by citizens denied their information requests.

It’s not hard to see what the administration has in mind, for it was former Attorney General John Ashcroft who exploited 9/11 panic and notoriously urged federal agencies to use all legal means to kill public document requests. This has remained de facto policy, all the administration lip service to sunlit government notwithstanding.

The information law passed four decades ago set a 20-day deadline for agencies to reply to requests — a standard that soon became the bureaucracy’s cobwebbed joke on the public. The new law sets penalties for foot-dragging and requires a numerical tracking system so citizens can find out what’s happening to their requests. For the “litigation gamesmanship” documented by the National Security Archive, a private watchdog group, the law provides that requesters driven to sue in court could, if successful, have their attorney fees paid.

The ombudsman’s independence is at the heart of repairing the information law. Congress must strike down the president’s end-run and keep the new watchdog at the National Archives, alert to the public’s understandable suspicions about its government.

from: http://www.nytimes.com/2008/02/07/opinion/07thu2.html?ref=opinion

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By Bruce Ackerman and Oona Hathaway
Friday, February 15, 2008; 4:30 PM

The Bush administration is so intent on securing its legacy in Iraq that it is once again ignoring the Constitution. Without seeking the consent of Congress, it is well on its way toward a long-term agreement with the Iraqi government that threatens to deepen the American commitment without the congressional support the Constitution requires.

President Bush's plan to cut out Congress has provoked a growing chorus of criticism, joined by both Sens. Hillary Clinton and Barack Obama. In response, the administration has begun to back-track from its vision of a sweeping military and economic agreement. Speaking to the Senate Foreign Relations Committee, Secretary of State Condoleezza Rice said that the agreement would not contain a security guarantee committing the country to fixed troop levels or permanent bases. Secretary of Defense Robert M. Gates, speaking before the Senate Armed Services last week, stated that the agreement will be "like other Status of Forces Agreements," which deal with the rights and obligations of the military when operating on foreign soil.

Such agreements, the White House is quick to point out, are not usually subject to congressional approval. That is true. But this truth will not suffice, since the administration is still aiming for an agreement that moves far beyond the traditional scope of these limited military accords. We should not allow false advertising to serve as a cover for a constitutional fait accompli.

For example, the administration plans to exempt civilian contractors from prosecution under Iraqi laws. Military personnel also enjoy this exemption, but they can be court-martialed. These military tribunals have no jurisdiction over civilian contractors. Indeed, many of them will be immune from prosecution anywhere. Current federal law only subjects contractors working in support of the Defense Department to prosecution in American courts for felonies in Iraq. Yet those working for the CIA or the State Department could be left operating in a "no-law" zone if the president had the power to commit America unilaterally. If that happens, contractors could shoot Iraqi civilians without cause or commit sexual assaults against their fellow contractors without facing prison time. No existing status of forces agreement, including those used in such places as South Korea and Germany, contains anything like this wide-ranging exemption.

And for good reason. As commander in chief, the president has the constitutional power to make unilateral agreements concerning military personnel and those directly supporting them. But the Constitution only makes him commander in chief of the "army and navy" -- not all Americans working overseas. He can't reach an agreement with Iraq that exempts independent contractors without Congress getting into the act. At the very least, Congress should not give its consent without amending existing statutes to assure that all civilians granted immunity from Iraqi law can be held criminally responsible in American courts.

Worse yet, the administration is keeping most of its plans secret. (Much of what we have learned comes from leaks reported in the press.) Congress has held two hearings -- on Jan. 23 and Feb. 8 -- on the legitimate scope of the Iraqi agreement, and the administration has twice refused to testify. While Gates and Rice have made a few reassuring remarks, they have fallen far short of full disclosure.

This is unacceptable. Sen. Joseph Biden, as chairman of the Foreign Relations Committee, is a strong critic of the administration's unilateral approach. But if the stone-walling continues, he should make it his committee's business to sponsor a congressional resolution declaring invalid any military agreement that seeks to go beyond the traditional limits of the standard Status of Forces Agreement. No president has the unilateral power to impose broad international obligations on the nation without congressional support. But it is especially wrong for a lame-duck president to make such commitments about a controversial policy that is at the very center of the debate among the candidates vying to succeed him.

The writers are professors at Yale Law School

from: http://www.washingtonpost.com/wp-dyn/content/article/2008/02/15/AR2008021502539.html?hpid=opinionsbox1

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Published: April 4, 2008

You can often tell if someone understands how wrong their actions are by the lengths to which they go to rationalize them. It took 81 pages of twisted legal reasoning to justify President Bush’s decision to ignore federal law and international treaties and authorize the abuse and torture of prisoners.

Eighty-one spine-crawling pages in a memo that might have been unearthed from the dusty archives of some authoritarian regime and has no place in the annals of the United States. It is must reading for anyone who still doubts whether the abuse of prisoners were rogue acts rather than calculated policy.

