What’s the problem with secrecy?

In one of my first posts (with a couple follow-ups), I noted that one of the reasons I was a liberal was that I distrust governments and big business but think I have slightly more influence on government. One of the reasons I have more influence with the government is that its operations are open (in theory at least) while corporate meetings are not–I can’t influence something I don’t know about. And this is why  the leaks by Bradley Manning and Edward Snowden are important, they have shown things that the US government is doing secretly. And we have discovered two things: the government has done things that the public might not support; the government has kept things secret that don’t need to be secret. And these are both reasons why government secrecy is anathema to a democracy–I can’t intelligently decide who to vote for if I don’t know what they’re doing.

Trust Us

Here’s the guy who we’re supposed to trust that this newly revealed program is fine:

James Clapper, the director of national intelligence, is still working on his explanation for why he told Senator Ron Wyden in March that the NSA does not wittingly “collect any type of data at all on millions or hundreds of millions of Americans.” As we now know, the NSA does precisely that — metadata (but not content) from pretty much every phone call made in America is collected and stored.

On Thursday, Clapper claimed, “What I said was, the NSA does not voyeuristically pore through U.S. citizens’ e-mails. I stand by that.” Of course, that’s not what he said, and everyone knows it, because video. So now Clapper says that he simply has a different definition of collect than most humans, and this defniition allowed him to answer in the “least untruthful manner.” He admits that this explanation is probably “too cute by half.”

So, the person we’re supposed to trust lied to Congress. And:

The director of a top American spy agency said Tuesday that he believed that material from Iraq’s illicit weapons program had been transported into Syria and perhaps other countries as part of an effort by the Iraqis to disperse and destroy evidence immediately before the recent war.

The official, James R. Clapper Jr., a retired lieutenant general, said satellite imagery showing a heavy flow of traffic from Iraq into Syria, just before the American invasion in March, led him to believe that illicit weapons material ”unquestionably” had been moved out of Iraq.

”I think people below the Saddam Hussein-and-his-sons level saw what was coming and decided the best thing to do was to destroy and disperse,” General Clapper, who leads the National Imagery and Mapping Agency, said at a breakfast with reporters.

I’m sorry, but I don’t trust him.

Trust us

I’m sorry, but I don’t trust you (they also track credit cards):

It was revealed late Wednesday that the National Security Agency has been collecting the phone records of hundreds of millions of US phone customers. The leaked document first reported by the Guardian newspaper gave the NSA authority to collect from all of Verizon’s land and mobile customers, but intelligence experts said the program swept up the records of other phone companies too. Another secret program revealed Thursday scours the Internet usage of foreign nationals overseas who use any of nine US-based internet providers such as Microsoft and Google.

In his first comments since the programs were publicly revealed this week, Obama said safeguards are in place.

Government secrecy is anathema to a democracy and this isn’t good enough:

Obama said he came into office with a ‘‘healthy skepticism’’ of the program and increased some of the ‘‘safeguards’’ on the programs. He said Congress and federal judges have oversight on the program, and a judge would have to approve monitoring of the content of a call and it’s not a ‘‘program run amok.’’

Notice the sleight of hand here:

Senior administration officials defended the programs as critical tools and said the intelligence they yield is among the most valuable data the US collects. Clapper said the Internet program, known as PRISM, can’t be used to intentionally target any Americans or anyone in the U.S, and that  data accidentally collected about Americans is kept to a minimum.

Let’s see:

Analysts who use the system from a Web portal at Fort Meade, Md., key in “selectors,” or search terms, that are designed to produce at least 51 percent confidence in a target’s “foreignness.” That is not a very stringent test. Training materials obtained by The Post instruct new analysts to make quarterly reports of any accidental collection of U.S. content, but add that “it’s nothing to worry about.”

Even when the system works just as advertised, with no American singled out for targeting, the NSA routinely collects a great deal of American content. That is described as “incidental,” and it is inherent in contact chaining, one of the basic tools of the trade. To collect on a suspected spy or foreign terrorist means, at minimum, that everyone in the suspect’s inbox or outbox is swept in. Intelligence analysts are typically taught to chain through contacts two “hops” out from their target, which increases “incidental collection” exponentially. The same math explains the aphorism, from the John Guare play, that no one is more than “six degrees of separation” from any other person.

