The American Bear

› The Law Behind the Associated Press Phone-Record Scandal | The New Yorker

From New Yorker General Counsel Lynn Oberlander:

The cowardly move by the Justice Department to subpoena two months of the A.P.’s phone records, both of its office lines and of the home phones of individual reporters, is potentially a breach of the Justice Department’s own guidelines. Even more important, it prevented the A.P. from seeking a judicial review of the action. Some months ago, apparently, the government sent a subpoena (or subpoenas) for the records to the phone companies that serve those offices and individuals, and the companies provided the records without any notice to the A.P. If subpoenas had been served directly on the A.P. or its individual reporters, they would have had an opportunity to go to court to file a motion to quash the subpoenas. What would have happened in court is anybody’s guess—there is no federal shield law that would protect reporters from having to testify before a criminal grand jury—but the Justice Department avoided the issue altogether by not notifying the A.P. that it even wanted this information. Even beyond the outrageous and overreaching action against the journalists, this is a blatant attempt to avoid the oversight function of the courts.

It is not, again, as if the government didn’t have options. The D.C. Circuit (in a 2005 opinion upholding a finding of contempt against the Times’s Judith Miller and Time’s Matt Cooper for refusing to testify about who had disclosed Valerie Plame’s identity as a C.I.A. operative) has held that there isn’t a First Amendment privilege for journalists to refuse to testify before a criminal grand jury, as has the Second Circuit (in a 2006 case in which the government was trying to find out who told the Times about a planned raid on two foundations suspected of providing aid to terrorists). In the wake of the decisions, there was a renewed effort to pass a federal shield law—though the proposed law would not have provided absolute protection in cases of national security—but, with the rise of WikiLeaks, that discussion died.

The Times’s case provides the facts most similar to the A.P.’s. The prosecutor had asked the Times to provide phone records; when the Times refused, he threatened to get the records directly from the phone companies. The Times then went to court and sought a declaratory judgment that its records were protected by reporter’s privilege. The Second Circuit ruled that phone records—even those held by a third party, such as a phone company—were subject to the same common-law privilege that would apply to the journalists’ own records. However, the court noted that there wasn’t a constitutional privilege to refuse to disclose such records to a criminal grand jury, and that any common-law privilege would be not absolute but “qualified”—meaning that it could be overcome by a compelling government interest. The Circuit, however, declined to define the privilege, other than to say that it wouldn’t stand up in the case before it.

Crucially, though the Times lost that case, 2–1, all of the judges agreed that government could not act unilaterally, without judicial review. As Judge Sack said in dissent:

For the question… is not so much whether there is protection for the identity of reporters’ sources, or even what that protection is, but which branch of government decides whether, when, and how any such protection is overcome.

He added, “Judge Winter’s opinion makes clear that the government’s demonstration of ‘necessity’ and ‘exhaustion’ must, indeed, be made to the courts, not just the Attorney General.”

In the A.P.’s case, though, the latter is exactly what did happen. (Though since Eric Holder, the Attorney General, said Tuesday that he recused himself, that demonstration wasn’t even made to him, but to someone else in the Department of Justice.) The Department of Justice chose to avoid the court system—and its independent check on the Department’s power—by serving its subpoenas directly on the phone companies without telling the A.P. In so doing, it apparently relied on an exception to its own policy of notifying a media company in advance of a subpoena if doing so “would pose a substantial threat to the integrity of the investigation.”

If, as has been reported, the grand jury is investigating the leak of information concerning the C.I.A. foiling in Yemen of an Al-Qaeda plot to bomb an airliner heading to the United States, it is hard to understand how a later request for phone records would pose a threat to the integrity of the investigation. This request for two months of records was ostensibly made after the calls were made. If the government had a suspicion that one of its employees was the leak, it could go to a court itself and seek a wiretap of that employee. (Of course, they would have to make a showing of probable cause, which they were able to skip by going directly to the A.P.’s phone companies.) There would seem to be no reason not to let the media organization know that it wanted phone records of calls already made—after all, what was the rush? Let the courts decide whether the Justice Department really needs those records or not.

Then again, this is the Obama/Holder “due process is not judicial process” DoJ.

See also: There’s a Place for Resolving Disputes, and the Administration Chose Not To Use It by Marcy Wheeler.

