No Easy Answers

Monday, November 05, 2007

John Ashcroft's FISA Editorial

The core arguments and contentions in Mr. Ashcroft's November 5, 2007 editorial in the New York Times strike me as weak or divisive. Paragraphs of the editorial in blockquote. This is not the complete editorial, although I did have critical thoughts about every paragraph. Just the same, I'll bet this post is pushing the limits of fair use of the NYT's OpEd.

Uncle Sam on the Line - By JOHN ASHCROFT
Published: November 5, 2007 (NYT)

At the outset, it is critical to understand what the immunity provisions the administration and Congress have negotiated actually do. This is not blanket immunity, as it is sometimes caricatured by its opponents. The Senate bill would confer immunity in only two limited circumstances: if the carrier did not do what the plaintiffs claim; or if the carrier did do what the plaintiffs claim but based on explicit assurances from the highest levels of the government that the activities in question were authorized by the president and determined to be lawful.

"Lawful" is being used as having a singular meaning, where in fact it has more than one meaning. The plaintiff's allege, and are almost certainly correct, that the TSP operated in contravention to statutory law in existence at the time. The meaning of "lawful" that Ashcroft is implying is a different meaning, that even actions that are against statutory law may be "lawful" because they are within Constitutional boundaries.

He is saying that the administration determined the surveillance was within constitutional "warrantless" boundaries, therefore the surveillance was lawful. But here's the rub, the administration refuses to divulge the legal rationale it used to reach that conclusion.

Longstanding principles of law hold that an American corporation is entitled to rely on assurances of legality from officials responsible for government activities. The public officials in question might be right or wrong about the advisability or legality of what they are doing, but it is their responsibility, not the company's, to deal with the consequences if they are wrong.

Therefore, ALL laws that provide a penalty for doing what the government orders are ineffective. "Just following orders." There's another longstanding principle of law. That the public can rely on published (as opposed to secret) statements of law to guide its conduct, and to understand the limits of what others can do, including the limits and parameters of government actions.

To deny immunity under these circumstances would be extraordinarily unfair to any cooperating carriers. By what principle of justice should anyone face potentially ruinous liability for cooperating with intelligence activities that are authorized by the president and whose legality has been reviewed and approved by our most senior legal officials?

It's doubtful that liability would attach to the extent it would ruin a telecom company. The court-imposed remedy is a tough problem to solve, but ruining the private holding of telecoms would just make obvious the hidden fact that the telecoms are private in profit motive only. For all other purposes, telecoms are state-run enterprises. Taxpayer money was spent to install equipment to facilitate interception and retention of virtually 100% of the traffic on the public network. See CALEA.

As a practical matter, in circumstances involving classified intelligence activities, a corporation will typically not know enough about the underlying circumstances and operations to make informed judgments about legality. Moreover, for an initiative like the terrorist surveillance program which the Office of Legal Counsel made clear was based on the Congressional authorization for the use of military force and the presidents war powers under the Constitution a telephone company simply has no expertise in the relevant legal issues.

This is basically saying that the telecom privacy laws can't be applied, for want of facts, by the company that is charged with compliance. Yet the telecom companies are given specific orders as to which communications and information to capture and turn over to the government.

If Ashcroft is arguing that the telecoms don't have the legal rationale that justifies violating the statutory proscriptions, then even if a legal theory such as "AUMF authorizes this" exists, the telecoms who cooperated were NOT given the benefit of the government's rationale for finding the activity to be legal. If not, do they just take the government at its word? "Just following orders."

If the attorney general of the United States says that an intelligence-gathering operation has been determined to be lawful, a company should be able to rely on that determination. Indeed, contrary to the assertion of Senator Russell Feingold, Democrat of Wisconsin, no company can realistically be expected to contradict such judgments by the attorney general, as they will simply not have the facts at hand to do so.

Not the facts? Or not the legal rationale? Or not either? Does the same apply if the government seeks identifiable medical records? School records? No warrant, just the word of the snooper.

