No Easy Answers

Sunday, January 27, 2008

Senator Bond: The Facts Strike Back on FISA


                    THE "FACTS STRIKE BACK" ON FISA
       50 Myths Exposed: The December 17, 2007 Senate Filibuster

                           TABLE OF CONTENTS

I.     Terrorist Surveillance Program

II.    FISA as the Exclusive Means to Conduct Electronic Surveillance

III.   Foreign Targeting

IV.    Liability Protection

V.     The House RESTORE Act

VI.    Senate Judiciary Committee Substitute

VII.   SSCI Bill, S. 2248

VIII.  Calls Involving U.S. Citizens

IX.    Foreign Intelligence Surveillance Court

X.     The Protect America Act

                          I. Terrorist Surveillance Program
                Myths                                               Facts

1) The main justification for the Terrorist       Article II of the United States Constitution
   Surveillance Program (TSP) was the             gives the President the authority to conduct
   Authorization for the Use of Military Force    warrantless surveillances to collect foreign
   (AUMF). (Dodd, p. 12)                          intelligence information. There is nothing new
                                                  or aggressive about relying on Article II
2) The Administration now argues that the         authority in the context of foreign intelligence
   TSP was grounded in the "extremely             surveillance. Courts, including the FISA Court
   nebulous authority of the President to         of Review in the In Re Sealed Case decision
   defend the country" that they find in the      (2002), and the 4th Circuit in the Truong case,
   Constitution. (Dodd, p. 12)                    among others, have long recognized
                                                  distinctions between domestic and foreign
3) We need full hearings on the TSP before        surveillance--and the President's authority to
   the Intelligence and Judiciary Committees.     conduct foreign intelligence surveillance. The
   (Dodd, p. 14; Boxer, p. 53; Feingold, p.       Clinton Administration recognized this
   115)                                           authority when it conducted a warrantless
                                                  search of Aldrich Ames' residence in 1993. It
4) It is clear that the Administration made a     is this Article II authority that always has been
   big mistake in not using FISA in the first     the foundation and main justification for the
   place. A FISC judge proved earlier this        President's Terrorist Surveillance Program
   year that the TSP could be done under          (TSP), initiated in the wake of the September
   FISA. (Feinstein, p. 62, 65)                   11th terrorist attacks.

5) The White House and the Department of          As reflected in its report accompanying S.
   Justice (DoJ) relied on a new and              2248, the Senate Select Committee on
   aggressive interpretation of the President's   Intelligence (SSCI) has done a thorough,
   Article II authority, a new and expanded       comprehensive, and non-partisan review of the
   view of Presidential authority. (Feinstein,    TSP, holding numerous hearings and briefings
   p. 62)                                         on the TSP and telecom carrier liability. Given
                                                  the sensitivity of the TSP, the SSCI is the only
6) New reports suggest that the                   Committee with jurisdiction that is capable of
   Administration began its warrantless           conducting full hearings. The National
   spying even before 9/11. In clear violation    Security Agency (NSA) Inspector General,
   of FISA and the Fourth Amendment, it           who has the necessary expertise, has also
   never told the FISC what it was doing. We      conducted oversight of the TSP since 2002.
   still don't know how deeply the TSP            For these reasons, an historical Inspector
   invaded the privacy of millions of innocent    General audit of the TSP is unnecessary.
   Americans. (Kennedy, p. 69)
                                                  Exactly what the Foreign Intelligence
7) Numerous reports indicate that the TSP         Surveillance Court (FISC) knew about the TSP
   covered not only international calls, but      cannot be stated publicly, but any Senator can
   domestic calls with friends, neighbors, and    come to the SSCI for a briefing on that issue.
   loved ones. (Kennedy, p. 70)

8) The DoJ legal opinions on the TSP were               There is no evidence to substantiate claims
   "flimsy." The opinions are being classified          about warrantless spying on Americans prior to
   to protect the President's political security,       the 9/11 terrorist attacks. Nor is there any
   not our national security. (Wyden, p. 82)            evidence to substantiate the claim that the TSP
                                                        covered domestic calls between friends,
9) An audit of the President's illegal                  neighbors, and loved ones. As the President
   wiretapping program by relevant inspectors           has stated, the TSP involved the collection of
   general is long overdue. (Feingold, p. 112)          international calls involving members of al

