Law, Policy, and 9/11

LAW, POLICY, and 9/11

President Request New Authorization for the Use of Force Against ISIS/ISL
January 8, 2015. President Obama has sent a letter to Congress formally requesting a new authorization for the Use of United States Armed Forces in connection with the Islamic State of Iraq and the Levant (ISL). Along with that letter, the President provided a draft resolution for consideration by the Congress. This comes the same week that the White House has issued the 2015 National Security Strategy document.
    Read the President's Letter to Congress Requesting for a new Authorization for the Use of Force.
    Read the Draft Resolution Offered by the President to Congress.
    Read the full 2015 National Security Strategy.
    Read the "Fact Sheet: The 2015 National Security Strategy."

One Year After the President's PPD-28 Signals Intelligence Directives -- Reports and Recommendations
February 4, 2015. A year ago, following his reactions to his own task force's recommendations, President Obama issued Presidential Policy Directive 28 which included a requirement for an Intelligence Community study under the Director of National Intelligence at the end of one year to determine next steps. A Privacy and Civil Liberties Oversight Board was also created as an independent body to observe, analyze, and comment on the work of the DNI and to inquire beyond that as needed. The DNI sought the assistance of the National Academy of Sciences to produce a one year report and then responded with the creation of a report put forward by means of a website as the 2015 Anniversary Report. The Board has reviewed the reports and DNI releases and has in turn issued its own Recommendations Assessment Report. All of those materials are provided below.
    Read the Privacy and Civil Liberties Oversight Board Recommendations Assessment Report.
    Read Read the Privacy and Civil Liberties Oversight Board Recommendations Assessment Report Fact Sheet.
    Read Director National Intelligence "Signals Intelligence Reform: 2015 Anniversay Report."
    Read Presidential Policy Directive PPD-28 Signals Intelligence.
    Read Director of National Intelligence Press Release on the National Academy Report.
    Download the National Academy of Sciences Report (Requires Login on free account).
    Read the National Academy of Sciences Report Online.
    Access the Privacy and Civil Liberties Oversight Board Website.

Senate Intelligence Committee Releases Report on CIA Interrogation Tacts After 9/11 and CIA Responds
December 9, 2014. The Senate Intelligence Committee has released its long awaited report on the conduct of CIA interrogations in the years following the 9/11 attacks. There is also a minority report as well as a CIA response. What has been released to this point is a declassified Findings, Conclusions, and Executive Summary. Other members of the committee have filed addition views. There is a minority report.
   The CIA Director, John O. Brennan, has issued a "Statement on the SSCI Study on the Former Detention" and Interrogation Program. Along with this statement, the CIA has issued what it terms the "CIA Fact Sheet on the SSCI Report" as well as a document produced in June 2013 entitled "CIA Comments on the Senate Select Committee on Intelligence Report on the Rendition,Detention,and Interrogation Program" not disclosed until now.
   The SSCI report and Senator Feinstein's presentation of the findings on the Senate floor referred to the CIA Inspector General report on the program issued in 2004. The Bush administration issued a redacted version of the report, but the Obama administration reissued it in 2009 with more material. That report entitled "Counterterrorism Detention and Interrogation Activities (September 2001 - October 2003)" is posted below as well.
    Read the Report Findings, Conclusions and Executive Summary.
    Read Additional Views Offered by Members of the Committee.
    Read the Minority Report.
    Read the President's Statement on Release of the Senate Report.
    Read CIA Direct Brennan's Statement in Response to the Report.
    Read the CIA Fact Sheet on the SSCI Report.
    Read the June 27, 2013 CIA Comments on the Senate Select Committee on Intelligence Report on the Rendition,Detention,and Interrogation Program.
    Read the CIO Office of Inspector General's May 2004 report.

Justice Department Memorandum Supporting Drone Strike on Anwar al-Awlaki Release
June 24, 2014. A panel of the U.S. Court of Appeals for the Second Circuit has released the Justice Department memorandum issued July 20, 2010 entitled "Applicability of Federal Criminal Laws and Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaki" that provided legal support for the administration's drone strike against al-Awlaki in Yemen. This was not an opinion about the lawfulness of the strike, but an appeal in which the New York Times, reporters, and the American Civil Liberties Union contested a lower court decision denying their Freedom of Information Act request for release of the memorandum. The Second Circuit published a redacted version of the memorandum as an appendix to its opinion.
Read the opinion with the Justice Department Memorandum in Appendix.

Federal Government Releases Foreign Intelligence Surveillance Court Opinions
August 22, 2013. The Director National Intelligence at the request of the president has released a number of opinions issued by the Foreign Intelligence Surveillance Court that have been redacted and cleared for public release. The most controversial of these so far is an opinion issued on October 3, 2011 holding one of the programs to be a violation of the Constitution with sharp criticism by the author of the opinion, Judge John D. Bates.
   Read the October 2011 opinion.
   Access the ACLU FISA Court Documents Page for Released Opinions by Topic.
   Access the DNI Press Release and .
   Read the FISA Court Public Filings.

Federal District Court Rejects Airline Efforts to Block 9/11 Litigation
September 5, 2012. Federal District Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York has rejected efforts by the parent companies of American and United Airlines to block litigation. In this piece of a larger set of litigation that continues to flow from the attacks on September 11, 2001, known as In re Sept 11 Litigation, the airlines asked the court to find that World Trade Center Properties, LLC, should not be able to proceed with negligence claims against the airlines because they had already been compensated over $4 billion by insurance companies for the attack just over a year after the company had purchased the lease on the World Trade Center for $2.8 billion. The judge found that whether they had been fully compensated is a matter of fact that must be determined at trial and have moved the case forward for trial.
   The Southern District of New York has a site with information on continuing cases from the 9/11 attacks.
   Read Judge Hellerstein's opinion.
   Access the 9/11 Litigation Site of the U.S. District Court for the Southern District of New York.

CDC Announces Plan to Expand Coverage of Some Cancers for 9/11 World Trade Center Cleanup Workers
June 12, 2012. Dr. John Howard, Administrator of the World Trade Center Health Program Scientific and Technical Advisory Committee (WTC-STAC) has announced a proposal that will call for coverage of come cancers in workers at the World Trade Center 9/11 site in New York City as related health conditions under Title I of the James Zadroga 9/11 Health and Compensation Act of 2010, P.L. 111-347. The notice of proposed rulemaking is scheduled to appear in the Federal Register on June 13, but the pre-publication version is available. Publication will be followed by a very brief 30 day comment period.
Read the Statement Issued by Administrator John Howard.
Access the pre-publication .pdf version of the notice of proposed rulemaking which is scheduled to appear in the Federal Register June 13 to begin a comment period.

White House Announces Signing of the "Enduring Strategic Partnership Agreement between the Islamic Republic of Afghanistan and the United States of America"
May 15, 2012. The Enduring Strategic Partnership Agreement between the Islamic Republic of Afghanistan and the United States of America has been announced in the lead up to the NATO conference in Chicago which takes place May 20-21, 2012. The White House has announced that this is a "legally binding executive agreement, undertaken between two sovereign nations." (See Fact Sheet below) That is, it is not a treaty that requires Senate advice and consent. It is a complex agreement with multiple commitments. The NATO conference will address the impending U.S. draw down of forces in Afghanistan as one of its key issues.
   Read the Enduring Strategic Partnership Agreement.
   Access the White House "Fact Sheet" on the agreement.
   Access the NATO Chicago conference website.

District Court Rejects Suit to Block Targeted Attack on alleged al Qaeda Operative
December 7, 2010. U.S. District Court Judge John D. Bates has issued an opinion dismissing a suit brought by the father of Anwar Al-Aulaqi, an alleged al Qaeda operative with al Qaeda in the Arabian Peninsula, asserting that the president and U.S. intelligence organizations had targeted the son for assassination and seeking a judicial order to block those plans. Judge Bates denied the father standing to sue on his son's behalf, found no cause of action, and determined that the case presented nonjusticiable political questions.
Read the opinion.

Center for Strategic and International Security Report Finds Human Capital Crisis in Cybersecurity
July 20, 2010. The Center for Strategic and International Studies (CSIA) has released a white paper entitled Human Capital Crisis in Cybersecurity that: "We not only have a shortage of the highly technically skilled people required to operate and support systems already deployed, but also an even more desperate shortage of people who can design secure systems, write safe computer code, and create the ever more sophisticated tools needed to prevent, detect, mitigate and reconsitute from damage due to system failures and malicious acts." p. 2.
Access the pre-publication version of this white paper (July 16, 2010).