In other words, every search collects data about Americans and it’s not a big deal.

The NSA is watching you

So, the NSA is grabbing some information from millions of phone calls. Like Kevin Drum, I assumed they were still doing this but it would be nice if there was a general outcry about this. The problem is that most people don’t think this is a big deal–after all they’re not criminals and only criminals care if they’re being watched, right? Here’s why you should care:

The government, like every other organization in existence, responds to pressure and because of that, they will never voluntarily give up added security powers. This is because of the way the public reacts to security issues–if there are civil rights infringements the public doesn’t respond that loudly, but it responds very loudly indeed to security break-downs (such as the bombing in Boston). This means that the default will be to add surveillance to a person that is suspected of a crime even if there’s no real reason for this suspicion.

Think of this example: I call the number of someone who is an actual high-level criminal. The response very well might be to put me on security lists which will mean that I will start to have very real difficulties, for example if I want to fly anywhere. If I called the number by mistake (maybe I know someone who has a number similar to it), then I’m going to be very upset by all this added scrutiny (especially because it’s almost impossible to get off such lists  since they and the whole program will be secret, so I can’t prove I’m on one) but most people will assume I must have done something wrong and ignore me. On the other hand, if I really am a terrorist and end up committing some atrocity there will be a huge outcry if I wasn’t put on such a list. So, on the list I go … unless there is also a large outcry when innocents are put on the list.

I think I’m going to have to start calling numbers like 672-968-7825 and 672-382-5633.

Scandals!!!!!!!!

The Boston Globe details the three BIG scandals affecting President Obama. The three are:

Benghazi: this is a completely Republican generated scandal. Something bad happened and they used that to imply things (there have been so many different implications, it’s near impossible to list them all). Kevin Drum has a nice roundup here.

IRS investigation of Tea Party groups: the IRS should not be political, so this is bad. On the other hand, I really want the IRS to strongly investigate all these new (and existing) 501 (c) organizations that are abusing the system to put unlimited anonymous donations into the political system. All of them should be investigated.

Gathering of AP phone calls by the Justice Department: welcome to the club guys. Many of us liberals, and a few libertarian Republicans, have been complaining about this type of thing since the PATRIOT act was passed. We were in favor of a press shield law. How about Republicans:

The legislation has broad support from journalism organizations and is a compromise worked out by senators, the intelligence community and the Obama administration.

“After years of debate and countless cases of reporters being held in contempt, fined and even jailed for honoring their professional commitment not to publicly reveal their sources, the time has come to enact a balanced federal shield law,” said the committee chairman, Patrick Leahy, D-Vt.

Conservative Republicans and some in the intelligence community believe it can harm attempts to track down leakers of classified national security information.

The ranking Republican on the committee, Sen. Jeff Sessions of Alabama, said the bill “goes beyond protection for journalists. It’s granting journalists a power that is not provided to other people” who possess important information.

It’s good to see that Republicans have come around, it certainly couldn’t be that they’re just trying to hurt Obama.

Update: For example, how many investigations of this were there?

Killing without stated reason

This is not enough:

… Senator Dianne Feinstein of California, said the White House had agreed to give the committee access to all Justice Department legal opinions on the targeted killing of Americans. Two such opinions were briefly shared with senators at the time of Brennan’s confirmation hearing last month; it is unclear how many more memos will now be shared.

Republicans have pressed for more details on the administration’s response to the terrorist attack in Benghazi, Libya, in September, which killed the US ambassador, J. Christopher Stevens, and three other Americans. The committee has been given additional Benghazi material as well, though not enough to satisfy some Republicans.

In addition, a staff member for each senator on the Intelligence Committee will now be permitted for the first time to see the Justice Department memos, which govern the use of drones and other weapons to kill US citizens overseas who have been identified as dangerous terrorists. Previously, only senators themselves were permitted to read the memos, a restriction that Feinstein had strongly protested, staff members said.

‘‘I have reached an agreement with the White House to provide the committee access to all OLC opinions related to the targeted killing of Americans in a way that allows members to fulfill their oversight responsibilities,’’ Feinstein said, referring to the Justice Department’s Office of Legal Counsel. ‘‘I am pleased the administration has made this information available. It is important for the committee to do its work and will pave the way for the confirmation of John Brennan to be CIA director.’’