The March 14, 2003, memo was written by John C. Yoo, then a Pentagon lawyer. He earlier helped draft a memo that redefined torture to justify repugnant, clearly illegal acts against Al Qaeda and Taliban prisoners.

The purpose of the March 14 memo was equally insidious: to make sure that the policy makers who authorized those acts, or the subordinates who carried out the orders, were not convicted of any crime. The list of laws that Mr. Yoo’s memo sought to circumvent is long: federal laws against assault, maiming, interstate stalking, war crimes and torture; international laws against torture and cruel, inhuman or degrading treatment; and the Geneva Conventions.

Mr. Yoo, who, inexplicably, teaches law at the University of California, Berkeley, never directly argues that it is legal to chain prisoners to the ceiling for days, sexually abuse them or subject them to waterboarding — all things done by American jailers.

His primary argument, in which he reaches back to 19th-century legal opinions justifying the execution of Indians who rejected the reservation, is that the laws didn’t apply to Mr. Bush because he is commander in chief. He cited an earlier opinion from Bush administration lawyers that Al Qaeda and Taliban prisoners were not covered by the Geneva Conventions — a decision that put every captured American soldier at grave risk.

Then, should someone reject his legal reasoning and decide to file charges, Mr. Yoo offered a detailed blueprint for escaping accountability.

American and international laws against torture prohibit making a prisoner fear “imminent death.” For most people, waterboarding — making a prisoner feel as if he is about to drown — would fit. But Mr. Yoo argues that the statutes apply only if the interrogators actually intended to kill the prisoner. Since waterboarding simulates drowning, there is no “threat of imminent death.”

After the memo’s general contents were first reported, the Pentagon said in early 2004 that it was “no longer operative.” Reading the full text, released this week, makes it startlingly clear how deeply the Bush administration corrupted the law and the role of lawyers to give cover to existing and plainly illegal policies.

The memo is also a reminder of how many secrets about this administration’s cynical and abusive policies still need to be revealed. As Senator Edward M. Kennedy noted, the release of the Yoo memo is a reminder that neither Congress nor the American people have seen the policy memos that govern interrogations today. We know of at least two being kept secret for supposed reasons of national security, including one authorizing waterboarding.

When the abuses at Abu Ghraib became public, we were told these were the depraved actions of a few soldiers. The Yoo memo makes it chillingly apparent that senior officials authorized unspeakable acts and went to great lengths to shield themselves from prosecution.

from: http://www.nytimes.com/2008/04/04/opinion/04fri1.html?_r=1&ref=opinion&oref=slogin

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In the name of fighting terrorism — and with a clear goal of avoiding accountability — the Bush administration has imposed a level of secrecy on its operations that has no place in a democracy.

One of its most disturbing tactics has been seeking early dismissal of lawsuits alleging serious government misconduct, claiming they would reveal national security secrets. The Senate is now considering a good bill that would rein in this misuse of the state secrets privilege and give victims fair access to the courts and the public a fuller understanding of their government’s actions.

In recent years, a number of important lawsuits have raised credible allegations of government abuses including torture, kidnapping, rendition and domestic eavesdropping. All too often, judges have blocked these suits without examining how and why going forward would compromise the nation’s security.

Congress has also been far too acquiescent, standing aside as the administration undermined individual rights and the constitutional system of checks and balances. It may finally be ready to act.

Next week, the Senate Judiciary Committee is scheduled to vote on the State Secrets Protection Act. Introduced by Senators Edward Kennedy, Democrat of Massachusetts, and Arlen Specter, Republican of Pennsylvania, it would make it harder for this or future administrations to use a flimsy state secrets claim to avoid exposure of illegal or embarrassing conduct.

Legitimate secrets need to be protected, and the bill includes important safeguards. But before judges rule on a state secrets claim, the bill would require them to first review the documents or evidence for which the privilege is invoked — rather than rely on government affidavits asserting that the evidence is too sensitive to be disclosed.

To allow cases to go forward, judges would also be given authority to order the government to produce unclassified or redacted versions of the evidence.

Not surprisingly, the administration is trying to defeat this essential reform. In a recent letter to the Senate, Attorney General Michael Mukasey raised the prospect of a veto and insisted that the president — and not the courts — must have the final say over when and whether the privilege applies. Incredibly, and with no legal basis, he also expressed doubt that Congress has the power to mandate closer review of state secrets claims.

Senator Jon Kyl, Republican of Arizona, is also trying to undermine the act with a damaging amendment that would require judges reviewing state secrets claims to give “utmost deference” to the government, a standard intended to thwart meaningful judicial review.

That, of course, is the problem. The courts have deferred far too often to the president. Passing the Kennedy-Specter bill, without Mr. Kyl’s amendment, would go a long way toward restoring the balance and the accountability and openness that are essential for a democracy.

from: http://www.nytimes.com/2008/04/18/opinion/18fri1.html?_r=1&ref=opinion&oref=slogin

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By DAVID BARSTOW
Published: April 26, 2008

The Pentagon announced on Friday that it was suspending its briefings for retired military officers who often appear as military analysts on television and radio programs.