Supreme Court Upholds Material Support to Terrorist Groups Statute as Applied to One Group, but Refuses to Rule a Wider Challenge to the Law
June 21, 2010. Writing for the majority in Holder v. Humanitarian Law Project, Chief Justice Roberts rejected the claim that the "Material Support" provisions of the Antiterrorism and Effective Death Penalty Act of 1996 were vague in violation of the Fifth Amendment or violated the First Amendment speech or association rights of the group that brought the challenge. The case was brought by an organization that has sought to teach nonviolent and lawful advocacy skills to groups that had been using armed conflict in order to bring them back from conflict to orderly and lawful political and legal activity. These activities would, according to all parties, place the organization in jeopardy of prosecution under the statute. The Court rejected the challenge. However, Chief Justice Roberts added: "All this is not to say that any future applications of the material-support statute to speech or advocacy will survive First Amendment scrutiny. It is also not to say that any other statute relating to speech and terrorism would satisfy the First Amendment. In particular, we in no way suggest that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations. We also do not suggest that Congress could extend the same prohibitions on material support at issue here to domestic organizations. We simply hold that, in prohibiting the particular forms of support that plaintiffs seek to provide to foreign terrorist groups, Section 2339B does not violate the freedom of speech. . . . We hold that, in regulating the particular forms of support that plaintiffs seek to provide to foreign terrorist organizations, Congress has pursued that objective consistent with the limitations of the First and Fifth Amendments." Slip opinion at 34-36.
   Justice Breyer wrote a dissent joined by Justice Ginsberg and Sotomayor. He concluded: "In sum, these cases require us to consider how to apply the First Amendment where national security interests are at stake. When deciding such cases, courts are aware and must respect the fact that the Constitution entrusts to the Executive and Legislative Branches the power to provide for the national definse, and that it grants particular authority to the President in matters of foreign affairs. Nonetheless, this Court has also made clear that authority and expertise in these matters to not automatically trump the Court's own obligation to secure the protection that the Constitution grants to individuals. . . . Cf. Hamdi v. Rumsfeld . . . ('We have long since made clear that a state of war is not a blank check . . . when it comes to the rights of th[is] Nation's citizens.'). . . I believe the Court has failed to examine the Government's justifications with sufficient care. It has failed to insist upon specific evidence, rather than general assertion. It has failed to require tailoring of means to fit compelling ends. And ultimately it deprives the individuals before us of the protection the First Amendment demands." Breyer dissent slip opinion at 23.
    One interesting side note in the case is that a brief was submitted by a group of victims of the McCarthy era. It is posted below along with the other materials in the case.
   Access the Holder v. Humanitarian Law Project Opinion.
   Read the Brief for the Attorney General.
   Read the Brief for the Humanitarian Law Project.
   Access the Amicus Brief of Victims of the McCarthy Era.
   Read the Supreme Court Oral Argument Transcript.
   Read the Ninth Circuit ruling in the case.

USA Patriot Act Reauthorization Adopted
April 6, 2010. The USA Patriot Act was reauthorized in P.L. 111-141, 124 Stat. 37, signed into law February .
Access P.S. 111-141.

President Issues Memorandum to Acquire Illinois Prison for Guantanmo Detainees
January 10, 2010. The president has issed a presidential memorandum, directing the Attorney General to acquire the Thomson Correctional Center, currently an Illinois state prison, for use as a federal facility. It also directs the Secretary of Defense to transfer Guantanamo Bay detainees to that facilitiy in accordance with the review required by Executive Order 13492 issued immediately after he took office on January 22, 2009.
Access the Presidential Memorandum.
Read Executive Order13492.

Department of Justice Releases Another Round of Documents on Interrogation of Detainees in ACLU suit.
December 23, 2009. Once again, the American Civil Liberties Union has posted a variety of documents released as a result of its FOIA suit against the government on interrogations.
   Access the ACLU Website on Torture Documents.
   Access Released Documents Batch 1 (DOJOIG 006935 - DOJOIG 006978).
   Access Released Documents Batch 2 (DOJOIG 006979 - DOJOIG 007014).
   Access Released Documents Batch 3 (DOJOIG 007015 - DOJOIG 007078).
   Access Released Documents Batch 4 (DOJOIG 007079 - DOJOIG 007131).
   Access Released Documents Batch 5 (DOJOIG 007132 - DOJOIG 007190).
   Access Released Documents Batch 6 (DOJOIG 007191 - DOJOIG 007241).
   Access OLC White House Situation Routing Sheet regarding Detainee Policy Draft 13 (5/23/2006).
   Access OLC Memo from John Yoo and Robert Delahunty regarding Treaties and Laws Applicable to Captured Persons (11/31/2001)
   Response to the Preliminary Report of tbe ABA Task Force on Treatment of Enemy Combatants (1/26/2002).
   Access OLC Partial Index of OLC Advice 2 (12/12/2007).
   Access OLC Partial Index of OLC Advice 3 (12/12/2007).
   Access OLC Partial Index of OLC Advice 4 (12/12/2007).
   Access OLC Index of OLC Advice (12/12/2007).
   Access OLC Partial Index of OLC Advice (12/12/2007).
   Access OLC Index of OLC Memos Relating to the Fourth Geneva Convention (July-October 2004) (6/23/2004).
   Access OLC Index of DOJ Advice on Interrogation (2/15/2008).
   Access OLC Index of DOJ Legal Opinions (May 2005).
   Access OLC Inventory of DOJ Advice on Interrogation (10/12/2007).
   Access DOJ Advice on Interrogation (12/12/2007).
   Access OLC Letter from Steven Bradbury to CIA regarding Legality of Detainee Interrogation (7/24/2007 ).
   Access OLC Inventory of OLC Advice on Interrogation (10/2/2007).
   Access OLC National Security Council Fax Cover Sheet (8/14/2006) .
   Access OLC Steven G.Bradbury Testimony before the Senate Select Committee on Intelligence's Classified Hearing on CIA Dentention and Interrogation Program (4/12/2007).
   Access OLC Letter from Steven Bradbury to William Haynes regarding Army Field Manual (4/12/2006).
   Access OLC Routing Slip to Jeff Taylor and Steven Bradbury (5/23/2006).
   Access OLC Fax from Steven Bradbury to John Rizzo, CIA, regarding Q&A for Hearing (6/1/2006).
   Access OLC Memo from Howard Nielson regarding "Protected Persons" (8/5/2005).
   Access OLC National Security Council Fax to Alberto Gonazles Cover Sheet (11/21/2005).
   Access OLC Letter from Jack Goldsmith to Scott Muller regarding "Protected Person" (6/23/2004).
   Access OLC Letter from Steven Bradbury to CIA (5/20/2005).
   Access OLC Letter from Jack Goldsmith to Scott Muller regarding "Protected Person" (6/23/2004).
   Access OLC Memo from Jay Bybee regarding Applicability of Geneva Conventions (1/26/2002).
   Access OLC Memo from John Yoo regarding John Walker Criminal Charges (12/12/2001).
   Access OLC DOJ Office of Legal Counsel Opinions for 2003 (3/11/2004).
   Access OLC Classified DOJ Legal Advice Regarding the CIA's Interrogation Program (4/29/2008).
   Access DOD Memo from Donald Rumsfeld regarding Detention Metrics (7/27/2005).
   Access DOD Memo from Paul Wolfowitz to Alberto Gonazles regarding Public Affairs Briefing on Detainee Policy (2/18/2004 ).
   Access DOD Detainee Assessment Matrix (List of Guantanamo Detainees) (3/8/2007).
   Access DOD Memo regarding Call for Closure of Guantánamo Bay Detention Facility (9/4/2008).

Senate Foreign Affairs Staff Report on Effort to Find Osama bin Laden
November 29, 2009. A Senate Foreign Affairs majority staff report addresses the failure to find Osama bin Laden in the Tora Bora mountains in following the U.S. attack on the Taliban regime in Afghanistan.
Access the Report.