Congressional officials said the administration had also agreed to provide public, unclassified information about its position on when people suspected of terrorism can be killed legally on US soil. Several members of Congress, including Senator Rand Paul, Republican of Kentucky, have raised the question, but neither Brennan nor Obama has given a clear answer in public.

As the ACLU representative says at the end of the article, this is a good, but small, first step. The rationale for killing someone needs to clear and needs to be public–we are a nation of laws. On the other hand, the Benghazi stuff is stupid and to be ignored.

Obama and Executive Privilege

As I noted a few days ago, Republicans are aching to impeach somebody and President Obama has decided to help them along:

A House committee voted to hold Attorney General Eric Holder in contempt Wednesday for not releasing documents related to Operation Fast and Furious, a botched gun-tracking operation in which federal agents permitted Mexican drug smugglers to buy thousands of firearms that were eventually used in crimes.

The invocation of executive privilege or  state secrets is often used to hide something embarrassing or incriminating, so it should be used only in rare situations and this is not one of them.

As you think about the operation Fast and Furious (the ideas behind it originated under President Bush), remember the reasons behind it. There is a huge drug war going on in Mexico being fueled by the US in two ways: most of the drugs go to the US; many of the guns come from the US. Given that, there is a lot of pressure from Mexico to do something about US guns making their way into Mexico. The sensible thing to do would be to crack down on the ability to buy guns in the US, but imagine what the NRA or Republicans would say about that. So instead we got Fast and Furious.

Watergate, secrecy, and leaks

Today is the 40th anniversary of the beginning of Watergate. As Charles Pierce notes, the lessons learned from Watergate were the wrong ones. For example, President Obama has learned that people who leak government secrets need to be severely punished (also look here, Abramson’s speech is here):

Abramson, who took over as executive editor last September, said several reporters who have covered national security for decades have told her that “the environment has never been tougher or information harder to dislodge. One Times reporter told me, ‘The environment in Washington has never been more hostile to reporting,’ ’’ she said.

…

Abramson pointed out that the Obama administration has mounted six prosecutions involving leaks under the 1917 Espionage Act, double the number under all previous administrations combined.

“The United States has never had an official secrets act,’’ she said. “This would be antithetical to our democratic values. But it seems time to me to ask whether a once obscure espionage law from long ago is now being used to substitute for one.’’

The White House did not respond to a request for comment.

At the same time, legal scholar Geoffrey Stone has concluded that there has not been any instance when the media’s publication of “a legitimate but newsworthy government secret has gravely harmed the national interest,’’ she said.

Republicans think Obama is using the links to make himself look good (gee, no other President has done that) and think his administration has been too open. It’s a surreal atmosphere for the anniversary of Watergate.

Torture and state secrets

The Obama administration is going after another leaker:

The Justice Department on Monday charged a former Central Intelligence Agency officer with disclosing classified information to journalists about the capture and brutal interrogation of a suspected member of Al Qaeda, Abu Zubaydah — adding another chapter to the Obama administration’s crackdown on leaks.

In some sense, it’s hard to feel bad for this guy since he was one of the advocates of torture. The reason I care is the same prosecution would have occured if the guy had leaked the information to show the government was doing something illegal. What makes this irritating is the fact that the Obama administration has not gone after any of the people who actually tortured or allowed torture. Glenn Greenwald notes the problem here. John Cole comments here.

Drones

Via here, this is very unsettling to say the least:

In the space of three years, the administration has built an extensive apparatus for using drones to carry out targeted killings of suspected terrorists and stealth surveillance of other adversaries. The apparatus involves dozens of secret facilities, including two operational hubs on the East Coast, virtual Air Force­ ­cockpits in the Southwest and clandestine bases in at least six countries on two continents.

Other commanders in chief have presided over wars with far higher casualty counts. But no president has ever relied so extensively on the secret killing of individuals to advance the nation’s security goals.

…

On Sept. 30, Awlaki was killed in a missile strike carried out by the CIA under Title 50 authorities — which govern covert intelligence operations — even though officials said it was initially unclear whether an agency or JSOC drone had delivered the fatal blow. A second U.S. citizen, an al-Qaeda propagandist who had lived in North Carolina, was among those killed.