› A Non-Combatant Terrorist? Holder Issues New Statement On Obama’s Right To Kill Citizens Without Charge or Conviction | Jonathan Turley

We previously discussed how Attorney General Eric Holder wrote a letter confirming that the President would have authority to kill citizens on U.S. soil without a charge or conviction. His answer triggered a principled filibuster by Sen. Rand Paul and another embarrassment to Democratic Senators who, again, chose personality over principle in staying silent. Now, Holder has issued a new statement. No, President Obama still claims the right to kill U.S. citizens on his sole authority. However, Holder now says that, if the citizen is “not engaged in combat on American soil,” the President cannot vaporize him. The answer leaves the constitutional claim of Obama even more confused and conflicted. Does this mean we have a third category now under the policy: citizen, citizen terrorist, and citizen non-combatant terrorist? The difference appears to determine whether you can be vaporized or speak to counsel but Holder is not explaining to the citizenry.

In his prior letter, Holder answered a question about whether the President was claiming the right to kill citizens on U.S. soil. This follows the release of a memo showing that Holder’s description of the policy at Northwestern University Law School was narrower than the actual policy described within the Administration. A memo leaked to the press shows that the Administration has adopted a virtual limitless definition of imminence: “The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”

Last week, Holder said “It is possible I suppose to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States.”

After the filibuster, Holder wrote a short terse response to Paul: “It has come to my attention that you have now asked an additional question: ‘Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?’ The answer to that question is no.”

It is not clear how this “additional questions” differed from the first or why Holder did not answer the question previously. The use of “it has come to my attention” adds a wonderfully dishonest element to an evasive answer. It is not clear what Holder means by “engaged in combat” since the Administration memo shows that the Administration is using an absurdly broad definition of “imminent” threat under the kill list policy. Since the Administration has continued to assert that terrorists are engaged in a war against the U.S., the terse reply of Holder seems designed to preserve later flexibility.

Moreover, there is nothing in the constitutional claim of the Administration that reflects such a limitation. Deciding on where to kill a citizen would be a discretionary policy under the sweeping presidential authority described by the Administration. [++]

› The Drone Question Obama Hasn’t Answered | Ryan Goodman

“It has come to my attention that you have now asked an additional question: ‘Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?’ The answer to that question is no.” — Attorney General Eric H. Holder Jr., in a letter to Senator Rand Paul.

… The senator, whose filibuster had become a social-media sensation, elating Tea Party members, human-rights groups and pacifists alike, said he was “quite happy with the answer.” But Mr. Holder’s letter raises more questions than it answers — and, indeed, more important and more serious questions than the senator posed.

What, exactly, does the Obama administration mean by “engaged in combat”? The extraordinary secrecy of this White House makes the answer difficult to know. We have some clues, and they are troubling.

If you put together the pieces of publicly available information, it seems that the Obama administration, like the Bush administration before it, has acted with an overly broad definition of what it means to be engaged in combat. Back in 2004, the Pentagon released a list of the types of people it was holding at Guantánamo Bay as “enemy combatants” — a list that included people who were “involved in terrorist financing.”

One could argue that that definition applied solely to prolonged detention, not to targeting for a drone strike. But who’s to say if the administration believes in such a distinction?

American generals in Afghanistan said the laws of war “have been interpreted to allow” American forces to include “drug traffickers with proven links to the insurgency on a kill list,” according to a report released in 2009 by the Senate Foreign Relations Committee, then led by John Kerry, now the secretary of state.

The report went on to say that there were about 50 major traffickers “who contribute funds to the insurgency on the target list.” The Pentagon later said that it was “important to clarify that we are targeting terrorists with links to the drug trade, rather than targeting drug traffickers with links to terrorism.”

That statement, however, was not very clarifying, and did not seem to appease NATO allies who raised serious legal concerns about the American targeting program. The explanation soon gave way to more clues, and this time it was not simply a question of who had been placed on a list.

In a 2010 Fox News interview, under pressure to explain whether the Obama administration was any closer to capturing or killing Osama bin Laden, Mr. Kerry’s predecessor, Hillary Rodham Clinton, said that “we have gotten closer because we have been able to kill a number of their trainers, their operational people, their financiers.” That revelation — killing financiers — appears not to have been noticed very widely.

As I have written, sweeping financiers into the group of people who can be killed in armed conflict stretches the laws of war beyond recognition. But this is not the only stretch the Obama administration seems to have made. The administration still hasn’t disavowed its stance, disclosed last May in a New York Times article, that military-age males killed in a strike zone are counted as combatants absent explicit posthumous evidence proving otherwise.