                                                        Some argue that the TSP should have been
                                                        conducted under the Foreign Intelligence
                                                        Surveillance Act (FISA). A decision by a
                                                        FISC judge this past spring, however, proved
                                                        that the TSP could not be done under FISA as
                                                        it existed at that time. This decision resulted in
                                                        significant intelligence gaps and led to the need
                                                        for, and passage of, the Protect America Act

                                                        Some Senators have made negative comments
                                                        about the legal reasoning by DoJ in support of
                                                        the TSP. In turn, such comments have been
                                                        used to argue against any liability protection
                                                        for the carriers who allegedly assisted the
                                                        Government. Although one or two Members
                                                        of Congress who have reviewed the opinions
                                                        question DoJ's analysis, I have reviewed the
                                                        opinions and found them soundly reasoned.
                                                        Because the TSP involved highly sensitive
                                                        sources and methods, the DoJ legal opinions
                                                        are classified and their contents cannot be
                                                        discussed publicly.

                     II. FISA as the Exclusive Means to Conduct
                                  Electronic Surveillance
               Myths                                                  Facts

10) Congressional intent from 1978 is clear.        The Constitution is the highest law in the land
    Congress clearly intended for FISA to be        and trumps any statute. It is false to suggest
    the exclusive means under which the             that the President has no inherent constitutional
    Executive branch could conduct electronic       authority to conduct warrantless surveillance
    surveillance. (Feinstein, p. 64)                for foreign intelligence purposes because
                                                    Congress tried to limit it in FISA. Congress in
11) "But the Bush Administration apparently         1978 recognized the tension between the Act it
    decided that FISA was an inconvenience."        was creating and the President's inherent
    (Kennedy, p. 70)                                authority under Article II.

12) Arguing that the President has inherent         Because Congress cannot by legislation
    constitutional authority to wiretap without     exterminate a President's constitutional power,
    a court order is "an invitation to              if Congress wanted to go further, the
    lawlessness." (Feingold, p. 115)                Constitution would have to be changed.

13) Congress has spoken very clearly in FISA        Warrantless surveillance for foreign
    and limited the President's power to            intelligence collection has been an integral part
    conduct surveillance. The President must        of our nation's foreign intelligence gathering.
    follow the law that Congress passes.            During World War II, our warrantless
    (Feingold, p. 115-116)                          surveillance of the German and Japanese
                                                    militaries and the breaking of their codes
14) Warrantless spying threatens to undermine       preserved our democracy.
    our democratic society unless legislation
    brings it under control. (Dodd, p. 16)

                                   III. Foreign Targeting
               Myths                                                  Facts

15) The SSCI bill permits the Government to         The SSCI bill only allows targeting of persons
    acquire foreigners' communications with         outside the U.S. to obtain foreign intelligence
    Americans inside the United States,             information. This is not a new form of
    regardless of whether anyone involved in        surveillance; the NSA has been doing this
    the communication is under any suspicion        since its inception. Nor is it dragnet
    of wrongdoing. There is no requirement          surveillance. The targets of acquisition must
    that the foreign targets of this surveillance   be foreign targets (e.g., suspected terrorists or
    be terrorists, spies, or other types of         spies) and the Attorney General and the
    criminals. (Feingold, p. 33)                    Director of National Intelligence (DNI) must
                                                    certify that a significant purpose of the
16) Many law-abiding Americans who                  acquisition is to obtain foreign intelligence
    communicate with completely innocent            information. For example, if a foreign target is
    people overseas will be swept up in this        believed to be an agent or member of al Qaeda,
    new form of surveillance. (Feingold, p. 33;     then all the communications of that target
    Kennedy, p. 67)                                 could be intercepted.