The execution was nearly flawless, officials said. Nevertheless, when a similar strike was conducted just two weeks later, the entire protocol had changed. The second attack, which killed Awlaki’s 16-year-old son, was carried out by JSOC under Title 10 authorities that apply to the use of military force.

When pressed on why the CIA had not pulled the trigger, U.S. officials said it was because the main target of the Oct. 14 attack, an Egyptian named Ibrahim al-Banna, was not on the agency’s kill list. The Awlaki teenager, a U.S. citizen with no history of involvement with al-Qaeda, was an unintended casualty.

…

The outdated procedure reflects the agency’s effort to comply with Title 50 requirements that Congress be provided with timely, written notification of covert action overseas. There is no comparable requirement in Title 10, and the Senate Armed Services Committee can go days before learning the details of JSOC strikes.

Neither panel is in a position to compare the CIA and JSOC kill lists or even arrive at a comprehensive understanding of the rules by which each is assembled.

The senior administration official said the gap is inadvertent. “It’s certainly not something where the goal is to evade oversight,” the official said. A senior Senate aide involved in reviewing military drone strikes said that the blind spot reflects a failure by Congress to adapt but that “we will eventually catch up.”

Here’s a secret war, killing hundreds including US citizens, with little oversight. What could go wrong? And the idea that the long delay on strikes is inadvertent? That’s so stupid it’s laughable–just because something isn’t mandated doesn’t mean it’s prohibited. The person basically said they only give notification when they have to–again, what could go wrong?

Bradley Manning

In another case of President Obama’s problematic behavior to uphold state secrets, now:

Pfc. Bradley E. Manning, the Army intelligence analyst accused of leaking government files to WikiLeaks, will be stripped of his clothing every night as a “precautionary measure” to prevent him from injuring himself, an official at the Marine brig at Quantico, Va., said on Friday.

Private Manning will also be required to stand outside his cell naked during a morning inspection, after which his clothing will be returned to him, said a Marine spokesman, First Lt. Brian Villiard.

As always with this type of stuff, Glenn Greenwald has more as does David Coombs (via Jane Hamsher):

The defense communicated with both PFC Manning and the Brig forensic psychiatrist and learned more about the decision to strip PFC Manning of his clothing every night.  On Wednesday March 2, 2011, PFC Manning was told that his Article 138 complaint requesting that he be removed from Maximum custody and Prevention of Injury (POI) Watch had been denied by the Quantico commander, Colonel Daniel J. Choike.  Understandably frustrated by this decision after enduring over seven months of unduly harsh confinement conditions, PFC Manning inquired of the Brig operations officer what he needed to do in order to be downgraded from Maximum custody and POI.  As even Pentagon Press Secretary Geoff Morrell has stated, PFC Manning has been nothing short of “exemplary” as a detainee.  Additionally, Brig forensic psychiatrists have consistently maintained that there is no mental health justification for the POI Watch imposed on PFC Manning.  In response to PFC Manning’s question, he was told that there was nothing he could do to downgrade his detainee status and that the Brig simply considered him a risk of self-harm.  PFC Manning then remarked that the POI restrictions were “absurd” and sarcastically stated that if he wanted to harm himself, he could conceivably do so with the elastic waistband of his underwear or with his flip-flops. 

Without consulting any Brig mental health provider, Chief Warrant Officer Denise Barnes used PFC’s Manning’s sarcastic quip as justification to increase the restrictions imposed upon him under the guise of being concerned that PFC Manning was a suicide risk.  PFC Manning was not, however, placed under the designation of Suicide Risk Watch.  This is because Suicide Risk Watch would have required a Brig mental health provider’s recommendation, which the Brig commander did not have.  In response to this specific incident, the Brig psychiatrist assessed PFC Manning as “low risk and requiring only routine outpatient followup [with] no need for … closer clinical observation.”  In particular, he indicated that PFC Manning’s statement about the waist band of his underwear was in no way prompted by “a psychiatric condition.”

This is pretty disgusting stuff. I think a message to the president is in order.