Mr. Holder’s one-word answer — “no” — is not a step toward the greater transparency that President Obama pledged when he came into office, but has not delivered, in the realm of national security.

By declining to specify what it means to be “engaged in combat,” the letter does not foreclose the possible scenario — however hypothetical — of a military drone strike, against a United States citizen, on American soil. It also raises anew questions about the standards the administration has used in deciding to use drone strikes to kill Americans suspected of terrorist involvement overseas — notably Anwar al-Awlaki, the American-born cleric who was killed in a drone strike in Yemen in 2011.

Is there any reason to believe that military drones will soon be hovering over Manhattan, aiming to kill Americans believed to be involved in terrorist financing? No.

But is it well past time for the United States government to specify, precisely, its views on whom it thinks it can kill in the struggle against Al Qaeda and other terrorist forces? The answer is yes.

The Obama administration’s continued refusal to do so should alarm any American concerned about the constitutional right of our citizens — no matter what evil they may or may not be engaged in — to due process under the law. For those Americans, Mr. Holder’s seemingly simple but maddeningly vague letter offers no reassurance.

Ryan Goodman is a professor of law and co-chairman of the Center for Human Rights and Global Justice at New York University.

› “Engaged in Combat” | emptywheel

Last night, Rand Paul said this:

Well, words do make a difference, and I would feel a little more comfortable if we would get in writing a letter that says he doesn’t believe killing people not actively engaged in combat with drones in America, on American soil, is constitutional.

Today, Eric Holder wrote Paul this letter.

It has come to my attention that you have now asked an additional question. “Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?” The answer to that question is no.

Aside from noting that Holder took out the “actively” modifier in Paul’s statement (though Paul said some version of this so many times last night that Holder’s formulation might be justified by one of those other ones), I’d have to say that Paul has only managed to move the pea under a different shell in this shell game.

Because now we need a definition of what “engaged in combat” means.

› Rewarding Impunity | David Cole

[Buried] at the bottom of the list [from the Justice Department’s annual awards for distinguished service] — the 13th of 14 “distinguished service awards” — was a more unusual awardee: Assistant U.S. Attorney John Durham. Durham and his team received the award not for bringing anyone to justice, but for declining to hold accountable anyone in the CIA for its brutal interrogations of detainees at secret prisons, or “black sites,” in connection with President George W. Bush’s “war on terror.”

“In order to conduct the investigations,” the citation reads, “the team had to review significant amounts of information, much of which was classified, and conduct many interviews in the United States and at overseas locations.”

There’s no question that Durham worked hard for a long time, and that the investigation was complex and substantial. After all, more than 100 men were “disappeared” into the CIA’s black sites for extended incommunicado detention and interrogation. Because the CIA prisons were a secret, everything that happened there is classified, complicating investigation still further. And because the investigation itself is secret, we can’t know precisely what evidence Durham considered, what roadblocks he faced, what judgment calls he made.

But here’s what we do know. Many of those “disappeared” into the CIA’s black sites were tortured and/or illegally subjected to cruel, inhuman, and degrading treatment. Abu Zubaydah and Khalid Sheikh Mohammed, for example, were waterboarded 83 and 183 times, respectively. They and other detainees were stripped naked, doused with water, beaten about the face and stomach, slammed into walls, deprived of sleep for days on end, forced into painful stress positions, and confined in small dark boxes for hours at a time. And these were just the “authorized” torture tactics, given a green light by a secret memo written in August 2002 by John Yoo and Jay Bybee from the Justice Department’s Office of Legal Counsel, and specifically okayed by President Bush, Vice-President Dick Cheney, National Security Adviser Condoleezza Rice, Attorney General John Ashcroft, and White House Counsel Alberto Gonzales, among others.

We also know, thanks to the CIA’s own Inspector General, that CIA interrogators in the black sites went beyond even the illegal brutality authorized by high-level officials. One detainee was threatened with a handgun and a power drill. A mock execution was staged next to a detainee’s cell. Interrogators threatened to kill the children of another detainee if he didn’t tell them what they wanted to know.

We also know that in 2005, CIA higher-up Jose Rodriguez ordered the destruction of videotapes of two of those interrogations, shortly after the Washington Post revealed the existence of the CIA secret prisons where the interrogations took place, and while the tapes were under request from several courts and a Senate committee looking into charges of abuse.