17) We are talking about a huge dragnet that        Since the acquisition is targeted against
    will sweep up innocent Americans.               suspected terrorists and the vast majority of
    (Feingold, p. 33)                               intercepts are overseas, only Americans who
                                                    communicate with those suspected terrorists
18) "Parents of children call family members        will have those specific communications
    overseas. Students e-mail friends they have     monitored. If those same communications turn
    met while studying abroad . . . We are          out to be innocent, they will be "minimized,"
    going to give the Government broad new          or suppressed, so that Americans' privacy
    powers that will lead to the collection of      interests are protected. It is misleading to
    much more information on innocent               suggest that the Intelligence Community is
    Americans." (Feingold, p. 33)                   spying on parents who are calling their
                                                    children overseas, on students who are talking
19) The SSCI bill has an enormous problem:          with their friends, or on our soldiers on the
    the complete lack of incentives for the         battlefield. Our intelligence professionals are
    Government to target people overseas            busy tracking real terrorists, members of al
    rather than people in the United States.        Qaeda, not listening to family discussions or
    (Feingold, p. 112)                              conversations between classmates.

                                                    As a practical matter, if the Intelligence
                                                    Community becomes interested in the
                                                    communications of a person in the United
                                                    States, they seek a Title III criminal warrant or
                                                    a FISA order to intercept all of the
                                                    communications of that person, not just the
                                                    communications with the target overseas.

                                 IV. Liability Protection
               Myths                                                 Facts

20) The President is wrong to claim that failing   In his original FISA modernization request,
    to give retroactive immunity will make the     made in April 2007, the DNI asked for full
    telecoms less likely to cooperate in the       liability protection for all those allegedly
    future. (Dodd, p. 19)                          involved in the TSP. The SSCI weighed the
                                                   arguments in favor of and against liability
21) We are talking about protecting companies      protection. In its considered judgment, the
    that complied with surveillance requests       SSCI determined that civil liability protection
    they knew were illegal; it is premature to     for the providers was not only fair, but it was
    be talking about this subject. (Kennedy, p.    the only way to safeguard our intelligence
    70)                                            sources and methods and to ensure that the
                                                   providers would be willing to cooperate with
                                                   legitimate requests in the future. The SSCI has
22) The President is demanding immunity            determined that the companies that allegedly
    without telling all Members of Congress        assisted the Government with the TSP acted in
    which companies broke the law, how they        good faith and relied upon representations from
    broke the law, or why they broke the law.      the highest levels of Government that the
    He is asking Congress to legislate in the      program was lawful. Further, because the
    dark. (Kennedy, p. 71)                         Government has asserted the state secrets
                                                   privilege, the companies cannot prove that they
23) The Administration has used the scare          are entitled to statutory immunity. The use of
    tactic of claiming that lawsuits will          the term "amnesty" is incorrect in this context
    jeopardize national security by leaking        because it assumes that the alleged carriers did
    sensitive information. The media has           something illegal. These carriers deserve
    already exposed the TSP and it would be        liability protection, not amnesty.
    foolish to assume that terrorists don't
    already know we are trying to intercept        The documents that are most relevant to
    their communications. (Kennedy, p. 71;         whether the providers acted in good faith are
    Dodd, p. 15)                                   the letters from the Government to the
                                                   providers. The SSCI read these letters several
24) It is sheer nonsense to suggest that           months before the Committee's vote on its bill.
    allowing the lawsuits to proceed might         The providers never saw the DoJ legal
    jeopardize national security by deterring      opinions or Presidential authorizations that
    future cooperation. The companies already      were made available to the SSCI shortly before
    have full immunity under FISA. (Kennedy,       the vote.
    p. 71; Feingold, p. 113; Dodd, p. 15)
                                                   Although the media exposed the TSP, it is
25) Voting for amnesty will be a vote for          important to remember that anyone who served
    silence, secrecy, and illegality. (Kennedy,    as a source for that article violated the law and
    p. 72)                                         their oath to protect and defend the
                                                   Constitution of the United States. While it is
26) After the SSCI dealt with the                  true that the existence of the TSP has been
    Administration's original concern that         revealed, details about the program have not.
    FISA needed to be modernized, the              Each day that these lawsuits continue--with
    Administration asked for something else--      the prospect of civil discovery--brings new
    this total grant of immunity. (Wyden, p.       risks that sensitive details about our
    83)                                            intelligence sources and methods will be
                                                   revealed. As General Hayden stated, the
27) Substitution will give the carriers the        disclosure of the TSP has had a significant
    protection of the courts and the               impact on intelligence collection. We should
    Government can control the case for            not give terrorists any additional insight
    national security purposes. (Cardin, p. 110)   through continued TSP litigation.