A spokesman for the Pentagon said the briefings and all other interactions with the military analysts had been suspended indefinitely pending an internal review.

On Sunday, The New York Times reported that since 2002 the Pentagon has cultivated several dozen military analysts in a campaign to generate favorable coverage of the administration’s wartime performance. The retired officers have made tens of thousands of appearances for television and radio networks, holding forth on Iraq, Afghanistan, detainee issues and terrorism in general.

Records and interviews show that the Bush administration worked to transform the analysts into an instrument intended to shape coverage from inside the major networks.

The analysts, many with undisclosed ties to military contractors, have been wooed in hundreds of private briefings with senior government officials, given access to classified information and taken on Pentagon-sponsored trips to Iraq and Guantánamo Bay in Cuba, The Times reported.

Internal Pentagon documents showed that Defense Department officials referred to the retired officers as “surrogates” or “message force multipliers” who could be counted on to deliver administration “themes and messages” in the form of their own opinions.

The documents, which included transcripts of private briefings between senior military leaders and the military analysts, also reveal a symbiotic relationship in which the usual dividing lines between government and journalism have been obliterated.

Military analysts have echoed administration talking points, sometimes even when they suspected the information was false or inflated. Several said they had used their special access as a marketing and networking opportunity or as a window into future business possibilities.

A Pentagon spokesman said the decision to halt the briefings, which was first reported on Friday by Stars and Stripes, was made by Robert Hastings, principal deputy assistant secretary of defense for public affairs.

The decision came amid criticism and questions from members of Congress.

Carl Levin, Democrat of Michigan and chairman of the Armed Services Committee, wrote Robert M. Gates, the defense secretary, this week asking the Pentagon to investigate the program.

Representative Ike Skelton, Democrat of Missouri and chairman of the House Armed Services Committee, said in a speech on Thursday that he and many other members of Congress were “very angry” about the issues raised by the article. “The story does not reflect well on the Pentagon, on the military analysts in question, or on the media organizations that employ them,” he said.

“There is nothing inherently wrong with providing information to the public and the press,” Mr. Skelton added. “But there is a problem if the Pentagon is providing special access to retired officers and then basically using them as pawns to spout the administration’s talking points of the day.”

A third member of Congress, Representative Rosa L. DeLauro, Democrat of Connecticut, wrote to the heads of the five major television networks this week asking each to provide more information on procedures for vetting and hiring military analysts.

“When you put analysts on the air without fully disclosing their business interests, as well as relationships with high-level officials within the government, the public trust is betrayed,” Ms. DeLauro wrote.

from: http://www.nytimes.com/2008/04/26/washington/26analyst.html?_r=1&adxnnl=1&oref=slogin&adxnnlx=1209216175-Au9jkGYs1/E2YDLaFNzx1A

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For a much more in depth examination of the White House propaganda program see the following article:

Behind TV Analysts, Pentagon’s Hidden Hand

By DAVID BARSTOW
Published: April 20, 2008

In the summer of 2005, the Bush administration confronted a fresh wave of criticism over Guantánamo Bay. The detention center had just been branded “the gulag of our times” by Amnesty International, there were new allegations of abuse from United Nations human rights experts and calls were mounting for its closure.

The administration’s communications experts responded swiftly. Early one Friday morning, they put a group of retired military officers on one of the jets normally used by Vice President Dick Cheney and flew them to Cuba for a carefully orchestrated tour of Guantánamo.

To the public, these men are members of a familiar fraternity, presented tens of thousands of times on television and radio as “military analysts” whose long service has equipped them to give authoritative and unfettered judgments about the most pressing issues of the post-Sept. 11 world.

Hidden behind that appearance of objectivity, though, is a Pentagon information apparatus that has used those analysts in a campaign to generate favorable news coverage of the administration’s wartime performance, an examination by The New York Times has found.

The rest: http://www.nytimes.com/2008/04/20/washington/20generals.html?ref=washington

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THE U.S. House of Representatives has angrily and appropriately lashed out at a Pentagon program that used retired senior military officers as propaganda surrogates to sell the Iraq war.

Americans assumed all those retired generals and admirals appearing as guest experts on news programs and talk shows were unbiased authorities delivering the unvarnished truth. Nope. They were part of a carefully orchestrated effort by the Bush administration to exploit their credibility to push an optimistic view of the war and its progress.The Pentagon's message machine was shielded from view until The New York Times recently exposed the detailed campaign of disinformation. Dozens of officers were flattered and fawned over and spoon-fed information by the Pentagon. Most were already connected to defense contractors with lucrative ties as lobbyists, senior executives, board members or consultants.

Virtually none were inclined to complain when they heard dubious information that contradicted their own experience or independent sources.

The administration was looking for favorable coverage of the war, and worked hard to produce it. The Pentagon's panel of nodding heads was especially useful to counteract bad news, such as the abominable treatment of detainees at the Guantánamo military prison.