Joint Inspector Generals' Report on Surveillance Program Released
July 10, 2009. The Inspectors General from the Department of Justice, DOD, CIA, NSA and the Office of the Director of National Intelligence have issued an unclassified report on what became known as the President's Surveillance Program (PSP) .
Access the Report.

Ninth Circuit Rejects State Secrets Claim by U.S. in CIA Extraordinary Rendition Case
April 29, 2009. The United States Court of Appeals for the Ninth Circuit has rejected an attempt by the government to use the state secrets doctrine to block litigation in the case of Mohamed v. Jeppesen Dataplan Inc.. The plaintiffs all complain that they were placed in the extraordinary rendition program and were tortured while in that program and allege other violations of their rights. Jeppesen is a wholly owned subsidiary of Boeing.
Access the opinion.

The Report of the Commission on the Prevention of Weapons of Mass Destruction Proliferation and Terrorism Issues Report
December 3, 2008. The Commission on the Prevention of Weapons of Mass Destruction Proliferation and Terrorism has issued its report entitled World at Risk. That report has been posted on the Homeland Security Digital Library page of operated by the Naval Postgraduate School Center for Homeland Defense and Security.
Access the website with the report posting.

DOJ Inspector General Reports on Gonzales' Mishandling of Classified Document
September 2, 2008. The Department of Justice Inspector General has issued a report on allegations of mishandling of classified documents by former Attorney General Alberto Gonzales. The investigation began with particular focus on materials associated with the controversial NSA intelligence program, but later included some other documents as well.
Access the Office of Inspector General Report.

Congress Passes FISA Amendments
July 10, 2008. The Congress has adopted and sent to the president H.R. 6304, the FISA Amendments Act of 2008. The president had announced his support for the legislation and has signed it into law. This controversial legislation amends the Foreign Intelligence Surveillance Act and takes into consideration such matters as retroactive immunity for telecommunications firms that had provided information to the government on the assurances by the administration that doing so was both necessary and lawful.
Access the H.R. 6304.

Director of National Intelligence Issues Reports to Address Classification Problems and Information Sharing Issues
April 12, 2008. The Office of the Director of National Intelligence has released a report issued in January on problems in classification inconsistencies entitled Intelligence Community CLassification Guidance Findings and Recommendations Report. This report was made available in an unclassified form this week, while on April 4, the DNI published a separate report entitled United States Intelligence Community Information Sharing Strategy.
Access the Classification Study via the Federation of American Scientists website.
Access the Information Sharing Strategy

Another of the Yoo Memoranda Supporting Broad Executive Branch Power to Use Interrogation Techniques Released
April 4, 2008. During the debates that led to passage of the Detainee Protection Act, it became clear that the Office of Legal Counsel in the Department of Justice had prepared a number of memoranda rejecting concerns that detainees at Guantanamo had constitutional and other legal protections and supporting the use of a wide range of interrogation techniques that raised serious questions as to whether they would be considered torture. Another memorandum was declassified and released this week in connection with a suit filed by the American Civil Liberties Union. It is a March 14, 2003 memorandum from John Yoo to William J. Haynes, II, then Defense Department General Counsel. Yoo summarized his conclusions as follows: "In Part I, we conclude that the Fifith and Eighth Amendmnets, as interpreted by the Supreme Court, do not extend to alien enemy combatants held abroad. In Part II, we examine the federal criminal law. We explain that several canons of construction apply here. Those canons of construction indicate that federal criminal laws of general applicability do not apply to properly authorized interrogations of enemy combatants, undertaken by military personnel in the course of an armed conflict. Such criminal statutes, if there were misconstrued to apply to the interrogation of enemy combatants, would conflict with the Constitution's grant of the Commander in Chief power solely to the President." John C. Yoo, Deputy Assistant Attorney General, Memorandum for William J. Haynes, II, General Counsel of the Department of Defense, March 14, 2003, p. 1 [This is a very large file and one may wish to download the file and then open it.]
Access the Yoo Memorandum.

Report for Joint Forces Command Finds No Direct Saddam Hussein Connections to al Qaeda
March 18, 2008. A report prepared under contract for the Joint Forces Command by the Institute for Defense Analyses found connections between Saddam Hussein's government and a various of terrorist organizations, but not al Qaeda. This report, entitled Iraq Perspectives Report -- Saddam and Terrorism: Emerging Insights from Captured Iraqi Documents, Volume 1 (January 2007), found no "smoking gun" (i.e. direct connection) between Saddam's Iraq and al Qaeda." (ES-2) A redacted version of the report has been made available through the ABC News website. (This is a very large file and one may wish to download the file and then open it.)
Access the Report.

President Vetoes Bill Limiting Interrogation Methods
March 12, 2008. On March 8, President Bush vetoes H.R. 2082, the Intelligence Authorization Act for FY 2008. The veto message objects to variety of provisions of the bill, but the one that has drawn most attention is a set of constraints on interrogation techniques by the CIA. The president said: "My disagreement over section 327 is not over any particular interrogation technique; for instance, it is not over waterboarding, which is not part of the current CIA program. Rather, my concern is the need to maintain a separate CIA program that will shield from disclosure to al Qaeda and other terrorists the interrogation techniques they may face upon capture. In accordance with a clear purpose of the "Military Commissions Act of 2006," my veto is intended to allow the continuation of a separate and classified CIA interrogation program that the Department of Justice has determined is lawful and that operates according to rules distinct from the more general rules applicable to the Department of Defense." The Congress failed in an override attempt of this veto.
Read the president's veto message.
Read H.R. 2082.

Director of National Intelligence Issues the Annual Threat Assessment
February 7, 2008. Director of National Intelligence J. Michael McConnell has delivered his annual threat assessment to the U.S. Senate Select Committee on Intilligence.
Read the Annual Threat Assessment.

9/11 Commission Staff Memorandum Asserts that CIA Refused to Disclose Interrogation Tapes
December 23, 2007. The December 13 memorandum prepared by Philip Zelikow, who had been the 9/11 Commission Executive Director, for the CoChairs of the 9/11 Commission. The memorandum was prepared in reponse to the information that the CIA had made and later destroyed tapes of interrogation of those thought to have knowledge of terrorist activities. "The Commission made broad initial requests for intelligence information from interrogations, specifically including Zubaydah and Nashiri. After evaluating the responses, the Commission followed up with repeated requests for very detailed information about the context of these interrogations, the character of the questioning, the credibility of the statements elicited, the assessments of the interrogators, the quality of the language interpretation, and other matters. The Commission was dissatisfied with the answers it received to these questions. It even sought (unsuccessfully) to question detainees or their interrogators directly in order to get better answers." The Zelikow memorandum was published by the International Herald Tribune.
Access Zelikow Memorandum via the International Heral Tribune.

Justice Department Attempts to Explain Failure to Turn Over Interrogation Tapes to Federal Courts
December 8, 2007. The New York Times has published a letter dated October 25, 2007 from the Justice Department to the U.S. District Court for the Eastern District of Virginia and to the U.S. Court of Appeals for the Fourth Circuit attempting to explain that previous representations by the CIA that "two ex parte declarations previously submitted by the Central Intelligence Agency (CIA) in this case contain factual errors concerning whether interrogations of certain enemy combatants were audio or video recorded." Chuck Rosenberg, United States Attorney for the Eastern District of Virginia, to Hon. Karen J. Williams and Hon. Leonie M. Brinkema, October 25, 2007, p. 1. The issue arose in connection with the case of United States v. Zacarias Moussaoui. In 2003 and again in 2005, the letter states, the CIA indicated that there were no such materials. The U.S. Attorney asserted in his October 25 letter that there was no damage to to the case as a result of the erroneous submission by the CIA. The letter goes on to indicate that the U.S. Attorney had learned in September and October of this year that there were two video tapes and one audio tape and then viewed the tapes. As a result, they determined that they had no relevance to the Moussaoui case. This disclosure comes just at the time of the annoucement by the CIA that two interrogation tapes had been destroyed in 2005.
Access the U.S. Attorney letter via the New York TImes website.
Access the CIA Director's statement on destruction of tapes.