                                                   Substitution does not give the carriers adequate
                                                   protection. Civil discovery would still be
                                                   allowed to proceed against them, thereby
28) Arguments in favor of immunity are false       exposing them to further harm and further
    and misleading: e.g., supporters claim that    risking disclosure of our sources and methods.
    only foreign communications, not               As evidenced by the ongoing litigation, and the
    domestic, were targeted; lack of immunity      court's refusal to accept the state secrets
    will make telecoms less likely to cooperate;   assertion, the Government cannot always
    telecoms cannot defend themselves without      control the case for national security purposes.
    exposing state secrets; telecoms are already   Some Senators have claimed that the
    protected by common law principles; leaks      arguments in favor of immunity are false and
    from trial could damage national security;     misleading. Such statements reflect a startling
    and telecoms will suffer damage to             lack of knowledge about the electronic
    reputation and business. (Dodd, p. 123-        surveillance conducted by our Intelligence
    125)                                           Community and the vital role played by
                                                   providers. These points were resolved in favor
29) Retroactive immunity could prevent the         of immunity by the SSCI in its bipartisan 13-2
    courts from ruling on the TSP, one of the      bill. Our intelligence and law enforcement
    worst abuses of executive power in our         agencies rely on the willingness of providers to
    Nation's history. (Feingold, p. 115)           cooperate, including in emergencies (as with
                                                   the kidnapping of a child). Court orders are
30) If we grant immunity, we will make the         not always required for collection (e.g., 50
    same mistakes we made with the USA             U.S.C. § 1802(a), consent searches, etc.). Yet,
    PATRIOT Act. The PATRIOT Act was               some carriers already have told us that if they
    passed without sufficient time to consider     are not given liability protection, they will be
    its implications and not enough was done       unwilling to help without court orders or
    to fix it during the reauthorization period.   compulsion.
    As a result, three courts have struck down
    provisions as being unconstitutional.          The SSCI civil liability provision applies only
    (Feingold, p. 36)                              to providers. It does not apply to any
                                                   Government officials. There currently are
31) DNI Mike McConnell is becoming "an             seven cases related to the TSP that are pending
    accidental truth-teller" when it comes to      against Government officials. These cases will
    carrier liability protection. (Dodd, p. 20)    continue.

                                                   DNI McConnell has served his country
                                                   honorably in many positions. Throughout this
                                                   debate, he and other intelligence professionals
                                                   who will have to implement the law that we
                                                   pass gave unbiased advice and technical
                                                   assistance. They assisted Democrats and
                                                   Republicans in order to ensure that the
                                                   Intelligence Community has the tools it need to
                                                   protect us, including the continued cooperation
                                                   of our private partners. Attacking his integrity
                                                   to score political points is unseemly and

                                                   Provisions in the PATRIOT Act broke down
                                                   the walls between criminal and intelligence
                                                   information sharing. All but two provisions
                                                   were reauthorized permanently after an
                                                   extensive review by Congress. The three cases
                                                   in which certain provisions have been declared
                                                   unconstitutional are still pending appellate

                              V. The House RESTORE Act
               Myths                                                 Facts

32) The House RESTORE Act takes a                  The RESTORE Act's unreasonable restrictions
    balanced approach to civil liberties and       on collection and use of information would
    national security and gives the Intelligence   shut down our intelligence agencies. It
    Community "great flexibility" to conduct       requires prior court approval to target foreign
    surveillance on overseas targets. (Leahy, p.   terrorists overseas, but seeks to maintain the
    138)                                           unworkable distinction of foreign to foreign
                                                   communications--we cannot know whom a
                                                   terrorist target is calling when intercepts are
                                                   initiated. It limits the type of foreign
                                                   intelligence information that may be collected
                                                   or disseminated, to exclude any information
                                                   about the foreign affairs of the United States.
                                                   It mandates a two-year sunset and requires the
                                                   FISC to assess compliance with targeting
                                                   procedures and guidelines. It does not provide
                                                   any form of retroactive liability protection for
                                                   those providers who allegedly assisted with the
                                                   TSP. As a result, the DNI has stated that he
                                                   cannot support the RESTORE Act.