Durham cleared everyone in the CIA of accusations of wrongdoing. Does he deserve a medal for that? [continue]

› Eric Holder Rewards the Teams that Gave Torturers and Mortgage Fraudsters Immunity | Marcy Wheeler

What a fraud this man and his DOJ have turned out to be…

As TPM’s Ryan Reilly noted yesterday, among the awards Attorney General Eric Holder gave out at yesterday’s Attorney General’s Award Ceremony was a Distinguished Service Award to John Durham’s investigative team that chose not to prosecute Jose Rodriguez or the torturers who killed their victims.

The 13th Distinguished Service Award is presented to team members for their involvement in two sensitive investigations ordered by two different Attorneys General. In January 2007, Attorney General Michael Mukasey asked Assistant U.S. Attorney John Durham to lead a team that would investigate the destruction of interrogation videotapes by the CIA. Assistant U.S. Attorney Durham assembled the team and began the investigation. Then, in August 2009, Attorney General Holder expanded Assistant U.S. Attorney Durham’s mandate to include a preliminary review of the treatment of detainees held at overseas locations. This second request resulted in the review of 101 detainee matters that led to two full criminal investigations. In order to conduct the investigations, the team had to review significant amounts of information, much of which was classified, and conduct many interviews in the United States and at overseas locations.

The timing on this award–coming even as DOJ aggressively prosecutes John Kiriakou for talking about this torture–is particularly cynical.

Holder also presented a Distinguished Service Award to the team that crafted a $25 billion settlement effectively immunizing the banksters for engaging in systemic mortgage fraud.

The third Distinguished Service Award is presented to the individuals involved in procuring a $25 billion mortgage servicing settlement between the United States, 49 state attorneys general and the five largest mortgage servicers, representing the largest federal-state settlement in history. The settlement includes comprehensive new mortgage loan servicing standards, $5 billion to state and federal treasuries and borrowers who lost their homes to foreclosure, $20 billion in consumer relief and a $1 billion resolution of False Claims Act recoveries by the Eastern District of New York.

As DDay has documented relentlessly, the settlement is little more than kabuki, with most of the “consumer relief” consisting of actions the banks were already taking.

To get an idea of how outrageous it is to give an award to the torture non-prosecution team and the kabuki settlement team, compare what those teams did with the rest of the Distinguished Service recipients.

1. The team that successfully prosecuted United States v. AU Optronics et al.,an international cartel that fixed the price of liquid crystal display (LCD) panels sold in the United States and around the world

2. The team that implemented national standards aimed at eliminating sexual abuse in our nation’s confinement facilities

3. The kabuki mortgage settlement team

4. The team that investigated and dismantled the Coreflood Botnet, also known as Operation Adeona [this was a controversial expansion of Federal power to combat hacking, though since the team worked with a court order, better at least than what the government did to WikiLeaks]

5. The team that investigated and convicted 37 members of the La Mara Salvatrucha (MS-13) gang in the San Francisco area

6. The Tribal Trust Negotiation Team, which negotiated settlements with more than 40 Tribesin complex and long-running Tribal Trust cases [I’m not sure, but I believe this is the Cobell settlement, which is in many ways another kabuki settlement, but at least the tribes finally get some compensation]

7. The Raj Rajaratnam investigation and prosecution team

8. “The team whose extraordinary service led to the prosecution of Ahmed Warsame” [I quoted this because Warsame has not been convicted yet; the second-to-last item in his docket was a sealed January 5, 2012 document following a continuance, suggesting he may be cooperating in some way; this award should be considered recognition for the further twisting of our legal system to allow for novel war on terror uses]

9. The Rod Blagojevich investigation and prosecution team

10. INTERPOL Senior Inspector Joseph J. DeLuca for his outstanding leadership and law enforcement coordination in the apprehension and extradition of international fugitives

11. Assistant Inspector General Thomas F. McLaughlin for 22 years of service in OIG and certain initiatives he conducted while there, including prosecuting department employees

12. The CrimeSolutions.gov Development Team for its leadership in creating and launching the premier online resource for information about evidence-based programs and practices in criminal justice, juvenile justice and crime victim services

13. The torture non-prosecution team

14. The Congressman William Jefferson investigation and prosecution team

Five of these are for successful prosecutions–AU Optronics, MS-13 gang members, Raj Rajaratnam, Rod Blagojevich, William Jefferson. Another two–the Coreflood Botnet and Warsame actions–neutralized a threat, albeit through novel and controversial means. And then there are the teams that worked to make the criminal justice system more humane.