The House action, part of a defense-policy bill adopted by a huge margin, calls for the Government Accountability Office to investigate the Pentagon operations. Domestic propaganda had been outlawed in previous legislation.

None of this is journalism by other means. The retired military officials were never to mention their access to the Pentagon or their briefings. Policy dissent was not tolerated, as a truth-teller discovered when he was abruptly dismissed.

In the words of the public-relations executive in charge of the Pentagon program, the administration was looking for information dominance. It is pursuit of message control that would make Vladimir Putin proud.

Two wells are poisoned. The Pentagon is tainted, but the military's corps of retired senior officers is hurt as well. They want to be perceived as the honest brokers between politicians and the public. Instead, they come across as touts pushing a product.

from: http://seattletimes.nwsource.com/html/editorialsopinion/2004444422_proped29.html

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Published: June 6, 2008

It took just a few months after the United States’ invasion of Iraq for the world to find out that Saddam Hussein had long abandoned his nuclear, biological and chemical weapons programs. He was not training terrorists or colluding with Al Qaeda. The only real threat he posed was to his own countrymen.

It has taken five years to finally come to a reckoning over how much the Bush administration knowingly twisted and hyped intelligence to justify that invasion. On Thursday — after years of Republican stonewalling — a report by the Senate Intelligence Committee gave us as good a set of answers as we’re likely to get.

The report shows clearly that President Bush should have known that important claims he made about Iraq did not conform with intelligence reports. In other cases, he could have learned the truth if he had asked better questions or encouraged more honest answers.

The report confirms one serious intelligence failure: President Bush, Vice President Dick Cheney and other administration officials were told that Iraq still had chemical and biological weapons and did not learn that these reports were wrong until after the invasion. But Mr. Bush and his team made even that intelligence seem more solid, more recent and more dangerous than it was.

The report shows that there was no intelligence to support the two most frightening claims Mr. Bush and his vice president used to sell the war: that Iraq was actively developing nuclear weapons and had longstanding ties to terrorist groups. It seems clear that the president and his team knew that that was not true, or should have known it — if they had not ignored dissenting views and telegraphed what answers they were looking for.

Over all, the report makes it clear that top officials, especially Mr. Bush, Mr. Cheney and Defense Secretary Donald Rumsfeld, knew they were not giving a full and honest account of their justifications for going to war.

The report was supported by only two of the seven Republicans on the 15-member Senate panel. The five dissenting Republicans first tried to kill it, and then to delete most of its conclusions. They finally settled for appending objections. The bulk of their criticisms were sophistry transparently intended to protect Mr. Bush and deny the public a full accounting of how he took America into a disastrous war.

The report documents how time and again Mr. Bush and his team took vague and dubious intelligence reports on Iraq’s weapons programs and made them sound like hard and incontrovertible fact.

“They continue to pursue the nuclear program they began so many years ago,” Mr. Cheney said on Aug. 26, 2002, adding that “we now know that Saddam has resumed his efforts to acquire nuclear weapons.”

On Oct. 7, 2002, Mr. Bush told an audience in Cincinnati that Iraq “is seeking nuclear weapons” and that “the evidence indicates that Iraq is reconstituting its nuclear weapons program.” Saddam Hussein, he said, “is moving ever closer to developing a nuclear weapon.”

Later, both men talked about Iraq trying to buy uranium in Africa and about the purchase of aluminum tubes that they said could only be used for a nuclear weapons program. They talked about Iraq having such a weapon in five years, then in three years, then in one.

If they had wanted to give an honest accounting of the intelligence on Iraq’s nuclear weapons, Mr. Bush and Mr. Cheney would have said it indicated that Mr. Hussein’s nuclear weapons program had been destroyed years earlier by American military strikes.

As for Iraq’s supposed efforts to “reconstitute” that program, they would have had to say that reports about the uranium shopping and the aluminum tubes were the extent of the evidence — and those claims were already in serious doubt when Mr. Bush and Mr. Cheney told the public about them. That would not have been nearly as persuasive, of course, as Mr. Bush’s infamous “mushroom cloud” warning.

The report said Mr. Bush was justified in saying that intelligence analysts believed Iraq had chemical and biological weapons. But even then, he and his aides glossed over inconvenient facts — that the only new data on biological weapons came from a dubious source code-named Curveball and proved to be false.

Yet Mr. Bush and Mr. Cheney persisted in talking as if there were ironclad proof of Iraq’s weapons and plans for global mayhem.

“Simply stated, there is no doubt that Saddam Hussein now has weapons of mass destruction. There is no doubt that he is amassing them to use them against our friends, against our allies and against us,” Mr. Cheney said on Aug. 29, 2002.

Actually, there was plenty of doubt — at the time — about that second point. According to the Senate report, there was no evidence that Mr. Hussein intended to use weapons of mass destruction against anyone, and the intelligence community never said there was.