                       VI. Senate Judiciary Committee Substitute
               Myths                                                 Facts

33) The Judiciary Committee made critical          While the Judiciary Committee may have
    improvements to ensure independent             "wanted to" make sure that the Intelligence
    judicial oversight of sweeping new powers      Community has the tools it needs, the SSCI
    and to better protect innocent Americans.      actually did so. The DNI has advised that if
    (Feingold, p. 32)                              the Judiciary Committee Substitute is part of
                                                   the bill sent to the President, he will
34) The Judiciary Committee wanted to make         recommend a veto, as the "improvements" that
    sure that the bill gives the Intelligence      the Judiciary Committee made to this bill will
    Community the tools it needs, particularly     ensure that the Intelligence Community does
    with respect to foreign to foreign             not have the tools it needs to track effectively
    communications. (Cardin, p. 109)               terrorists and spies.

35) The differences between the SSCI and           The differences between the two bills have
    Judiciary bills have nothing to do with "our   everything to do with the ability to combat
    ability to combat terrorism." (Feingold, p.    terrorism. The SSCI bill was coordinated with
    111)                                           Intelligence Community experts and operators
                                                   to ensure that there were no unintended
36) The Judiciary Committee process was            consequences. The DNI has stated that he will
    better than the SSCI's as it was open and      support the SSCI bill, with amendments to two
    allowed outside experts and the public at      provisions, because it gives him the tools
    large to review and comment. (Feingold, p.     needed to combat terrorism. In contrast, the
    34, 111; Leahy, p. 137)                        opinions of Intelligence Community experts
                                                   were not factored into most of the controversial
                                                   provisions in the Judiciary bill. As a result, the
                                                   Judiciary Committee Substitute would gut our
                                                   intelligence collection capabilities.

                                                   For example, the Judiciary Committee bill
                                                   would replace the judgment of trained
                                                   intelligence analysts with that of FISC judges.
                                                   The FISC itself recognized in a published
                                                   opinion on December 11, 2007, that only the
                                                   Executive branch has the necessary expertise in
                                                   the national security arena. In addition, the
                                                   exclusivity provision in the Judiciary bill
                                                   would prohibit the use of grand jury subpoenas
                                                   and other law enforcement or intelligence tools
                                                   to obtain foreign intelligence information.
                                                   Finally, by inserting an unnecessary
                                                   prohibition against bulk collection, the
                                                   Judiciary Committee bill creates operational
                                                   and legal impediments that could shut
                                                   collection down.

                                                   As we learned from the PAA process and the
                                                   House RESTORE Act, the focus on "foreign to
                                                   foreign communications" is misplaced. It is
                                                   not always possible to tell if a communication
                                                   is going to travel from a foreign target to
                                                   another foreigner. Thus, the collection could
                                                   not begin or court orders would be required
                                                   beforehand in all instances.

                                  VII. SSCI Bill, S. 2248
               Myths                                                Facts

37) The SSCI bill's safeguards against abuse,     The SSCI bill was crafted carefully with
    against the needless targeting of ordinary    Intelligence Community experts to ensure that
    Americans, are far too weak. The bill         there were no unintended operational
    concentrates far too much power in the        consequences. Independent outside experts on
    hands of the Administration. (Dodd, p. 60)    FISA and national security were also
                                                  consulted. This bill goes farther than ever
38) Problems with the SSCI bill: redefinition of  before in providing a meaningful role for the
    electronic surveillance is unnecessary;       courts and Congress in overseeing these
    there are no consequences if the FISC         acquisitions. There are express prohibitions
    rejects the targeting/minimization            against "reverse targeting" and the targeting of
    procedures; it does not contain a "reverse    a person inside the United States without a
    targeting" prohibition; it allows warrantless court order. Americans abroad are given new
    interception of purely domestic               protections. The acquisitions must also
    communications; and it does not require an    comply with the Fourth Amendment.
    independent review of the TSP. (Kennedy,
    p. 68; Feingold, p. 112-113)                  The clarification of the definition of electronic
                                                  surveillance is necessary to ensure that the
39) Five flaws with the SSCI bill: safeguards     activities authorized are not erroneously
    against targeting Americans (its              considered electronic surveillance under Title I
    minimization procedures) are insufficient;    of FISA. The FISC will review the targeting
    fails to protect Americans from "reverse      and minimization procedures to ensure that
    targeting;" might actually allow warrantless  they comply with the law. If the FISC finds
    wiretapping of Americans to continue          deficiencies in the procedures, it can order the
    because it lacks strong exclusivity           Government to correct the deficiency or cease
    language; lacks strong protections against    the acquisition.
    bulk collection; and has a 6-year sunset.
    (Dodd, p. 87-88)                              The SSCI bill reiterates the 1978 FISA
                                                  exclusivity provision. There is nothing in this
                                                  bill that will allow the warrantless wiretapping
                                                  of Americans in violation of Title III (criminal
                                                  wiretaps) or FISA. The targeting allowed by
                                                  this bill is not dragnet surveillance--it is
                                                  targeted at foreigners outside the United States.
                                                  A 6-year, or longer, sunset is necessary to give
                                                  the Intelligence Community enough certainty
                                                  in the tools and authorities it has to track
                                                  terrorists and spies.