Additional Accusations Added to Iraqi Suit Against Blackwater in U.S. Federal District Court
November 28, 2007. The parties that launched a civil suit against Blackwater USA in federal district court in October have added additional allegations concerned with the performance of the company and its employees which the plaintiffs charge contributed to the deaths in the Nasoor Square incident in Baghdad on September 16, 2007. The case was brought on behalf of those injured and the estates of some killed in the event in the U.S. District Court for the District of Columbia against Blackwater USA, the Prince Group, and Erik Prince, alleging war crimes and extrajudicial killing under the Alien Tort statute. The plaintiffs also allege assault and battery, wrongful death, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligent hiring, training, and supervision. The amended complaint asserts that those Blackwater employees involved violated orders and should not have been at the site of the shooting. It also alleges that a significant number of its employees were using "steroids or other judgment-altering substances," but contends that the firm did not take steps to test for or to stop such behavior. The complaint seeks both compensatory and punitive damages. Blackwater rejects the allegations and has mounted a vigorous defense against the suit and in congressional investigations associated with the allegations. The case, Atban v. Blackwater USA, has been assigned to Judge Reggie B. Walton.
   . Read the amended complaint.
   . Read the original complaint.
   . See the Blackwater responses to criticisms.

GAO Issues Report on Implementation of SAFE Ports Act
October 16, 2007. A year after its enactment, the Government Accountability Office has issued a report on the implementation to date of the SAFE Ports Act. The report examines a number of challenges to implementation by a variety of agencies to the extremely ambitious legislation adopted in the fall of 2006.
. Read the GAO Report.

District Court Strikes Provisions of Patriot Act
September 27, 2007. Judge Ann Aiken of the United States District Court for the District of Oregon has found two provisions of the USA Patriot Act in violation of the Fourth Amendment to the United States Constitution. The ruling came in a suit brought by Portland attorney Brandon Mayfield following the settlement of an earlier action in which he had been arrested on alleged connection to a terrorist attack in Madrid in which the FBI had later admitted that it had mistakenly identified Mayfield as a suspect when he clearly was innocent. Aiken concluded: "For over 200 years, this Nation has adhered to the rule of law -- with unparalleled success. A shift to a Nation based on extra-constitutional authority is prohibited, as well as illadvised. . . . Therefore, I conclude that 50 U.S.C. 1804 and 1823 [of the Foreign Intelligence Surveillance Act], as amended by the Patriot Act, are unconstitutional because they violate the Fourth Amendment of the United States Constitution." Mayfield v. United States, Slip opinion at 43-44.
. Read the Mayfield v. United States opinion and order.

U.S. District Court Judge Rules Portion of the Patriot Act Unconstitutional
September 6, 2007. United States District Judge Victor Marrero has ruled the national security letter provision of the USA Patriot Act unconstitutional on grounds that it violates the First Amendment and the separation of powers. He wrote: "[T] Court concludes that 2709(c) is unconstitutional under the First Amendment because it functions as a licensing scheme that does not afford adequate procedural safeguards, and because it is not a sufficiently narrowly tailored restriction on protected speech. . . . §2709(c) is unconstitutional under the First Amendment because it functions as a licensing scheme that does not afford adequate procedural safeguards, and because it is not a sufficiently narrowly tailored restriction on protected speech. . . . Additionally, the Court concludes that §3511(b) is unconstitutional under the First Amendment and the doctrine of separation of powers." Doe v. Gonzales, Slip Opinion, at 101. Given the importance of the opinion, Judge Marrero stayed his judgment for 90 days to permit the government time to consider an appeal.
. Read the Doe v. Gonzales opinion and order.

CIA Releases Executive Summary of a CIA Inspector General Report Criticizes the CIA Preparations Ahead of 9/11 Attacks
August 21, 2007. The CIA has released an unclassified portion of the executive summary from the Inspector General's report Accountability with Respect to the 9/11 Attacks. While the report found no violations of law, it concluded that "the Agency and its officers did not discharge their responsibilities in a satisfactory manner." (p.2) Congress had been calling for the agency to declassify and release the report.
. Read the Executive Summary

FISA Court Requires Bush Administration to Respond to ACLU Motion to Disclose January FISA Order
August 18, 2007. Judge Colleen Kollar-Kotelly, Presiding Judge of the Foreign Intelligence Surveillance (FISA) Court, has issued an order to the Bush administration to respond by the end of August to a motion filed by the American Civil Liberties Union (ACLU) calling on the court to release its January 10 order with respect to surveillance activities by the administration and any subsequent related FISA court orders. The ACLU filed the motion following disclosure by members of Congress and the administration that the FISA court had issued a ruling that the administration said meant that there was an immediate need for legislation to amend the Foreign Intelligence Surveillance Act in order to allow necessary surveillance actions. That led to the passage of Public Law 110-55 (see item below) which provided expanded authority but with a time limit of six months. The ACLU motion, which is unprecedented in the history of that court, argues that the public needs to know about the order and the Congress needs to be able to discuss it in the process of considering whether to renew the recently enacted authority for electronic surveillance.
. Access the FISA Court order to reply.
. Access ACLU motion for release of orders.

Congress Passes and President Signs S. 1927 "Known as the Protect America Act"
August 6, 2007. President Bush has signed S. 1927 entitled the Protect America Act, Public Law 110-55, expanding federal electonic surveillance authority.
. Read S. 1927.

Administration Loses State Secrets Case
July 21, 2007. In a case not involving Guantanamo or the NSA debate, the U.S. Circuit Court of Appeals has issued an opinion rejecting an effort by the administration to stop the litigation using the state secrets privilege. While the district court had allowed the use of the privilege to block the case, the appeals court reversed. This case was actually decided on June 29, but it was only unsealed on July 20.
. Read In re Sealed case.

Fourth Circuit Rejects Claims to Executive Power to Order Unlimited Military Detention of Civilians in the U.S. by Directive to the Military
June 11, 2007. A U.S. Circuit Court of Appeals for the Fourth Circuit panel has issued a strongly worded opinion, rejecting the claimed authority by the executive to order military detention of a civilian on the president's determination that that person is a terrorist threat. In Al-Marri v. Wright, No. 06-7427, Judge Diana Gribbon Motz, wrote for two members of the panel (one member dissented) that: "To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them "enemy combatants," would have disastrous consequences for the Constitution -- and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power -- were a court to recognize it -- that could lead all our laws "to go unexecuted, and the government itself to go to pieces." We refuse to recognize a claim to power that would so alter the constitutional foundation of our Republic." Slip Opinion, at 76-77.
Read the Fourth Circuit Opinion

Inspector General Issues Report Critical of Justice Department Use of Security Letters
March 15, 2007. The Department of Justice Inspector General has issued a report critical of the use of security letters by the department. (NOTE: This report is a very large file. One may wish to save the file and then open it off line.)
Read the DOJ Inspector General Report.

Supreme Court of Canada Strikes Detentions Under Security Letter Process
February 24, 2007. The Surpeme Court of Canada has struck down the existing process under which persons can be held for extended periods without trial under what is known as a "security letter" where the person detained is found to be a threat to national security. The security letter process provides for a review by a Federal court, but the Supreme Court concluded that the restrictions on information and other procedural matters render that check inadequate to present fundamental justice under the Canadian Charter of Rights and Freedoms. The Court found in Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 (2007) that: "Here, the IRPA scheme includes a hearing and meets the requirement of independence and impartiality, but the secrecy required by the scheme denies the person named in a certificate the opportunity to know the case put against him or her, and hence to challenge the government's case. This, in turn, undermines the judge's ability to come to a decision based on all the relevant facts and law. The judges of the Federal Court, who are required under the IRPA to conduct a searching examination of the reasonableness of the certificate, in an independent and judicial fashion and on the material placed before them, do not possess the full and independent powers to gather evidence that exist in an inquisitorial process. At the same time, the person named in a certificate is not given the disclosure and the right to participate in the proceedings that characterize the adversarial process. The result is a concern that the judge, despite his or her best efforts to get all the relevant evidence, may be obliged, perhaps unknowingly, to make the required decision based on only part of the relevant evidence. Similar concerns arise with respect to the requirement that the decision be based on the law. Without knowledge of the information put against him or her, the person named in a certificate may not be in a position to raise legal objections relating to the evidence, or to develop legal arguments based on the evidence. If s. 7 is to be satisfied, either the person must be given the necessary information, or a substantial substitute for that information must be found. The IRPA provides neither." Section 7 of the Charter provides that: " Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."
    For those unfamiliar with the Canadian Charter of Rights and Freedoms, a link in provided below to that document as well as the Government of Canada's brief "Guide to the Canadian Charter of Rights and Freedoms."
    Read the Charkaoui v. Canada (Citizenship and Immigration) opinion.
    Read the Canadian Charter of Rights and Freedoms.
    Read the "Guide to Canadian Charter of Rights and Freedoms."