The committee’s dissenting Republicans attempted to have this entire section of the report deleted — along with a conclusion that the administration misrepresented the intelligence when it warned of a risk that Mr. Hussein could give weapons of mass destruction to terrorist groups. They said Mr. Bush and Mr. Cheney never used the word “intent” and were merely trying to suggest that Iraq “could” do those terrible things.

It’s hard to imagine that anyone drew that distinction after hearing Mr. Bush declare that “Saddam Hussein would like nothing more than to use a terrorist network to attack and to kill and leave no fingerprints behind.” Or when he said: “Each passing day could be the one on which the Iraqi regime gives anthrax or VX nerve gas or someday a nuclear weapon to a terrorist ally.”

The Senate report shows that the intelligence Mr. Bush had did not support those statements — or Mr. Rumsfeld’s that “every month that goes by, his W.M.D. programs are progressing, and he moves closer to his goal of possessing the capability to strike our population, and our allies, and hold them hostage to blackmail.”

Claims by Mr. Cheney and Mr. Rumsfeld that Iraq had longstanding ties to Al Qaeda and other terrorist groups also were false, and the Senate committee’s report shows that the two men knew it, or should have.

We cannot say with certainty whether Mr. Bush lied about Iraq. But when the president withholds vital information from the public — or leads them to believe things that he knows are not true — to justify the invasion of another country, that is bad enough.

from: http://www.nytimes.com/2008/06/06/opinion/06fri1.html?pagewanted=2&ref=opinion

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US judge: White House aides can be subpoenaed

By MATT APUZZO
Associated Press Writer

WASHINGTON —
President Bush's top advisers are not immune from congressional subpoenas, a federal judge ruled Thursday in an unprecedented dispute between the two political branches.

House Democrats called the ruling a ringing endorsement of the principle that nobody is above the law.

In his ruling, U.S. District Judge John Bates said there's no legal basis for Bush's argument and that his former legal counsel, Harriet Miers, must appear before Congress. If she wants to refuse to testify, he said, she must do so in person. The committee also has sought to force testimony from White House chief of staff Joshua Bolten.

"Harriet Miers is not immune from compelled congressional process; she is legally required to testify pursuant to a duly issued congressional subpoena," Bates wrote. He said that both Bolten and Miers must give Congress all non-privileged documents related to the firings.

The ruling is a blow to the Bush administration's efforts to bolster the power of the executive branch at the expense of the legislative branch. Disputes over congressional subpoenas are normally resolved through political compromise, not through the court system. Had Bush prevailed, it would have dramatically weakened congressional authority in oversight investigations.

The administration can appeal the ruling.

Speaker Nancy Pelosi, D-Calif., called it "very good news for anyone who believes in the Constitution of the United States and the separation of powers, and checks and balances."

Democrats swiftly pledged to call Miers before the Judiciary Committee as soon as September to testify about whether the White House played any role in the firings of nine U.S. attorney's last year.

Judiciary Committee Chairman John Conyers, D-Mich., said he hoped that Miers and Bolten do not appeal the ruling, but that was far from clear.

White House spokesman Tony Fratto and Justice Department spokesman Peter Carr said they were reviewing the opinion and declined immediate comment.

Nonetheless, Conyers signaled election-season hearings will be held on the controversy that scandalized the Justice Department and led to the resignation of a longtime presidential confidant, Attorney General Alberto Gonzales.

"We look forward to the White House complying with this ruling and to scheduling future hearings with Ms. Miers and other witnesses who have relied on such claims," Conyers said in a statement. "We hope that the defendants will accept this decision and expect that we will receive relevant documents and call Ms. Miers to testify in September."

Bates, who was appointed to the bench by Bush, issued a 93-page opinion that strongly rejected the administration's legal arguments. He noted that the executive branch could not point to a single case in which courts held that White House aides were immune from congressional subpoenas.

"That simple yet critical fact bears repeating: the asserted absolute immunity claim here is entirely unsupported by existing case law," Bates wrote.

---

Associated Press reporter Laurie Kellman contributed to this story.

from: http://seattletimes.nwsource.com/html/politics/2008083458_apcongresscontempt.html

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By PETE YOST

Associated Press Writer

WASHINGTON —
A federal judge on Friday rejected the Bush administration's latest attempt to keep secret the identities of White House visitors and declared that the Bush administration had engaged in illegal record-keeping practices.

U.S. District Judge Royce Lamberth concluded the illegal practices took place before October 2004 when the Secret Service transferred large numbers of entry and exit logs to the White House and then deleted internal Secret Service copies of them.

The practices ended, the judge said, after various private organizations went to court in an effort to gain access to the logs.

Lamberth's ruling brushed aside the government's argument that revealing Secret Service logs would impede the president's ability to perform his constitutional duties.

The court said that the likelihood of harm is not great enough to justify curtailing the public disclosure goals of the Freedom of Information Act.

A watchdog group asked for the records to determine whether nine conservative religious leaders visited the White House and Vice President Dick Cheney's residence in October 2006.

Lamberth's decision means the government will have to find other legal grounds if it wants to block release of the Secret Service logs.