                          VIII. Calls Involving U.S. Citizens
              Myths                                                 Facts

40) It is essential to our freedom to require a   It is operationally impossible to require a court
    FISC order to continue surveillance when a    order any time a call involves a U.S. citizen.
    call involves U.S. citizens. (Boxer, p. 53)   For thirty years, the Intelligence Community
                                                  has used minimization procedures when
                                                  inadvertently intercepting calls to or from non-
                                                  target U.S. persons. "Minimization" means
                                                  that intercepts that have no terrorism value will
                                                  be suppressed; that is, they will not be used or
                                                  shared even with other Government agencies.
                                                  These minimization procedures have worked
                                                  well, and under this bill, they are subject to
                                                  FISC approval. Because it cannot be known in
                                                  advance whether a foreign target is going to
                                                  call, or be called by, a U.S. person, either the
                                                  surveillance cannot be done or court orders
                                                  would have to be obtained on all foreign
                                                  targets ahead of time just in case they
                                                  communicate with a U.S. person. This
                                                  requirement would shut down our intelligence

                                                  Moreover, it is unsound policy to require a
                                                  FISC order. If a terrorist target abroad calls a
                                                  United States person, that may be the most
                                                  important call to intercept to protect us from
                                                  terrorist attacks. Would the Senator really
                                                  mean that the call could not be intercepted until
                                                  a massive court filing is prepared and reviewed
                                                  by Government lawyers and operators, and
                                                  submitted to the FISC who must first review
                                                  the application and supporting documents and
                                                  then issue an order?

                        IX. Foreign Intelligence Surveillance Court
               Myths                                                 Facts

41) The FISA framework in place is enough to       The FISC was set up to issue orders for
    keep us safe. (Dodd, p. 17)                    electronic surveillance conducted on individual
                                                   targets inside the United States. It was not set
42) Regarding the suggestion to have the FISC      up to make determinations on the good faith of
    review the good faith of the carriers before   providers in cooperating with a Presidentially-
    immunity is granted: the FISC sits "24/7,      authorized warrantless surveillance program.
    and this is all they do, they would act en     It was not set up to second-guess the decisions
    banc." (Feinstein, p. 66)                      of trained analysts as to which terrorists to
                                                   track by assessing compliance with
43) The FISC was set up for the purpose of         minimization procedures. As reflected in the
    determining whether the carriers acted in      FISC's opinion of December 11, 2007, the
    good faith and it has the expertise in this    FISC judges are not experts in foreign
    area. (Cardin, p. 110)                         intelligence activities and they do not make
                                                   judgments on the need for particular
44) The FISC doesn't issue written opinions.       surveillances. Congress is in the best position
    (Cardin, p. 110)                               to review whether the carriers acted in good
                                                   faith. After a thorough review of this issue, the
45) Allowing the FISC to assess compliance is      SSCI voted overwhelmingly in favor of carrier
    necessary; otherwise, the Government's         liability protection.
    dissemination and use of information on
    innocent, law-abiding Americans will be        The FISC does not sit 24/7; rather, it is
    unchecked. (Feingold, p. 112)                  composed of U.S. District Court Judges from
                                                   throughout the country who have full caseloads
46) Re: the number of orders granted by the        in their own districts and who come to
    FISC in the past 25 years--out of 18,000       Washington, D.C., on a rotating basis to issue
    requests, only 5 have been rejected. (Dodd,    FISA orders. It would, in fact, be difficult to
    p. 133)                                        get them together to sit en banc. The FISC
                                                   regularly issues classified written orders or
47) Congress needs to obtain FISA pleadings        opinions, and it (or the FISA Court of Review)
    because it "may be critical to understanding   has published three of those opinions in its
    the reasoning behind any particular            history, including the FISC's opinion on
    interpretation as well as how the              December 11, 2007.
    Government interprets and seeks to
    implement the law." (Feingold, p. 112)         With the passage of the PAA, significant
                                                   intelligence gaps have been closed. Prior to
                                                   the PAA, the FISA framework was not
                                                   sufficient and led to the creation of those gaps.
                                                   It is misleading to imply that the TSP could
                                                   have been "rubber-stamped" by the FISC. On
                                                   the contrary, it was an adverse FISC ruling that
                                                   degraded our intelligence capabilities and led
                                                   to the passage of the PAA.