Rules Issued for Trials to be Conducted by Military Commission
January 18, 2007. The Washington Post today provided online links to the manual governing the rules for trials to be conducted by Military Commissions.
   Read the Preamble.
   Read Part II: Rules for Military Commissions.
   Read Part III: Military Commission Rules of Evidence.
   Read Part IV: Crimes and Elements

Intelligence Science Board Issues Report on Interrogation Techniques
Janaury 16, 2007. The Federation of American Scientists website has provided a link to the report issued by the Intelligence Science Board in December entitled, Educing Information: Interrogation: Science and Art: Foundations for the Future. The report is a collection of essays on what is known about the effectiveness of interrogation techniques. The board provides analysis to the Office of the Director of National Intelligence.
Read the Phase I Report. This is a large file and readers may wish to download the file before opening.

President Signs Military Commissions Act of 2006
October 17, 2006. The president has signed the Military Commissions Act of 2006, S. 3930, into law as Public Law 109-366. While the signing was done in a nationally televised event, the White House has not yet published the technical signing statement that is expected to accompany the legislation. The citation to it will be provided on this site once it is available.
Access the Military Commissions Act.

SAFE Ports Act Becomes Law
October 14,2006. The Security and Accountability for Every Port Act of 2006 (SAFE Ports Act) became law yesterday when the President sign H.R.4954 into law. The legislation, which has been developed over a considerable period, also included an amendment which is now Title VIII of the law entitled the Unlawful Internet Gambling Enforcement Act. This amendment used the importance of the port safety act as a vehicle in an attempt to outlaw the large and growing international enterprise of Internet gambling. As he signed the legislation, the president again issued a signing statement indicating that the administration would interpret and implement some of the provisions as the president considered it appropriate rather than according to the requirements of the statute.
Read the SAFE Ports Act.
Access the Presidential Signing Statement on the SAFE Ports Act.

White House Releases Declassified Portion of Controversial National Intelligence Estimate
September 27, 2006. The Bush administration has declassified and released through the website of the Office of the Director of National Intelligence a portion of an April 2006 National Security edtimate. Portions of the document were leaked to the New York Times recently, setting off debate over both the Iraq policy, but also the leak and publication of the material. The document is entitled "Key Judgments of the National Intelligence Estimate. Trends in Global Terrorism: Implications for the United States, dated April 2006."
Access the Key Judgments of the NIE document.

UN Assistance Missision Iraq Human Rights Office Issues July-August 2006 Report Highlighting Significant Rise in Sectarian Violence
September 20, 2006. The Human Rights Office of the United Nations Assistance Mission in Iraq (UNAMI) has issued its most recent report on human rights issues in Iraq, covering July and August 2006. The report details a serious increase in sectarian killings, many involving torture during this period. See the Sustainable Development page for the links to the report.

Canadian Commission on Inquiry Issues Its Report in the Arar Case
September 19, 2006. The Canadian Commission of Inquiry into the Maher Arar case, involving a Canadian Citizen detained by U.S. authorities in New York and sent to Syria where he was tortured, had reported to the Parliament, clearing Arar of any connection to terrorist groups or activities and criticizing Canadian, U.S., and Syrian authorities for the suffering Arar endured and calling for restitution. This case provides the first formal finding in a case of what has come to be known as extraordinary rendition under which individuals have been allegedly sent to other countries to be interrogated in conditions that would not be permitted in the U.S. The U.S. Attorney General takes the position that Ara was simply deported. There are three volumes to the report. The first volume consists of analysis and recommendations, while the remaining two volumes detail the factual findings.
   Access the Analysis and Recommendations Volume.
   Access Volume I.
   Access Volume II.

Former Secretary of State Colin Powell Joins Senators Opposing Proposed Changes in Detainee Protection and Interrogations Boundaries
September 14, 2006. Former Secretary of State Colin Powell has written Senator John McCain (R.AZ), opposing the White House proposal to relax contraints in existing law on interrogations. That legislation is currently pending, but is the subject of debate with Senators McCain, Graham, and Warner considering alternatives to the White House proposal.
Access the Powell letter via the Washington Post.

Senate Intelligence Committee Releases Iraq Phase II Reports
September 10, 2006. The Senate Inlelligence Committee has issued two reports that address issues of concern with respect to Iraq. The first is the Postwar Findings About Iraq's WMD Programs and Links to Trrorism and How They Compare with Prewar Assessments. The second is entitled The Use by the Intelligence Community of Information Provided by the Iraqi National Congress.
Access the report on Postwar Findings About Iraq's WMD Programs and Links to Trrorism.
Access the report on Use by the Intelligence Community of Information Provided by the Iraqi National Congress.

White House Releases New "National Strategy for Combatting Terrorism"
September 5, 2006. The Bush administration has issued a new plan for pursuing the battle against terrorism. The report, entitled New Strategy for Combatting Terrorism is a replacement for the document issued in February 2003.
Access the National Strategy document.

Federal District Court Strikes NSA Surveillance Program
August 17, 2006. Federal District Court Anna Diggs Taylor ruled against the NSA domestic surveillance program and issued a permanent injunction. She wrote: " The Permanent Injunection of the TSP requested by Plaintiff is granted. . . . The irreparable injury necessary to warrant injunctive relief is clear, as the First and Fourteenth Amendment rights of Plaintiffs are violated by the TSP. . . . The irreparable injury conversely sustainabed by Defendants under this injunction may be rectified by compliance with our Constitutuon and/or statutory law. . . . Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution." Slip opinion at 43.
Access the ACLU v. NSA memorandum opinion.
Read the ACLU v. NSA Judgment and Permanent Injunction Order.

House Government Reform Committee Studies Criticizes Homeland Security Department for Contract Shortcomings
July 27, 2006. The House Government Reform Committee has issued a report highly critical of contracting practices in the Department of Homeland Security (DHS). The report found that no-bid contracts had increased by 739% between 2003 and 2005 and identified $34.3 billion of contracts that presented serious difficulties. For more information see the Public Contract Management webpage on this site.

Federal District Court Rejects Efforts to Block NSA Case on Grounds of State Secrets Privilege
July 21, 2006. Federal District Judge Vaughn R. Walker of the Northern District of California has rejected a Justice Department motion to dismiss a suit brought against AT&T, alleging that the company violated several provisions of law by cooperating with the National Security Agency's warrantless surveillance program that involved telephone records. The Justice Department had intervened in the case and asked the court to dismiss the case on the basis of the state secrets privilege. There are several such cases pending concerning various aspects of the NSA programs made public over the past several months.
Read the Hepting v. AT&T opinion and order.

Supreme Court Rejects Administration's Position on Military Commission Procedures to Try Detainees
June 29, 2006. In a 5-3 opinion written by Justice Stevens, in Hamdan v. Rumsfeld, the Supreme Court has rejected the Bush administration's position that the procedures developed for adjudication of cases involving what the administration has termed illegal combatants (as compared to prisoners of war) were legally adequate and called either for a court martial or a proceeding in a federal court. The commissions are based on an executive order issued on November 13, 2001. Justice Stevens wrote: "For the reasons that follow, we conclude that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ [Uniform Code of Military Justice] and the Geneva Conventions. Four of us also conclude . . . that the offense with which Hamdan has been charged is not an 'offens[e] that by . . . the law of wat may be tried by military commissions. " Slip opinion at p. 3. While there were four votes for the core plurality, Justice Kennedy joined some portions of the Court's opinion. Justices Scalia, Thomas, and Alito all wrote dissenting opinions. Chief Justice Roberts did not participate because of his involvement while a member of the Circuit Court of Appeals for the D.C. Circuit before his elevation to the U.S. Supreme Court.
Read the Hamdan v. Rumsfeld opinion.

State Department and National Countertorrism Center Issue Reports on Terrorism
April 29, 2006. The Department of State has resumed annual reports on terrorism with a change in approach from the previous series that was halted two years ago. The report is entitled Country Reports on Terrorism. (The earlier reports had been published as Patterns of Global Terrorism.) The National Counterterrorism Center Produced the Statistical Annex to the report detailing 11,000 terrorist attacks in 2005 of which some 3,500 were in Iraq.
   Read the State Department Report.
   Access the National Counterterrorism Center Statistical Annex.
   Access the Website for the National Counterterrorism Center.