But rather than holding criminals accountable–punishing those that degraded our nation and created new reasons for people to join terrorists, punishing those who crashed our economy and stole the wealth of millions of families–the Durham and Mortgage Settlement teams made us less safe. They immunized crime, rather than punishing it.

“No one is above the law,” Eric Holder has said on other occasions. Not surprisingly, he didn’t say that yesterday, because it’s clear that some people–the torturers and the banksters–are indeed above the law.

› Rights Groups Denounce Dropping of CIA Torture Cases | Jim Lobe

U.S. human rights groups have roundly condemned [last] Thursday’s (Aug. 30th) announcement by Attorney General Eric Holder that the Justice Department will not pursue prosecutions of Central Intelligence Agency (CIA) officers who may have been responsible for the deaths of two prisoners in their custody.

The announcement appeared to mark the end of all efforts by the U.S. government to hold CIA interrogators accountable for torture and mistreating prisoners detained during the so-called “Global War on Terror” launched shortly after the al-Qaeda attacks on Sept. 11, 2001.

For rights activists and for supporters of President Barack Obama, it was the latest in a series of disappointing decisions, including the failure to close the detention facility at the U.S. base in Guantanamo, Cuba. They had hoped Obama would not only end the excesses of President George W. Bush’s prosecution of the war, but also conduct a full investigation of those excesses, if not prosecute those responsible.

“This is truly a disastrous development,” said Laura Pitter, counterterrorism adviser at Human Rights Watch (HRW). “To now have no accountability whatsoever for any of the CIA abuses for which there are now mountains of evidence is just appalling.”

“It completely undermines the U.S.’s ability to have any credibility on any of these issues in other countries, even as it calls for other countries to account for abuses and prosecute cases of torture and mistreatment,” she told IPS.

“Continuing impunity threatens to undermine the universally recognized prohibition on torture and other abusive treatment and sends the dangerous signal to government officials that there will be no consequences for their use of torture and other cruelty,” noted Jameel Jaffer, deputy legal director of the American Civil Liberties Union (ACLU).

“Today’s decision not to file charges against individuals who tortured prisoners to death is yet another entry in what is already a shameful record.”

› Fact check: President Obama has aggressively pursued and addressed national security leaks | Barack Obama

This is actually on the Obama/Biden site - AS A POSITIVE ACHIEVEMENT OR SOMETHING TO OTHERWISE BE PROUD OF:

The Obama administration has prosecuted twice as many cases under the Espionage Act as all other administrations combined.

Under the President, the Justice Department has prosecuted six cases regarding national security leaks.

Before he took office, federal prosecutors had used the Espionage Act in only three cases.

Meanwhile, no one did anything illegal during the Bush era.

› Obama's justice department grants final immunity to Bush's CIA torturers (2) | Glenn Greenwald

[Barack] Obama has shielded Bush torture crimes not only from criminal prosecution, but any and all forms of accountability. Obama himself vigorously opposed and succeeded in killing even a congressional investigation into the torture regime at a time when his party controlled both houses of Congress.

Moreover, Obama’s top officials, as WikiLeaks cables revealed, secretly worked with GOP operatives to coerce other countries, such as Spain and Germany, to quash their investigations into the US torture of their citizens, and issued extraordinary threats to prevent British courts from disclosing any of what was done. And probably worst of all, the Obama administration aggressively shielded Bush officials even from being held accountable in civil cases brought by torture victims, by invoking radical secrecy powers and immunity doctrines to prevent courts even from hearing those claims.

In sum, the Obama administration has been desperate to ensure that there will be no accountability or even that meaningful investigations ever take place. That is almost certainly due to the fact that numerous high-level members of Obama’s own party were so complicit in these crimes. But at least equally important is this remarkable – and, it turns out, prescient – observation from a New York Times article by Charlie Savage in December 2008, on the prospect of torture investigations aimed at Bush officials:

“Because every president eventually leaves office, incoming chief executives have an incentive to quash investigations into their predecessor’s tenure.”

In other words, Obama is motivated to shield Bush officials from accountability for their crimes in the hope that once Obama leaves office, he, too, will be gifted identical immunity from the rule of law.

He’ll need that gift, too. Someday. If we ever regain our sanity.