                                                   The SSCI bill has a provision that broadens
                                                   current congressional access to certain FISC
                                                   orders, opinions, and decisions. There is no
                                                   need to obtain related pleadings as the Court's
                                                   decisions adequately reflect any legal
                                                   reasoning. Requiring the pleadings,
                                                   particularly going back 5 years, will place an
                                                   unnecessary administrative burden on already
                                                   strained resources.

                               X. The Protect America Act
               Myths                                               Facts

48) The Protect America Act was negotiated in     The only secret negotiations during the PAA
    secret at the last minute. (Kennedy, p. 68)   process were those between the Democratic
                                                  leaders of the SSCI, the House Permanent
49) The PAA process was flawed and resulted       Select Committee on Intelligence, the Senate
    in flawed legislation, with few people        Judiciary Committee, the House Judiciary
    knowing what the language would actually      Committee, and the House and Senate. No
    do. (Kennedy, p. 68)                          Republicans were allowed to participate in
                                                  these negotiations, notwithstanding the
50) The PAA was rushed through the Senate in      extensive work on FISA modernization that
    an atmosphere of fear and intimidation        had been done already on a bipartisan basis by
    after the Administration "reneged on          the SSCI.
    agreements reached with congressional
    leaders." (Leahy, p. 137)                     As a result, the counterproposal to the PAA
                                                  was not even available for review until less
                                                  than one hour before the vote; conversely, the
                                                  substantive text of the PAA, as ultimately
                                                  enacted, was available one week before the
                                                  vote and was on the Senate Calendar two days
                                                  prior. The PAA did what it was intended to
                                                  do: close the intelligence gaps which
                                                  threatened the security of our country.

                                                  The DNI did not renege on any "agreements."
                                                  He consistently stated that he had to see text
                                                  before he could make any promises.

Friday, January 11, 2008

Judge Kennedy Order Refusing to Investigate CIA Tape Destruction


Article: Judge refuses to probe CIA tape destruction

Judge Kennedy is the same judge who issued the original preservation of evidence order, in June of 2005.

"... all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay ..."

That quote is from the June 2005 order. See more discussion at Patterico: Federal Judge Orders Hearing on CIA Tapes. Judge Kennedy's "clarification" appears to narrow the scope of the June 2005 order, and is very helpful to the government's case, since all parties agree that the tapes in question were not made at GTMO, i.e., the occurrence was not at GTMO.

The 2005 Order prohibits respondents from destroying evidence regarding any torture, mistreatment, or abuse of detainees that occurred at Guantánamo Bay.

     Case 1:04-cv-01254-HHK            Document 230        Filed 01/09/2008       Page 1 of 3

                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

   MAHMOAD ABDAH, et al.,


                       v.                             Civil Action 04-01254 (HHK)

   GEORGE W. BUSH, et al.,


                                 MEMORANDUM AND ORDER

       Petitioners in this action are detainees at Guantánamo Bay, Cuba, who seek a Writ of

Habeas Corpus. Before the court is petitioners' motion entitled "Emergency Motion for Inquiry

into Respondents' Compliance with Document Preservation Order" [# 219]. By this motion,

petitioners seek a judicial inquiry into whether respondents have complied with this court's

document preservation order of June 10, 2005 ("2005 Order"). Upon consideration of the

motion, the opposition thereto, the record of this case, and the oral argument of counsel at a

hearing, the court concludes that the motion should be denied.