President Bush Signs USA Patriot Act Reauthorization
March 10, 2006. President George W. Bush yesterday signed H.R. 3199, entitled the "USA Patriot Improvement and Reauthorization Act of 2005." In addition to its many provisions on homeland security concerns, this legislation contained Title VII which is the Combat Methamphetamine Epidemic Act of 2005.
Read the Act.

UN Human Rights Commission Experts Group Issues Report Critical of US Operations at Guantanamo Bay
February 16, 2006. A special panel of experts has issued a report for the UN Commission on Human Rights critical of the operation of the U.S. detention facility at Guantanamo Bay.
Read the UN Report on Guantanamo Bay.

Justice Department Provides Congress with Administration Arguments in Support of the NSA Surveillance Program
January 20, 2006. In an attempt to counter recent Congressional Research Service memoranda challenging the legal authority for the NSA domestic surveillance program, the Department of Justice has provided congressional leaders with what amounts to a legal brief in defense of the NSA program that President Bush has acknowledged authorizing after 9/11. The document, entitled "Legal Authorities Supporting the Activities of the National Security Agency Described by the President," relies heavily on a broad claim to an inherent constitutional claim to authority. "The NSA activities are supported by the President's well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. The President has the chief responsibility under the Constitution to protect America from attack, and the Constitution gives the President the authority necessary to fulfill that solemn responsibility." (p. 1) This program and other assertions of executive authority are to be the subject of hearings in the Senate Judiciary Committee scheduled for February.
Read the DOJ White Paper.

Congressional Research Service Issues Legal Memorandum Disputing Administration Claims to Legal Support for Domestic Surveillance and Adequacy of Disclosure to Congress
January 18, 2006. The debate over Bush administration orders for the warrantless use of surveillance reaching inside the U.S. has intensified with the issuance by the Congressional Research Service of a legal memorandum disputing the administration's claims that the program is legally justified. Another CRS report challenges the administration's claim that it had provided adequate notice to members of Congress concerning the NSA program. The first of the two CRS documents, entitled "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information," responds to a December 22, 2005 letter submitted by the Department of Justice Office of Legal Affairs to some of the members of the House and Senate intelligence committees asserting legal support for the administration's program.
   The CRS memorandum indicates that there remains considerable reason to doubt the administration's confidently stated position and concludes: "From the foregoing analysis, it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here under discussion, and it would likewise appear that, to the extent that those surveillances fall withint the definition of "electronic surveillance" within the meaning of FISA or any activity regulated unter Title III, Congress intended to cover the enture field with these statutes. To the extent that the NSA activity is not permitted by some reading of Title III or FISA, it may represent an exercise of presidential power at its lowest ebb. . . ." (p. 44).
   Read the CRS Legal Memorandum on Domestic Surveillance.
   Read the CRS Report on Congressional Notification.

Small Business Administration Inspector General Details Problems in Post-9/11 STAR Loan Program
January 1, 2006. The Small Business Administration Inspector General issued an audit on December 23, 2005, indicating serious difficulties with the manner in which SBA post-9/11 loans were used. The report, entitled "Audit of SBA's Administration of the Supplemental Terrorist Activity Relief (STAR) Loan Program," indicated that the funds were distributed across the nation, often without the knowledge of the loan recipient that the funds had anything to do with post-9/11 efforts. It also concluded that the program was operated by private lenders that often did not have records adequate to support the appropriateness of the loan under inadequate guidance from SBA.
Access the SBA IG STAR Loan Report.

Department of HomelandSecurity Issues Critical Assessment of the Agency
December 28, 2005. Department of Homeland Security Inspector General Richard L. Skinner has issued a new report on Major Management Challenges Facing the Department of Homeland Security that finds that the agency's existing challenges of integrating and operating a variety of complex agencies and missions has been further complicated by the failures demonstrated by the DHS response to hurricanes Katrina and Rita.
Access the Inspector General Report.

Fourth Circuit Slams Administration for Efforts to Evade Supreme Court Review in the Padilla Case
December 22, 2005. In a sharp rebuke written by the very conservative Judge Luttig, a panel of the U.S. Circuit Court of Appeals for the Fourth Circuit has rejected the administration's effort to remove Jose Madilla from military custody and charge him with an entirely different crime than the allegation the administration had used to justify his long confinement without trial .
Read the Fourth Circuit Padilla Opinion.

FISA Court Judge Resigns.
December 21, 2005. News reports indicate that Judge James Robertson of the Foreign Intelligence Surveillance Court has resigned in part at least as a result of disclosures of domestic surveillance programs that circumvented the court. His is not the first protest at domestic surveillance actions. The only published opinion of that court was signed by all of the judges and took the Justice Department to task for its actions. It was later reversed by the FISA review court which granted broad authority to the administration in its interpretation of the Patriot Act's application to FISA court surveillance.
Read the Opinion of the Foreign Intelligence Surveillance Court Criticizing Justice Department Practices.
Access the FISA Review Court Decision Reversing FISA Court and Granting Broad Authority to the Justice Department.

Defense Department Acknowledges TALON Surveillance Database and Undertakes Study to Correct Database Management Problems
December 19, 2005. Press stories concerning the operation by the Countintelligence Field Activity (CIFA) of its Talon (Threat and Local Observation Notice) database used for domestic as well as international data collection and analysis have been met by Pentagon acknowledgements of inquiries to determine whether information has been retained that should have been purged. The Washington Post also reports the dramatic expansion in size and scope of CIFA operations. The defense department acknowledges that the press reports that the system was used to gather and maintain information information on individuals and groups near U.S. military installations and indicated on its website that: "It appears as if there may have been things that were left in the database that shouldn't have been left there," DoD spokesman Bryan Whitman told Pentagon reporters." The DOD issued an "Instruction" on "DOD Counterintelligence Collection Reporting," including the CIFA Talon reports, on October 26, 2005.
Read DOD Release on Problems with Talon Database Management.
Read DOD Instruction on Counterintelligence Collection Reporting.

President Acknlowledges Domestic Surveillance Program.
December 19, 2005. Despite the availability of an expedited and secure process for obtaining warrants to conduct domestic surveillance in situations involving foreign intelligence gathering and terrorism (the Foreign Intelligence Surveillance Act or FISA), the President acknowledged having issued directives authorizing the National Security Agency to conduct such surveillance without a warrant after 9/11. News of the NSA program was released by the New York Times on the same day as the battle over reauthorization of the Patriot Act played out in the Senate. Republican leaders were not able to muster enough votes to stop a filibuster and force a vote, leaving the act ready to sunset at the end of the year. That action was followed by stories in the Washington post today which detailed the operation of and reported data management problems with the defense department's Countintelligence Field Activity (CIFA) and its Talon database.
   Read the President's Address on the NSA action.
   Read Foreign Intelligence Surveillance Act via LII.
   Access the 2001 Use of Force Resolution P.L. 107-40.

Fourth Circuit Upholds President's Power to Detain in Padilla Case
September 10, 2005. The United States Circuit Court of Appeals for the Fourth Circuit has reversed a district court ruling against the detention of Jose Padilla, an American citizen who has been determined by the administration to be an enemy combatant and detained for over three years without trial. The circuit court wrote: "We conclude that the President does possess such authority pursuant to the Authorization for Use of Military Force Joint Resolution enacted by Congress in the wake of the attacks on the United States of September 11, 2001." Slip Opinion at 7..
In an interesting coincidence, this opinion was written by Judge J. Michael Luttig, reportedly a favorite candidate of many conservatives to replace Sandra Day O'Connor and one of those on the short list at the time Judge Roberts was initially named to succeed O'Connor. Now that her seat is once more available, it remains to be seen whether Luttig's name will resurface as a candidate.
Read the Padilla v. Hanft opinion.