The Bush administration's request to extend the presidential communications privilege to Secret Service logs is inconsistent with other decisions by the federal courts in Washington, D.C., the judge said.

from: http://seattletimes.nwsource.com/html/politics/2008609005_apsecretservicewhitehouse.html

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By DEVLIN BARRETT and MATT APUZZO
Associated Press Writers

WASHINGTON —
The Obama administration threw open the curtain on years of Bush-era secrets Monday, revealing anti-terror memos that claimed exceptional search-and-seizure powers and divulging that the CIA destroyed nearly 100 videotapes of interrogations and other treatment of terror suspects.

The Justice Department released nine legal opinions showing that, following the Sept. 11, 2001, terrorist attacks, the Bush administration determined that certain constitutional rights would not apply during the coming fight. Within two weeks, government lawyers were already discussing ways to wiretap U.S. conversations without warrants.

The Bush administration eventually abandoned many of the legal conclusions, but the documents themselves had been closely held. By releasing them, President Barack Obama continued a house-cleaning of the previous administration's most contentious policies.

"Too often over the past decade, the fight against terrorism has been viewed as a zero-sum battle with our civil liberties," Attorney General Eric Holder said in a speech a few hours before the documents were released. "Not only is that school of thought misguided, I fear that in actuality it does more harm than good."

The Obama administration also acknowledged in court documents Monday that the CIA destroyed 92 videos involving terror suspects, including interrogations - far more than had been known. Congressional Democrats and other critics have charged that some of the harsh interrogation techniques amounted to torture, a contention President George W. Bush and other Bush officials rejected.

The new administration pledged on Monday to begin turning over documents related to the videos to a federal judge and to make as much information public as possible.

The legal memos written by the Bush administration's Office of Legal Counsel show a government grappling with how to wage war on terrorism in a fast-changing world. The conclusion, reiterated in page after page of documents, was that the president had broad authority to set aside constitutional rights.

Fourth Amendment protections against unwarranted search and seizure, for instance, did not apply in the United States as long as the president was combatting terrorism, the Justice Department said in an Oct. 23, 2001, memo.

"First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully," Deputy Assistant Attorney General John Yoo wrote, adding later: "The current campaign against terrorism may require even broader exercises of federal power domestically."

On Sept. 25, 2001, Yoo discussed possible changes to the laws governing wiretaps for intelligence gathering. In that memo, he said the government's interest in keeping the nation safe following the terrorist attacks might justify warrantless searches.

That memo did not specifically attempt to justify the government's warrantless wiretapping program, but it provided part of the foundation.

Yoo, now a professor at the University of California at Berkeley School of Law, did not return messages seeking comment.

The memos reflected a belief within the Bush administration that the president had broad powers that could not be checked by Congress or the courts. That stance, in one form or another, became the foundation for many policies: holding detainees at Guantanamo Bay, eavesdropping on U.S. citizens without warrants, using tough new CIA interrogation tactics and locking U.S. citizens in military brigs without charges.

Obama has pledged to close the Guantanamo Bay prison within a year. He halted the CIA's intensive interrogation program. And last week, prosecutors moved the terrorism case against U.S. resident Ali Al-Marri, a suspected al-Qaida sleeper agent held in a military brig, to a civilian courthouse.

A criminal prosecutor is wrapping up an investigation of the destruction of the tapes of interrogations.

Monday's acknowledgment of videotape destruction, however, involved a civil lawsuit filed in New York by the American Civil Liberties Union.

"The CIA can now identify the number of videotapes that were destroyed," said the letter submitted in that case by Acting U.S. Attorney Lev Dassin. "Ninety-two videotapes were destroyed."

It is not clear what exactly was on the recordings. The government's letter cites interrogation videos, but the lawsuit against the Defense Department also seeks records related to treatment of detainees, any deaths of detainees and the CIA's sending of suspects overseas, known as "extraordinary rendition."

At the White House, press secretary Robert Gibbs told reporters he hadn't spoken to the president about the report, but he called the news about the videotapes "sad" and said Obama was committed to ending torture while also protecting American values.

ACLU attorney Amrit Singh said the CIA should be held in contempt of court for holding back the information for so long.

"The large number of videotapes destroyed confirms that the agency engaged in a systematic attempt to hide evidence of its illegal interrogations and to evade the court's order," Singh said.

CIA spokesman George Little said the agency "has certainly cooperated with the Department of Justice investigation. If anyone thinks it's agency policy to impede the enforcement of American law, they simply don't know the facts."

The details of interrogations of terror suspects, and the existence of tapes documenting those sessions, have become the subject of long fights in a number of different court cases. In the trial of Sept. 11 conspirator Zacarias Moussaoui, prosecutors initially claimed no such recordings existed, then acknowledged after the trial was over that two videotapes and one audiotape had been made.

The Dassin letter, dated March 2 to Judge Alvin Hellerstein, says the CIA is now gathering more details for the lawsuit, including a list of the destroyed records, any secondary accounts that describe the destroyed contents and the identities of those who may have viewed or possessed the recordings before they were destroyed.