       The document preservation order that is the subject of the instant motion, in pertinent

part, directs respondents to "preserve and maintain all evidence and information regarding the

torture, mistreatment, and abuse of detainees now at the United States Naval Base at

Guantánamo Bay, Cuba." 2005 Order 2 (emphasis supplied). Petitioners seek a judicial inquiry

into whether respondents have complied with the order following the recent revelation that in

2005 the Central Intelligence Agency ("CIA") destroyed videotapes documenting the

interrogation of two suspected Al Quaeda operatives in the CIA's custody. Petitioners assert that

     Case 1:04-cv-01254-HHK            Document 230         Filed 01/09/2008       Page 2 of 3

this revelation "raises grave concerns about the government's compliance with the preservation

order . . . [that] warrant the Court's immediate attention." Mot. 1.

       Other than the revelation itself that the CIA has destroyed videotapes documenting "harsh

interrogation[s]" 1 of persons in the custody of the CIA, petitioners offer nothing to support their

assertion that a judicial inquiry regarding this court's 2005 Order is warranted. The 2005 Order

prohibits respondents from destroying evidence regarding any torture, mistreatment, or abuse of

detainees that occurred at Guantánamo Bay. Petitioners do not assert that the destroyed tapes

depict interrogations that occurred at Guantánamo Bay and respondents have represented to the

court that the interrogations depicted on the tapes did not occur there. To the contrary, the

videotapes were recorded in their entirety in 2002 before either of the suspected Al Quaeda

operatives shown on the tapes had been at Guantánamo Bay. Further, following their capture,

neither suspect was in contact with any other detainee during the time when the tapes were made.

Therefore, petitioners' motion will be denied.2

       The court's decision to deny petitioners' motion is also influenced by the assurances of

the Department of Justice that its preliminary inquiry ­ now a criminal investigation ­ into the

             Dan Eggen & Joby Warrick, CIA Destroyed Videos Showing Interrogation,
Washington Post, Dec. 7, 2002, at A1.
                 At oral argument, counsel for petitioners asked the court to construe their motion
"as going beyond a potential violation of this protective order." Hr'g Tr. 7:13-7:15, Dec. 21,
2007. Specifically, petitioners's counsel asked the court to construe the motion as also
requesting a judicial inquiry into whether the government complied with its independent
obligation to preserve all evidence. The court declines to do so. The rules of this court require
that "each motion shall include or be accompanied by a statement of the specific points of law
and authority that support the motion, including where appropriate a concise statement of facts."
LCvR 7(a). The purpose of the rule is to ensure that the nonmovant and the court are provided
notice of what is sought and the legal basis for the motion. Any motion by either side must
comply with the rules of this court.


     Case 1:04-cv-01254-HHK            Document 230         Filed 01/09/2008       Page 3 of 3

destruction of videotapes by the CIA will include the issue of whether their destruction "was

inconsistent with or violated any legal obligations, including those arising out of civil matters

such as [this court's] Order of June 2005." Id. at 23:10-23:14. The Department of Justice also

informed the court that "if the National Security Division concludes that there was a violation of

this court's order, we would so advise the court." Id. at 25:6-25:8.

       Petitioners argue that the court should not place much stock in the assurances of the

Department of Justice. There is no reason to disregard the Department of Justice's assurances. It

is well established that, "in the absence of clear evidence to the contrary, courts presume that

[public officers] . . . properly discharge[] their official duties." United States v. Mezzanatto, 513

U.S. 196, 210 (1995) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)). In

a matter such as this, this presumption is especially warranted with respect to the newly-

appointed Attorney General and Department of Justice lawyers. Petitioners have not presented

anything to rebut this presumption. Nor have petitioners presented anything to cause this court to

question whether the Department of Justice will follow the facts wherever they may lead and live

up to the assurances it made to this court.


       For the foregoing reasons, it is this 9 th day of January, 2008, hereby

       ORDERED that Petitioners' Emergency Motion for Inquiry into Respondents'

Compliance with Document Preservation Order [# 219] is DENIED.

                                                               Henry H. Kennedy, Jr.
                                                               United States District Judge



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