Although the lawsuits are couched in the language of accountability and the public's right to know, they would really have the effect of showing the world and our enemies sensitive secrets about how our national security agencies do their work. For domestic purposes, proper accountability already exists through the peoples elected representatives on the House and Senate Intelligence Committees. It is through the legislature, not lawsuits, that we as a nation have tried to balance the need to let our intelligence agencies operate in secret, as they must if they are to be effective, and the need to ensure that they do so lawfully.

And it is precisely a legislative pronouncement, "the statutory telecom law" that is being rendered moot by granting immunity. It's not possible to have it both ways. Either the statutory law will have a substantive effect, or it does not. When the government argues that the statutory law should have no effect in this case, but refuses to publicly disclose its evolution of legal rationale and the scope of its incursion (and in this case, the snoopers resisted all court overview and resisted obtaining changes in legislation, until after the incursion was made public), then its ludicrous to say that "the balancing solution lies with the legislature." In fact, if the public was unaware of the incursion, we wouldn't be debating whether or not the government follows its own statutory laws.

What he means to say is "the balancing solution lies with the snooper, his [secret] judgement and legal rationale is always correct, and the public is not entitled to know any more than that." Fair enough. There are plenty of governments that operate that way. Add the United States of America to the list.

Assuming that the country's communications companies helped the National Security Agency track Qaeda operatives and other terrorists after being assured that their conduct was lawful, they acted as patriots, not privacy violators. The Senate Intelligence Committee acted wisely. The full Congress should follow its lead.

"Patriots" and "privacy violators" are not mutually exclusive sets. The police officers who stuck a broom stick up Abner Louima's ass (or covered up the incident) are probably patriots. The insinuation that Ashcroft is making is that if you question the secret legal judgement of President Bush, then you are not a patriot. Lovely.

Thursday, November 01, 2007

Dissent from al-Marri v. Wright


Note that Judge Hudson is -NOT- part of the 9 member panel involved in rehearing the case, as the Fourth Circuit sits en banc.

Nonetheless, his dissenting opinion is clear and direct.

           Rehearing en banc granted, August 22, 2007


                FOR THE FOURTH CIRCUIT

MARK A. BERMAN, as next friend,

Commander, Consolidated Naval

 No. 06-7427

                       AL-MARRI v. WRIGHT
           Appeal from the United States District Court
         for the District of South Carolina, at Charleston.
                  Henry F. Floyd, District Judge.

                     Argued: February 1, 2007

                      Decided: June 11, 2007

       Before MOTZ and GREGORY, Circuit Judges, and
     Henry E. HUDSON, United States District Judge for the
       Eastern District of Virginia, sitting by designation.

 . . .

                         AL-MARRI v. WRIGHT                           53

HUDSON, District Judge, dissenting:

   I regret that I am unable to concur in the majority opinion, except
to the extent that I agree that this Court has jurisdiction over this
appeal. Although I do not embrace all aspects of the majority's juris-
dictional reasoning, I agree that Section 7 of the Military Commission
Act of 2006 (MCA) does not divest this Court of its constitutional
jurisdiction, under Article I, Section 9, to review habeas corpus deci-
sions involving individual detainees within the United States. See
Hamdi v. Rumsfeld, 542 U.S. 507, 525, 124 S. Ct. 2633, 2644 (2004).
The MCA may, however, foreclose a right of statutory review.
Beyond the jurisdictional question, the majority and I part company.

   While I commend the majority on a thoroughly researched and
impressively written opinion, I must conclude that their analysis flows
from a faulty predicate. In my view, the appellant was properly desig-
nated as an enemy combatant by the President of the United States
pursuant to the war powers vested in him by Articles I and II of the
United States Constitution and by Congress under the Authorization
to Use Military Force (AUMF). See Hamdi v. Rumsfeld, 296 F.3d
278, 281-82 (4th Cir. 2002). ^1 I am also of the opinion that al-Marri

   In Hamdi v. Rumsfeld, the U.S. Supreme Court found that the AUMF
provided congressional authority for the President to detain Hamdi as an
enemy combatant under the narrow facts of that case. The critical ele-
ments of the court's definition of an "enemy combatant", for the pur-
poses of that case, were the petitioner's being: 1) "part of a supporting
force hostile to the United States or coalition partner", and (2) "engaged

54                       AL-MARRI v. WRIGHT

has received all due process entitlements prescribed by existing
United States Supreme Court precedent. I would therefore vote to
affirm the district court's dismissal of al-Marri's Petition for Writ of
Habeas Corpus.