But it’s a secret

Despite threatening to take away documents from a judge, despite defying a judge’s orders, the Obama administration lost its argument that the Al Haramain case should be dismissed because it involved ‘state secrets’ (I put it in quotes since the Bush administration had inadvertently given the group evidence that they had been illegally wiretapped and the whole program had been exposed in 2005).

Given the ferocity of the defense, it’s hard to believe this:

A Justice Department spokeswoman, Tracy Schmaler, noted that the Obama administration had overhauled the department’s procedures for invoking the state-secrets privilege, requiring senior officials to personally approve any assertion before lawyers could make it in court. She said that approach would ensure that the privilege was invoked only when “absolutely necessary to protect national security.”

This is a good result, but still leaves lots of room for future excesses and does nothing to punish the people who broke the law (Congress passed laws that made most of the procedures legal and made telecoms immune from lawsuits against them, which the same judge ruled legal). The reason it has limited scope is because it still agrees that one has to be able to prove the government did something illegal and the government doesn’t have to turn over any documents it calls secret.

Glenn Greenwald has a more thorough examination here and Time has a quick one here.

But it’s a state secret

Via KD, it seems the CIA lied about ‘state secrets’ and the court found out. The judge was not happy:

The judge also criticized CIA Director Leon Panetta, saying he’s given conflicting accounts about what should be revealed in the case. The ruling led to the unsealing Monday of more than 200 unclassified versions of classified filings in the 13-year-old case.

“The court does not give the government a high degree of deference because of its prior misrepresentations regarding the state secrets privilege in this case,” Lamberth ruled.

…

Horn sued Brown and Huddle in 1994, seeking monetary damages for violations of his civil rights because of the alleged wiretapping.

Tenet filed an affidavit in 2000 asking that the case against Brown be dismissed because he was a covert agent whose identity must not be revealed in court. Lamberth granted the CIA’s request and threw out the case against Brown in 2004.

But Lamberth found out last year that Brown’s cover had been lifted in 2002, even though the CIA continued to file legal documents saying his status was covert. The judge found that the CIA intentionally misled the court and reinstated the case against Brown.

In fact the judge was so upset that he decided he could order that an individual had to be given security clearance back in August. This is important, since up to now only the executive branch has been allowed to do that.

The US settled for $3 million dollars. There’s more here.

Remember this when you look at other ‘state secrets’ cases: are there really state secrets involved or do the people just not want to be prosecuted or embarrassed? Also remember that the original case that articulated the state secrets provision involved a case where there really weren’t any state secrets involved, the claim was made to cover negligence.

Obama and State Secrets

In this morning’s speech, President Obama mostly hit the right notes but basically called groups like the ACLU stupid:

We see that, above all, in how the recent debate has been obscured by two opposite and absolutist ends. On one side of the spectrum, there are those who make little allowance for the unique challenges posed by terrorism, and who would almost never put national security over transparency. On the other end of the spectrum, there are those who embrace a view that can be summarized in two words: “anything goes.” Their arguments suggest that the ends of fighting terrorism can be used to justify any means, and that the President should have blanket authority to do whatever he wants – provided that it is a President with whom they agree.

This might sound better if his administration hadn’t argued in some cases that the entire case should be dropped because of ‘State Secrets’ even when the information was already out there.

And he uses the old Republican standby, that their policies will lead to deaths:

On the other hand, I recently opposed the release of certain photographs that were taken of detainees by U.S. personnel between 2002 and 2004. Individuals who violated standards of behavior in these photos have been investigated and held accountable. There is no debate as to whether what is reflected in those photos is wrong, and nothing has been concealed to absolve perpetrators of crimes. However, it was my judgment – informed by my national security team – that releasing these photos would inflame anti-American opinion, and allow our enemies to paint U.S. troops with a broad, damning and inaccurate brush, endangering them in theaters of war.

I really don’t understand this. He has basically said that the actions in the photos are terrible, won’t that information already inflame anti-American opinion (it is easier to exploit actual photos, but couldn’t people say something like: ‘the actions are so bad that the US won’t allow their release’?). Also, Obama has been arguing that the US will regain credibility if they’re open, but here he’s against it here because … umm … well it would look bad for the US. It’s not being open if you only do so when it looks good.