But the lawyers also note that some of that information may be classified, such as the names of CIA personnel who viewed the tapes.

The separate criminal investigation includes interrogations of al-Qaida lieutenant Abu Zubaydah and another top al-Qaida leader. Tapes of those interrogations were destroyed, in part, the Bush administration said, to protect the identities of the government questioners at a time the Justice Department was debating whether or not the tactics used during the interrogations were legal.

Former CIA director Michael Hayden acknowledged that waterboarding - simulated drowning - was used on three suspects, including the two whose interrogations were recorded.

John Durham, a senior career prosecutor in Connecticut, is leading the criminal investigation, out of Virginia, and had asked that he be given until the end of February to wrap up his work before requests for information in the civil lawsuit were dealt with.

from: http://seattletimes.nwsource.com/html/politics/2008803119_apterrormemos.html

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The memo issued by the acting director of the Justice Department's Office of Legal Counsel just five days before Barack Obama took office comes across almost as, among other things, a bit whiny.

Steven Bradbury wrote to officially retract a series of memos in which his former colleagues secretly rewrote the Constitution.

He acknowledged that their reasoning was at various points "unconvincing" and "not sustainable."

But Bradbury was also making excuses for them. They were afraid, he wrote: "The opinions addressed herein were issued in the wake of the atrocities of 9/11, when policymakers, fearing that additional catastrophic terrorist attacks were imminent, strived to employ all lawful means to protect the nation." They were rushed, confronting "novel and complex legal questions in a time of great danger and under extraordinary time pressure."

No excuse. Not even close.

The memo was one of nine previously undisclosed Office of Legal Counsel documents released by Obama's Justice Department yesterday, most of them making baldly spurious legal arguments to support any number of unprecedented tactics that were either contemplated or employed by the White House.

At about the same time the documents were being released, Attorney General Eric Holder was making a speech putting them in context: "Too often over the past decade, the fight against terrorism has been viewed as a zero-sum battle with our civil liberties," Holder said. "Not only is that school of thought misguided, I fear that in actuality it does more harm than good. I have often said that the test of a great nation is whether it will adhere to its core values not only when it is easy, but also when it is hard....

"There is no reason we cannot wage an effective fight against those who have sworn to harm us while we respect our most honored constitutional traditions. We can never put the welfare of the American people at risk but we can also never choose actions that we know will weaken the legal and moral fiber of our nation."

R. Jeffrey Smith and Dan Eggen write in The Washington Post: "The number of major legal errors committed by Bush administration lawyers during the formulation of its early counterterrorism policies was far greater than previously known, according to internal Bush administration documents released for the first time by the Justice Department yesterday....

"In one of the newly disclosed opinions, Justice Department appointee John Yoo argued that constitutional provisions ensuring free speech and barring warrantless searches could be disregarded by the president in wartime, allowing troops to storm a building if they suspected terrorists might be inside. In another, the department asserted that detainees could be transferred to countries known to commit human rights abuses so long as U.S. officials did not intentionally seek their torture."

Neil A. Lewis writes in the New York Times: "The opinions reflected a broad interpretation of presidential authority, asserting as well that the president could unilaterally abrogate foreign treaties, ignore any guidance from Congress in dealing with detainees suspected of terrorism, and conduct a program of domestic eavesdropping without warrants.

"Some of the positions had previously become known from statements of Bush administration officials in response to court challenges and Congressional inquiries. But taken together, the opinions disclosed Monday were the clearest illustration to date of the broad definition of presidential power approved by government lawyers in the months after the Sept. 11 attacks."

Josh Meyer and Julian E. Barnes write in the Los Angeles Times that one Bush administration lawyer told them the memos are "just the tip of the iceberg" in terms of what was authorized.

Law professor Jack Balkin blogs about "reasoning which sought, in secret, to justify a theory of Presidential dictatorship...

"This theory of presidential power argues, in essence, that when the President acts in his capacity as Commander-in-Chief, he may make his own rules and cannot be bound by Congressional laws to the contrary. This is a theory of presidential dictatorship.

"These views are outrageous and inconsistent with basic principles of the Constitution as well as with two centuries of legal precedents. Yet they were the basic assumptions of key players in the Bush Administration in the days following 9/11."

Scott Horton blogs for Harper's: "We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship. The constitutional rights we learned about in high school civics were suspended. That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution. What we know now is likely the least of it."

Glenn Greenwald blogs for Salon: "Over the last eight years, we had a system in place where we pretended that our 'laws' were the things enacted out in the open by our Congress and that were set forth by the Constitution. The reality, though, was that our Government secretly vested itself with the power to ignore those public laws, to declare them invalid, and instead, create a whole regimen of secret laws that vested tyrannical, monarchical power in the President. Nobody knew what those secret laws were because even Congress, despite a few lame and meek requests, was denied access to them."