   The wellspring of the majority's reasoning is the notion that a non-
military person arrested on U.S. soil, outside the zone of battle, for
providing active aid to the enemy at time of war, cannot be declared
an enemy combatant and detained for the duration of the hostilities,
but must be prosecuted in the civilian courts of the United States. In
fact, the majority would even go further and find that the language of
the AUMF does not include organizations, such as al Qaeda, that are
not affiliated with recognized nation states. The clear congressional
intent underlying the AUMF was to afford the President of the United
States all the powers necessary to suppress those individuals or orga-
nizations responsible for the terrorist attack on September 11, 2001.
This broad language would certainly seem to embrace surreptitious al
Qaeda agents operating within the continental United States. The
AUMF provided as follows:

     [T]he President is authorized to use all necessary and appro-
     priate force against those nations, organizations, or persons
     he determines planned, authorized, committed, or aided the

in an armed conflict against the United States." Hamdi, 542 U.S. at 526,
124 S. Ct. at 2645 (internal quotation marks omitted).

   The boundaries of activity qualifying for "enemy combatant" status
staked out in Hamdi were not meant to be immutable. The obvious
impact of the limiting language was to confine the court's holding to the
immediate facts before them.

  While al-Marri was not captured while armed in a formal theater of
war, the evidence would certainly support the conclusion that he was
actively supporting forces hostile to the United States -- and that the
forces he was supporting were actively engaged in armed conflict against
the United States.

   Given the unconventional nature of the conflict that the United States
is engaged in with al Qaeda, the exact definitions of "enemy combatants"
and "enemy belligerents" are difficult to conceptualize and apply with

                         AL-MARRI v. WRIGHT                           55

    terrorist attacks that occurred on September 11, 2001, or
    harbored such organizations or persons, in order to prevent
    any future acts of international terrorism against the United
    States by such nations, organizations or persons.

Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001) (emphasis
added). History has proven that al Qaeda, an international terrorist
organization with which the United States is at war, falls squarely
within that definition. See Hamdi v. Rumsfeld, 316 F.3d 450, 459 (4th
Cir. 2003), vacated and remanded on other grounds, Hamdi v. Rums-
feld, 542 U.S. 507, 124 S. Ct. 2633 (2004).

   Central to the majority's analysis is the locus of his arrest. Unlike
the petitioners in Hamdi v. Rumsfeld, 542 U.S. 507, 124 S. Ct. 2633
(2004), and Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), al-Marri is
a lawful resident alien who was not taken into custody in a battle
zone. He was arrested in Peoria, Illinois, where he was residing on a
student visa. Despite powerful evidence of his connection to al Qaeda,
the majority believe the President is without power to declare him an
enemy combatant. They believe he must be indicted and tried for
crimes against the United States. Although definitive precedent is
admittedly sparse, in my opinion, this position is unsupported by the
weight of persuasive authority.

   In Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005), a panel of this
Court unanimously rejected the argument that the locus of capture
was relevant to the President's authority to detain an enemy comba-
tant. See id. at 394. Padilla, a U.S. citizen, was arrested by FBI agents
upon his arrival at O'Hare International Airport in Chicago, Illinois.
Id. at 388. A close associate of al Qaeda, Padilla had been "armed and
present in a combat zone during armed conflict between al
Qaeda/Taliban forces and the armed forces of the United States." Id.
at 390 (internal quotation marks omitted). Moreover, "Padilla met
with Khalid Sheikh Mohammad, a senior al Qaeda operations plan-
ner, who directed Padilla to travel to the United States for the purpose
of blowing up apartment buildings, in continued prosecution of al
Qaeda's war of terror against the United States." Id.