More on Binyam Mohamed

Back in February, the Obama administration had argued that a case against Boeing should be dropped because it might reveal state secrets. They lost that argument with an appropriate judicial rebuke:

The court said the government could ask judges to conduct a case-by-case review of whether the disclosure of specific documents would jeopardize national security. But allowing the executive branch to shut down an entire lawsuit whenever an official says its subject is classified would be a “concentration of unchecked power” and lead to abuses, it said.

“According to the government’s theory, the judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the C.I.A. and its partners from the demands and limits of the law,” wrote Judge Michael Daly Hawkins.

Now it seems the Obama administration has again mirrored the Bush administration, this time by threatening to withhold secret information if a British court makes US interrogation procedures public:

The letter warned that if the British government “is unable to protect information we provide to it, even if that inability is caused by your judicial system, we will necessarily have to review with the greatest care the sensitivity of information we can provide in the future.”

The letter also said the “seven paragraphs at issue are based upon classified information shared between our countries,” and that “public disclosure of this information reasonably could be expected to cause serious damage to the United Kingdom’s national security” if the United States withheld intelligence information in the future.

Since it would inevitably do damage to the US, the Obama administration is putting state secrets above public safety. This is all very weird for a president that says he wants transparency.

Bush Justice Department memos released

The memos written by the the Bush administration’s Office of Legal Council have been released by President Obama. This is a good thing, but Obama is still holding to this:

This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.

Let’s see, suppose a few years ago I went into a building and took some stuff acting on the guidance of a neighbor who said it was ok. Some people might think I should be charged with robbery, but not Obama–with the current economic problems, now is not the time to revisit old crimes that could cause dissension. Really, does that make sense? If a crime was committed, someone should pay–I agree that the people following the advice of the OLC probably shouldn’t, but someone should. Also, remember that the interrogations started before these memos came out.

I also like the unwitting irony with this statement:

Dennis C. Blair, the director of national intelligence, cited his experience after taking part in the unpopular Vietnam War. “We in the intelligence community should not be subjected to similar pain,” he said.

If you take away the first sentence it would sound like he was saying that people in the intelligence community shouldn’t be tortured.

And, of course, people in the Bush administration are defending the practices:

The release of these opinions was unnecessary as a legal matter, and is unsound as a matter of policy. Its effect will be to invite the kind of institutional timidity and fear of recrimination that weakened intelligence gathering in the past, and that we came sorely to regret on Sept. 11, 2001.

You see they hope we have forgotten that the intelligence community had all the information needed to have an idea something like the 9/11 attacks were possible. The Patriot act and these ‘enhanced’ interrogation techniques were not needed. And then they follow it up with the usual ‘they do it too’  and ‘it wasn’t that bad’ childen’s arguments:

Disclosure of the techniques is likely to be met by faux outrage, and is perfectly packaged for media consumption. It will also incur the utter contempt of our enemies. Somehow, it seems unlikely that the people who beheaded Nicholas Berg and Daniel Pearl, and have tortured and slain other American captives, are likely to be shamed into giving up violence by the news that the U.S. will no longer interrupt the sleep cycle of captured terrorists even to help elicit intelligence that could save the lives of its citizens.

Of course, they ignore that the knowledge that the US tortures helped al-Qaeda get followers is ignored. And they ignore that people were tortured to death by the US (they pretend that allowing these rules for the CIA had nothing to do with what happened at Abu Ghraib, but the rules inevitably flowed down the chain–it was policy).

Of course, they can’t resist attacking those of us that wanted the disclosure:

In addition, there were those who believed that the U.S. deserved what it got on Sept. 11, 2001.

You know what Mukasey and Hayden can jump off a cliff. They’re the ones who are saying the US should act like the terrorists. Good riddance to them.

Update: I’m sure you won’t be surprised to learn that the writers of the memo lied about conclusions of a sleep study so they could say it was ok to use extended sleep deprivation.

You also won’t be surprised to learn that the Bush administration decided to turn to torture even though interrogation was working and:

A footnote to another of the memos described a rift between line officers questioning Abu Zubaydah at a secret C.I.A. prison in Thailand and their bosses at headquarters, and asserted that the brutal treatment may have been “unnecessary.”