Greenwald also writes, with some vindication: "Yet those who have spent the last several years pointing out how unprecedentedly extremist and radical was our political leadership (and how meek and complicit were our other key institutions) were invariably dismissed as shrill hysterics."

from: http://voices.washingtonpost.com/white-house-watch/

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By PAMELA HESS, Associated Press Writer Pamela Hess, Associated Press Writer

WASHINGTON – Not enough relevant officials were aware of the size and depth of an unprecedented surveillance program started under President George W. Bush, let alone signed off on it, a team of federal inspectors general found.

The Bush White House pulled in a great quantity of information far beyond the warrantless wiretapping previously acknowledged, the IGs reported. They questioned the legal basis for the effort but shielded almost all details on grounds they're still too secret to reveal.

The report, mandated by Congress last year and delivered to lawmakers Friday, also says it's unclear how much valuable intelligence the program has yielded.

On the subject of oversight, the report particularly criticizes John Yoo, a deputy assistant attorney general who wrote legal memos defending the policy. His boss, Attorney General John Ashcroft, was not aware until March 2004 of the exact nature of the intelligence operations beyond wiretapping that he had been approving for the previous two and a half years, the report says.

The report, compiled by five inspectors general, refers to "unprecedented collection activities" by U.S. intelligence agencies under an executive order signed by Bush after the Sept. 11, 2001, terror attacks.

Just what those activities involved remains classified, but the IGs pointedly say that any continued use of the secret programs must be "carefully monitored."

Most of the intelligence leads generated under what was known as the "President's Surveillance Program" did not have any connection to terrorism, the report said. But FBI agents told the authors that the "mere possibility of the leads producing useful information made investigating the leads worthwhile."

The inspectors general interviewed more than 200 people inside and outside the government, but five former Bush administration officials refused to be questioned. They were Ashcroft, Yoo, former CIA Director George Tenet, former White House Chief of Staff Andrew Card and David Addington, an aide to former Vice President Dick Cheney.

According to the report, Addington could personally decide who in the administration was "read into" — allowed access to — the classified program.

The only piece of the intelligence-gathering operation acknowledged by the Bush White House was the wiretapping-without-warrants effort. The administration acknowledged in 2005 that it had allowed the National Security Agency to intercept international communications that passed through U.S. cables without seeking court orders.

Although the report documents Bush administration policies, its fallout could be a problem for the Obama administration if it inherited any or all of the still-classified operations.

Bush brought the warrantless wiretapping program under the authority of a secret court in 2006, and Congress authorized most of the intercepts in a 2008 electronic surveillance law. The fate of the remaining and still classified aspects of the wider surveillance program is not clear from the report.

The report's revelations came the same day that House Democrats said that CIA Director Leon Panetta had ordered one 8-year-old classified program shut down after learning lawmakers had never been apprised of its existence.

The IG report said that Bush signed off on both the warrantless wiretapping and other top-secret operations shortly after Sept. 11 in a single presidential authorization. All the programs were periodically reauthorized, but except for the acknowledged wiretapping, they "remain highly classified."

Former Bush Attorney General Alberto Gonzales made a terse reference to other classified programs in an August 2007 letter to Congress. But Rep. Jane Harman, D-Calif., said that when she had asked Gonzales two years earlier if the government was conducting any other undisclosed intelligence activities, he denied it.

Robert Bork Jr., Gonzales' spokesman, said, "It has clearly been determined that he did not intend to mislead anyone."

In the wake of the new report, Senate Judiciary Committee Chairman Sen. Patrick Leahy, D-Vt, renewed his call Friday for a formal nonpartisan inquiry into the government's information-gathering programs.

Former CIA Director Michael Hayden — the primary architect of the program — told the report's authors that the surveillance was "extremely valuable" in preventing further al-Qaida attacks. Hayden said the operations amounted to an "early warning system" allowing top officials to make critical judgments and carefully allocate national security resources to counter threats.

Information gathered by the secret program played a limited role in the FBI's overall counterterrorism efforts, according to the report. Very few CIA analysts even knew about the program and therefore were unable to fully exploit it in their counterterrorism work, the report said.

The report questioned the legal advice used by Bush to set up the program, pinpointing omissions and questionable legal memos written by Yoo, in the Justice Department's Office of Legal Counsel. The Justice Department withdrew the memos years ago.

The report says Yoo's analysis approving the program ignored a law designed to restrict the government's authority to conduct electronic surveillance during wartime, and did so without fully notifying Congress. And it said flaws in Yoo's memos later presented "a serious impediment" to recertifying the program.

Yoo insisted that the president's wiretapping program had only to comply with Fourth Amendment protections against search and seizure — but the report said Yoo ignored the Foreign Intelligence Surveillance Act, which had previously overseen federal national security surveillance.

House Democrats are pressing for legislation that would expand congressional access to secret intelligence briefings, but the White House has threatened to veto it.

source: http://news.yahoo.com/s/ap/20090711/ap_on_go_co/us_domestic_surveillance