   This Court in Padilla reversed the holding of the district court that
the President lacked authority under the AUMF to detain Padilla, and

56                        AL-MARRI v. WRIGHT

that Padilla must be either criminally prosecuted or released. Id. With
respect to Padilla's argument that the circumstances of his detention
mandated only the option of criminal prosecution, this Court noted:

        . . . We are convinced, in any event, that the availability
     of criminal process cannot be determinative of the power to
     detain, if for no other reason than that criminal prosecution
     may well not achieve the very purpose for which detention
     is authorized in the first place--the prevention of return to
     the field of battle. Equally important, in many instances
     criminal prosecution would impede the Executive in its
     efforts to gather intelligence from the detainee and to restrict
     the detainee's communication with confederates so as to
     ensure that the detainee does not pose a continuing threat to
     national security even as he is confined--impediments that
     would render military detention not only an appropriate, but
     also the necessary, course of action to be taken in the inter-
     est of national security.

Id. at 394-95.

   Military detention during time of war and criminal prosecution
serve discrete functions. The object of criminal prosecution is to pun-
ish for legal transgression. The purpose of military detention is to
immobilize the enemy during hostilities. Hamdi, 542 U.S. at 518, 124
S. Ct. at 2640. Such detention is also intended "to prevent the cap-
tured individual from serving the enemy." In re Territo, 156 F.2d 142,
145 (9th Cir. 1946).

  The only significant fact that distinguishes the justification for
Padilla's detention from that of al-Marri is that Padilla at some previ-
ous point in time had been armed and present in a combat zone. There
was no indication, however, that Padilla was ever a soldier in a formal
sense, particularly while acting on U.S. soil.

   Like Padilla, al-Marri, an identified al Qaeda associate, was dis-
patched to the United States by the September mastermind as a
"sleeper agent" and to explore computer hacking methods to disrupt
the United States' financial system. Moreover, al-Marri volunteered
for a martyr mission on behalf of al Qaeda, received funding from a

                          AL-MARRI v. WRIGHT                          57

known terrorist financier, and communicated with known terrorists by
phone and e-mail. Decl. of Jeffrey N. Rapp, Director, Joint Intelli-
gence Task Force for Combating Terrorism, ¶ 7, Sept. 9, 2004. It is
also interesting to note that al-Marri arrived in the United States on
September 10, 2001. Id.

   The district court in this case credited the Declaration of Rapp,
which was unrebutted, and found by a preponderance of the evidence,
that al-Marri had been properly classified and detained as an enemy
combatant. See Al-Marri v. Wright, 443 F. Supp. 2d 774, 784 (D.S.C.
2006). ^2

   The standard employed by the district court to determine al-Marri's
qualifications for enemy combatant status was analogous to that
invoked by the United States Supreme Court in Ex Parte Quirin, 317
U.S. 1, 63 S. Ct. 2 (1942). In Quirin, the Court explained,

         [E]ntry upon our territory in time of war by enemy bellig-
      erents, including those acting under the direction of the
      armed forces of the enemy for the purpose of destroying
      property used or useful in prosecuting the war, is a hostile
      and war-like act. . . .


        . . . Citizens who associate themselves with the military
      arm of the enemy government, and with its aid, guidance
      and direction enter this country bent on hostile acts are
      enemy belligerents within the meaning of . . . the law of
      war. . . .

Id. at 36-38. The Quirin Court further provided that "[i]t is without
significance that petitioners were not alleged to have borne conven-
tional weapons or that their proposed hostile acts did not necessarily
contemplate collision with the Armed Forces of the United States."
Id. at 37. "Nor are petitioners any the less belligerents if, as they

   Al-Marri not only failed to offer any evidence on his behalf, he
refused to even participate in the initial evidentiary process. Al-Marri,
443 F. Supp. 2d at 785.

58                        AL-MARRI v. WRIGHT

argue, they have not actually committed or attempted to commit any
act of depredation or entered the theatre or zone of active military
operations." Id. at 38.