Quoting a 2004 report on the interrogation program by the C.I.A. inspector general, the footnote says that “although the on-scene interrogation team judged Zubaydah to be compliant, elements within C.I.A. headquarters still believed he was withholding information.”

Typical, the bosses think they know more than the people actually doing the job. Of course the CIA types weren’t exactly great:

His interrogation, according to multiple accounts, began in Pakistan and continued at the secret C.I.A. site in Thailand, with a traditional, rapport-building approach led by two F.B.I. agents, who even helped care for him as his gunshot wounds healed.

Abu Zubaydah gave up perhaps his single most valuable piece of information early, naming Khalid Shaikh Mohammed, whom he knew as Mukhtar, as the main organizer of the 9/11 plot.

A C.I.A. interrogation team that arrived a week or two later, which included former military psychologists, did not change the approach to questioning, but began to keep him awake night and day with blasting rock music, have his clothes removed and keep his cell cold.

But I guess the higher ups just wanted to punish him more.

Torture memos to come out?

This (via Kevin Drum) would be a good thing:

Over objections from the U.S. intelligence community, the White House is moving to declassify—and publicly release—three internal memos that will lay out, for the first time, details of the “enhanced” interrogation techniques approved by the Bush administration for use against “high value” Qaeda detainees. The memos, written by Justice Department lawyers in May 2005, provide the legal rationale for waterboarding, head slapping and other rough tactics used by the CIA.
…
The debate about torture ramped up again last week with an account in the New York Review of Books about a secret International Red Cross report that was delivered to the CIA in February 2007. The report, according to journalist Mark Danner, quotes detainees describing, often in gruesome detail, how they were locked in coffin-size boxes; swung by towels around their necks into plywood walls; and forced to stand naked for days while their arms were shackled above their heads.

If President Obama releases these memos, then perhaps he will revisit some of his problematic orders about state secrets. That would be really good.

Bush vs. Obama on State secrets

The Justice Department has now released some of the memos written after 9/11 by the Bush administration. Some of it is simply stunning:

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.

and also:

A newly released Bush administration legal memo from 2002 claimed that the president has an unfettered right to transfer suspected terrorists to other governments without regard for whether they would be subject to torture

I’m actually wondering if this stuff was released now to get our attention away from this almost as stunning bit:

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.

…

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.

(go read the article for the bits that explain this). Obviously, this is at a different level than saying the President could ignore or overrule the First and Fourth amendments, but were these Obama administration lawyers really saying they might send the FBI or other group to break into a judge’s office?

6/5/09 Update: The latest is:

A federal district court judge in California yesterday dismissed a slew of lawsuits filed against telecommunications companies that allegedly helped the U.S. government engage in warrantless wiretapping.

Judge Vaughn Walker in San Francisco dismissed the cases because Congress explicitly gave the telecom companies immunity from civil suits in a 2008 amendment to the Foreign Intelligence Surveillance Act, or FISA.

…

Meanwhile, in a separate ruling in the Al-Haramain case, Judge Walker ruled that the defunct Islamic charity can proceed with its case against the government even without the document that the Obama administration has been trying so desperately to conceal. That document — which the government inadvertently disclosed to Al-Haramain’s lawyers — establishes that the organization was wiretapped, its lawyers say.

More on ‘State Secrets’

I talked about the Binyam Mohamed yesterday. Since then, the NY Times has put out an article with this important bit (bold added):

“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.

“No, your honor,” Mr. Letter replied.

Judge Schroeder asked, “The change in administration has no bearing?”

Once more, he said, “No, Your Honor.” The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.

Other people have also talked about this (Kevin Drum, Glenn Greenwald, and Hilzoy among others) and agree that this is very troubling. Here are a few ways that the government could have argued that would have been acceptable:

• parts of the evidence shouldn’t be brought into open court, because it would expose important state secrets (where the Judge could see the information and decide)
• the case against Boeing shouldn’t go forward, because they are incidental to the charge (they might have provided transport without knowledge of the case)
• ask for more time to review the case

It is not acceptable that they argue that the entire case should be dropped because they say so–especially in this type of case where it’s being argued that a secret program did illegal things. It would be disastrous if a government could get away with whatever it wants just by slapping a secrecy tag on it. It’s still early and this is only one case, but the way it was argued does not bode well.