District Court Judge in Connecticut Strikes Patriot Gag Order Provision for Librarians Who Wish to Enter Patriot Act Debate on Efforts to Obtain Library Records
September 9, 2005. District Judge Janet C. Hall of the U.S. District Court for the District of Connecticut has issued a ruling lifting a statutory gag order in Doe v. Gonzales, a case brought by librarians challenging the constitutionality of Patriot Act provisions under the First Amendment. In the interim, they asked for the order because they are seeking to speak out about government efforts to obtain library patrons' records as part of the debate over the reauthorization of the U.S. Patriot Act. The judge considered the provision of the Patriot Act that prohibits those from whom information is requested from disclosing the fact of that request and found that "§2709(c) is both a prior restraint and a content-based restriction on free speech." Slip opinion at 27. Hall concluded that the federal government had not met its burden under the strict scrutiny standard to justify the provision and she enjoined enforcement of the gag order provision against the librarians. However, she stayed her order until September 20, pending appeal.
Read the Opinion.

District Court Strikes Portions of New Homeland Security Human Resources Management Rules
August 12, 2005. Judge Rosemary Collyer has struck down portions of the recently released Department of Homeland Security human resources system (See link later in this page) in her ruling in National Treasury Employees Union et al v. Michael Chertoff. The court rejected the idea that mere consultation with the unions was an adequate substitute for negotiations.
Read the Opinion. This is a fairly lengthy PDF file and if there are download difficulties the webmaster as the District Court advises that it may be best to download the file and open it off-line.

D.C. Circuit Upholds Military Commissions and Rejects Application of Geneva Convention to al Qaeda
July 15, 2005. The U.S. Circuit Court of Appeals for the D.C. Circuit reversed a district court ruling in the case of Hamdan v. Rumsfeld. The panel rejected challenges to the military commissions established by President Bush and also rejected Hamdan's argument that the Geneva convention applied to him, ruling that is protections applied only to traditional wars or to civil wars.
Read the Opinion

Defense Authorization Act Provides A Platform for A Variety of Congressional Policy Initiatives
May 30, 2005. Before leaving town for its Memorial Day recess, the House of Representatives passed its version of the defense authorization bill for FY2006 and the Senate introduced its own version. Both bills contain a number of significant policy initiatives, one of the important topics of which is contract operations. Sections 801 et. seq. of both bills contain a number of new policies addressing a myriad of concerns expressed in committee hearings by the armed services committees in both houses on DOD contracting, particularly in light of the growing importance of contracting under the Bush administration competitive sourcing program. These and other interesting pieces of the legislation make it worthwhile to scan the legislation.
Read the Act

Ninth Circuit Upholds Defense Department "Stop Loss" Forced Service Program
May 13, 2005. The U.S. Circuit Court of Appeals for the Ninth Circuit today upheld an Oregon federal district court ruling that rejected a challenge by an Oregon National Guardsman slated to be sent to Afghanistan after his eight year enlistment had ended. The "stop loss" program has been used to retain personnel who were about to be separated or to recall those who had already left the military service to active duty. However, before Santiago was to leave the military in 2004, his obligation was involuntarily extended to 2031. The case, Santiago v. Rumsfeld, challenged the DOD policy on grounds that it violated federal statutes, his enlistment agreement, and the due process clause of the Fifth Amendment, but the three judge panel of Ninth Circuit rejected all of those claims. Santiago is now serving in Afghanistan.
Read the Opinion.

Congress Enacts the REAL ID Act P.L. 109-13 Making Dramatic Changes in Asylum Policy and Other Key Areas
May 11, 2005. President Bush today signed into law P.L. 109-13, an emergency appropriations act for military operations and homeland security matters, but contained within it is the hotly debated REAL ID Act. While most attention during the debates was focused on provisions requiring demonstration of citizenship or legal residency in order to obtain a driver's license, the legislation also significantly change U.S. asylum policy among other key changes.
Read the Act

Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction Issues Its Long Awaited Report
March 31, 2005. The commission created by President Bush just over a year ago to study U.S. intelligence capabilities and challenges with respect to weapons of mass destruction has issued its report agreeing with a number of other commissions and committees of Congress that the U.S. intelligence establishment has not kept pace with the rapidly changing world situation. The report examined not only the question of U.S. assertions regarding WMD in Iraq, but also intelligence operations concerning Afghanistan, Libya, and other situations as well.
Read the Report.

Homeland Security Secretary Outlines His Risk-Based Approach
March 16, 2005. Secretary Michael Chertoff outlined his risk-based approach to homeland security in a speech to the George Washington University Homeland Security Policy Institute.
Read the Speech.

Bush Appointee Strikes Unlimited Detention of Padilla
February 28, 2005. Federal District Court Judge Henry F. Floyd for the District of South Carolina rejected Bush administration efforts to hold Jose Padilla in the Navy Brig in Charleston. A Bush appointee, Floyd ruled that Padilla, who had been held since May 2002, must be charged or released. The justice department immediately indicated its intention to appeal. This is the second time through the courts for Padilla who was arrested at O'Hare Airport in Chicago on a material witness warrant. He prevailed in his earlier challenge to his incarceration, but the U.S. Supreme Court held last year that the case was launched in the wrong jurisdiction.
Read the Memorandum Opinion via Findlaw.com.

Homeland Security Budget Request Figures Prominently in Bush FY 2006 Budget Recommendations
February 7, 2005 The president has presented his FY2006 Budget proposal to Congress. The Department of Homeland Security and other national security programs figured prominently in that request to Congress
   Access Full Budget Documents
   Access Department of Homeland Security Budget Recommendation
   Read the Department of Homeland Security FY2006 Budget in Brief

Judge Green Rules Guantanamo Process Unconstitutional
January 31, 2005. Judge Joyce Hens Green of the U.S. District Court for the District of Columbia ruled today that the process for addressing the grounds for continued detention of those being held at Guantanamo Bay is unconstitutional. She wrote: "Upon consideration of all filings submitted in these cases and the arguments made at the hearing, and for the reasons stated below, tie Court concludes that the petitioners have stated valid claims under the Fifth Amendment to the United States Constitution and that the procedures implemented by the government to confirm that the petitioners are "enemy combatants" subject to indefinite detention violate the petitioners' rights to due process of law. The Court also holds that at least some of the petitioners have stated valid claims under the Third Geneva Convention." Since there was a previous ruling that rejected challenges to the process, the administration has indicated its intention to move forward with an appeal of Judge Green's ruling.
To read the Memorandum Opinion (a large file), click here for the Court's opinion page, select the Guantanamo Detainees opinion, right click, "save link target" to one's local computer and then open the file off line

GAO Issues Evaluation of Implementation and Challenges Remaining on the Administration's National Strategy for Homeland Security
January 2005. The Government Accountability Office has sought to provide an assessment of the implementation status and remaining challenges for the Bush administration's National Strategy for Homeland Security. The report is entitled "Homeland Security: Agency Plans, Implementation, and Challenges Regarding the National Strategy for Homeland Security.
Read the Report.

Justice Department Issues a New Memo on the Definition of Torture
December 30, 2004. With the former White House Counsel preparing to face Senate critics in confirmation proceedings following his appointment as Attorney General, the Department of Justice has issued a new memorandum the supercedes the highly controversial document prepared by the DOJ in August 2002 that supported broad authority for the administration in prisoner interrogations and saw relative few limitations from international and domestic laws against torture.
Read the Memorandum

Department of Homeland Security Inspector General Issues Report on Management Challenges Facing the Department
December 2004. The DHA Office of Inspector General looked back at the first 20 months of the life of the new cabinet department and has offered an analysis of current problems and others likely to face the new agency in the near future.
Read the Report.

Congress Enacts Intelligence Reform Bill
A combined force of 911 Commission members, families of 911 victims, and recent efforts by the Bush administration broke the logjam in the House of Representatives and produced limited compromises sufficient to move the Senate Bill S.2845 through the House. The Senate followed with an 89 to 2 vote in favor of the conference report on Wednesday, December 8.
Read the Conference Committee Report

U.S. District Court for the District of Washington Challenges Military Commission Process
U.S. District Judge James Robertson has issued a ruling in the case of Hamdan v. Rumsfeld, Civil Action No. 04-1519 (JR), drawing into question the procedures in use in the military commission trying detainees held in Guantanamo Bay facilities. Robertson found that the procedures are inadequate to determine whether Hamdan was properly to be considered a prisoner of war. Therefore, he could not be tried unless he is accorded a proper court martial under the Geneva convention. He wrote: "Unless and until a competent tribunal determines that petitioner is not entitled to the protections afforded prisoners of war under Article 4 of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 he may not be tried by Military Commission for the offenses with which he is charged." (Order, p. 2)
Read the Opinion

GAO Issues as Assessment of the "Human Capital Considerations Critical to 9/11 Commission's Proposed Reforms"
September 14, 2004. The Government Accountability Office has sought to provide an assessment of human capital issues raised by the 9/11 report, part of a much larger focus on human capital policy and management in the Bush administration.
Read the Report.