   Ex Parte Milligan, 71 U.S. 2 (1866), does not undermine the dis-
trict court's decision. Milligan did not associate himself with a rebel-
lious State with which the United States was at war. See Milligan, 71
U.S. at 131; Quirin, 317 U.S. at 45, 63 S. Ct. at 19 (noting that the
Court in Milligan "concluded that Milligan [was] not . . . a part of or
associated with the armed forces of the enemy"). In this case, the
unrebutted evidence shows that al-Marri associated himself with and
became an agent of al Qaeda, the organization targeted by the AUMF
and the enemy with which the United States is at war. See Rapp Decl.
¶ 7 ("Al-Marri is an al Qaeda `sleeper agent' . . . was trained at an al
Qaeda terror camp . . . met personally with Usama Bin Laden . . . and
volunteered for a martyr mission."). ^3 As noted above, it is without sig-
nificance that al Marri did not himself carry a conventional weapon
in a zone of active military operations. See Quirin, 317 U.S. at 37-38.

   In Hamdi, the Supreme Court considered the due process require-
ments for a citizen being held in the United States as an enemy com-
batant. See Hamdi, 542 U.S. at 509, 124 S. Ct. at 2635. Hamdi was
an American citizen captured in Afghanistan for allegedly taking up
arms with the Taliban in a combat zone. Id. at 510, 124 S. Ct. at 2635.
Like al-Marri, Hamdi was being detained at the Naval Brig in
Charleston, South Carolina. Id. at 510, 124 S. Ct. 2636. After apply-
ing a balancing of interest calculus, the Court observed, "a citizen-

   Just as mere presence is not sufficient to make one a part of a criminal
conspiracy or an accomplice to a crime, I agree with the majority that
mere association with al Qaeda or an organization that supports al Qaeda
does not necessarily make one an enemy combatant. See Milligan, 71
U.S. at 131 (stating that "[i]f in Indiana [Milligan] conspired with bad
men to assist the enemy, he is punishable for it in the courts of Indiana").
This is not a case, however, of mere association. Al-Marri trained with
and became an agent of al Qaeda and, operating under its guidance and
direction, entered the United States on September 10, 2001, "for the pur-
pose of engaging in and facilitating terrorist activities subsequent to Sep-
tember 11," the very activities that the AUMF was intended to prevent.
Rapp Decl. ¶ 7; see AUMF § 2(a).

                         AL-MARRI v. WRIGHT                           59

detainee seeking to challenge his classification as an enemy comba-
tant must receive notice of the factual basis for his classification, and
a fair opportunity to rebut the Government's factual assertions before
a neutral decisionmaker." Hamdi, 542 U.S. at 533, 124 S. Ct. at 2648.
"It is equally fundamental that the right to notice and an opportunity
to be heard must be granted at a meaningful time and in a meaningful
manner." Id. at 533, 124 S. Ct. at 2649 (internal quotation marks

   After upholding the power of the President to detain al-Marri under
the AUMF, the district court, after providing him with all due process
entitlements articulated in Hamdi, found that his continued detention
as an enemy combatant was proper and dismissed his petition. See Al-
Marri, 443 F. Supp. 2d at 785. In addition, al-Marri was represented
by counsel at all stages of the proceedings below.

   I believe the district court correctly concluded that the President
had the authority to detain al-Marri as an enemy combatant or bellig-
erent. Although al-Marri was not personally engaged in armed con-
flict with U.S. forces, he is the type of stealth warrior used by al
Qaeda to perpetrate terrorist acts against the United States. Al-Marri's
detention is authorized under the AUMF "to prevent any future acts
of international terrorism against the United States." AUMF § 2(a).
Furthermore, setting aside the amorphous distinction between an
"enemy combatant" and an "enemy belligerent," there is little doubt
from the evidence that al-Marri was present in the United States to aid
and further the hostile and subversive activities of the organization
responsible for the terrorist attacks that occurred on September 11,

  I therefore vote to affirm the district court.


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