911 Commission Report Released
The full report of the 911 Commission is now available for download.
Read the report

GAO Testifies on Intergovernmental Challenges of Homeland Security Programs "Homeland Security: Reforming Federal Grants to Better Meet Outstanding Needs"
September 3, 2003. The Government Accountability Office has laid out in congressional testimony a variety of intergovernmental complexities created by the plethora of homeland security related grant programs.
Read the Report.

President Bush Issues Signing Statement for Homeland Security Act Noting Several Disagreements with its Provisions
Although he was pleased to sign the Homeland Security Act into law, President Bush issued a signing statement, indicating several concerns with various provisions of the legislation. He did not, however, issue a formal veto.
Read the Signing Statement.

Congress Passes the Homeland Security Act and Sends it to the White House for Signature
Just before adjourning, the House of Representatives passed the final version of H.R. 5005, creating the Department of Homeland Security and sent it to the White House for signature as soon as President Bush returns from Prague.
Read the Act.

Justice Department Memo for White House Counsel Suggests White House Can Avoid Torture Rules in Handling of Detainees
The Justice Department prepared for the white house counsel a memorandum on August 1, 2002 interpreting international prohibitions on torture in such a way as to afford the administration a great deal of latitude in its interrogation techniques for detainees and suggesting inherent presidential powers that would avoid domestic legal restrictions as well.
Read the Memorandum

U.S. Foreign Intelligence Surveillance Review Court Strikes Secret Court Ruling Limiting Bush Administration
The U.S. Foreign Intelligence Surveillance Reveiw Court has continued the heretofore unprecedented public debate over surveillance issues. In the most recent case, the Review Court overturned the earlier secret court opinion limiting claims by the Bush administration for new processes and criticizing both the current and previous administration for intelligence practices and for attempting to mislead the court.
Read the Opinion

Bush Administration Issues "The National Security Policy of the United States
The White House has issued its latest edition of the National Security Policy of the United States.
Read the Report

Sixth Circuit Rejects Bush Administration Call to Keep Deportation Proceedings Secret
Rejecting Attorney General Ashcroft's adamant view that the Justice Department should be able to keep deportations for persons of "special interest" secret, a panel warned: "Today, the Executive Branch seeks to take this safeguard away from the public by placing its actions beyond public scrutiny. Against non-citizens, it seeks the power to secretly deport a class if it unilaterally calls them "special interest" cases. The Executive Branch seeks to uproot people's lives, outside the public eye, and behind a closed door. Democracies die behind closed doors. The First Amendment, through a free press, protects the people's right to know that their government acts fairly, lawfully, and accurately in deportation proceedings. When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation. The Framers of the First Amendment 'did not trust any government to separate the true from the false for us.' They protected the people against secret government. "
Read the Opinion

Secret Court Challenges Abuses
The U.S. Foreign Intelligence Surveillance Court, in an unprecedented step has publicly released an opinion denouncing abuses by the officials seeking to use and even to expand covert intelligence gathering activities, including efforts to mislead the court.
Read the Opinion

The GAO Points Out Critical Importance of Intergovernmental Dimension of Homeland Security Policy
While most attention has been focused on Washington in Homeland Security policymaking, the U.S. General Accounting Office has stressed in congressional testimony the critical nature of defining the varying roles of different levels of government and focusing on intergovernmental efforts. "Appropriate roles and responsibilities within and between the levels of government and with the private sector are evolving and need to be clarified. New threats are prompting a reassessment and shifting of longstanding roles and responsibilities. Until now these shifts have been occurring on a piecemeal and ad hoc basis without benefit of an overarching framework and criteria to guide the process."
Read the Testimony

District Court for the District of Columbia Requires Federal Government to Release Names of Post-9/11 Detainees
In an August 2, 2002 ruling, Judge Gladys Kessler of U.S. District Court for the District of Columbia has given the federal government 15 days to release the names of the those detained since 9/11. The memorandum and order permits two exceptions. Those detainees who request not to have their names released are exempted as are those who are held as material witnesses. The case is Center for Nation Security Studies v. U.S. Department of Justice.
Read the Memorandum Opinion and Order

House Select Committee on Homeland Security Reports Out H.R. 5005 the Homeland Security Act of 2002
Read the Legislation

Fourth Circuit Reverses District Court Ruling Allowing American Detainee Unmonitored Access to his Attorney
The district court had ordered the government to allow Yaser Esam Hamdi, an American presentily being detained at the Norfolk Naval Station unmonitored visits with his attorney. The three judge panel of the U.S. Circuit Court of the Appeals has reversed and remanded that ruling for further proceedings.
Read the Opinion

Bush Issues Executive Order 13268 on Emergency WIth Respect to the Taliban
Bush issued the order to end the national emergency with regard to the Taliban government in Afghanistan declared by President Clinton in his Executive Order 13129, issued on July 4, 1999. The new Bush order revoked the Clinton order, but modifies and leaves in operation Exeutive Order 13224 issued by President Bush after the September 11 attack.
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White House Issues Presidential Memorandum Authorizing Further Action in Philippines.
On July 1, President Bush Issued the Following Meorandum to the Secretary of State and the Secretary of Defense.

Memorandum for the Secretary of State and Secretary of Defense
Presidential Determination
No. 2002-24

SUBJECT: Presidential Determination to Authorize the Furnishing of Emergency Military Counterterrorism Assistance to the Armed Forces of the Philippines

Pursuant to the authority vested in me by section 506(a)(1) of the Foreign Assistance Act of 1961, as amended, 22 U.S.C. 2318 (a)(1) (the "Act"), I hereby determine that:

(1) an unforeseen emergency exists that requires immediate military counterterrorism assistance to the Armed Forces of the Philippines; and

(2) the emergency requirement cannot be met under the authority of the Arms Export Control Act or any other law except 506(a) of the Act.

I therefore direct the drawdown of up to $10 million of defense articles and services from the inventory and resources of the Department of Defense to the Philippines for counterterrorism assistance.

The Secretary of State is authorized and directed to report this determination to the Congress and to arrange for its publication in the Federal Register.

See this and related matters on the White House Site

Homeland Security Legislation S. 2452 entitled National Homeland Security and Combating Terrorism Act of 2002 as Reported by Senate Governmental Affairs Committee
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Report to Accompany S. 2452 National Homeland Security and Combating Terrorism Act of 2002 issued by the Senate Committee on Governmental Affairs
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White House Releases Text of Proposed Department of Homeland Security Legislation
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Federal District Court Limits Use of Detention of Material Witnesses as a device in Justice Department Post-9/11 probes.
Judge Shira Scheindlin issued two rulings on April 30, 2002 laying down limits on the use of the federal material witness statute.
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"The President's Homeland Security Policy and Budget Priorities"
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POST 9/11 POLICY ACTIONS

Bush Issues Executive Order 13260 of March 19, 2002 Establishing the President's Homeland Security Advisory Council and Senior Advisory Committees for Homeland Security
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Bush Administration Isssues Military Commission Order 1 laying out the procedures for trials in military commissions established by President Bush's executive order.
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U.S. and Canada Issue Joint Statement on Cooperation on Border Security and Regional Migration Issues
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The Aviation and Transportation Security Act of 2001, P.L. 107-71
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Congress Passes the USA Patriot Act of 2001, P.L. 107-56
"An Act To deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes."
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Congress Adopts Resolution Authorization the Use of Military Force in Response to the Attack on the United States, P.L. 107-40
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President Bush Issues Orders on Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism
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President Bush Issues Executive Order 13233 Imposing Greater Control Over Release of Presidential Papers under the Presidential Records and Recordings Act
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Bush Creates Office of Homeland Security via Executive Order 13228
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Congress Moves to Rescue Airlines and Address Other Demands in the Aftermath of September 11.
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President Bush's National Security Presidential Directive (NSPD) on the Organization of the National Security Council System
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