November 2005

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Gotcha--Due Process With Vengeance

On Tuesday, November 22, two cases that I had followed and written about since their inception took a strange turn. Jose Padilla’s case received the most attention. He is the American citizen who was picked up in Chicago in May 2002, taken into custody in New York, and held in New York on a “material witness” subpoena. This is a little-known-about trick the government can play on you when it wants to lock you up but doesn’t quite know why. The New York prosecutors said they wanted to question him about a “dirty bomb” plot and they had to keep him locked up because he might flee the country.

A New York federal judge appointed Padilla an aggressive, shrewd attorney, Donna Newman, and she moved to have him released. But before that motion could be heard, literally in the dark of night, Padilla was turned over to military authorites on order of President Bush. He was named an “enemy combatant,” and ordered held by the military for as long as Bush wanted or until the end of “hostilities.”

Newman promptly filed a habeas corpus petition that most ancient of legal writs designed to allow judicial review by a prisoner who alleges he is being imprisoned contrary to law. It took two years for Padilla’s case to get to the Supreme Court, and when it did, in the summer of 2004, the Court ruled that the case had to be filed in another federal court wrong venue. By this time, Padilla had been removed to a navy bring in South Carolina.

Upon refilling, the lower federal court found that Padilla was unlawfully held. As an American citizen, the U.S. District Court judge said, there was no lawful basis to hold him in prison without charging him with a crime. The judge ordered the government to charge him or release him, but stayed that order and allowed the government to appeal. That appeal went to the federal court in Richmond, Virginia and they, the rightist of the right-wing courts, upheld his detention, much as they had done in the case of Yaser Hamdi two years before. The Supreme Court had overruled the court on that case, however, deciding, at the same time it dismissed Padilla’s appeal, that there were limits on executive power in "wartime” to hold Americans. The Supreme Court sent Hamdi’s case back to the lower court, and said he could challenge the lawfulness of his detention at Guantanamo Cuba.

Lo and behold, within a few short weeks, Hamdi was released from Guantanamo on the grounds that he return to Saudi Arabia, where he held dual citizenship. The once dangerous terrorist was set free when the government was told to put up or shut up.

When Attorney General Gonzales held a press conference to announce that Padilla was being charged with conspiracy to commit terrorism abroad, he refused to answer any questions about why Padilla was not charged with plotting to do what Ashcroft said he was going to do (even the Ashcroft story had morphed over time from planning to detonate a “dirty” bomb, to plots to blow up bridges or apartment buildings). Further, he said his indictment, and removal from the navy brig in South Carolina where he had been for three years to the federal detention center in Miami had nothing to do with his being an enemy combatant. In other words, he still is one.

Does Padilla’s indictment mean he will get a real trial under the Constitution and federal law, or will Gonzalez and gang try to play by different rules, as they are doing in so many other “terrorist cases?” I imagine the later. And on the off chance Padilla is acquitted, he can be returned to the custody of the President of the United States as an enemy combatant.

The government played an even bigger “gotcha” on Ahmed Omar Abu Ali, a Falls Church resident, American citizen, who November 22 was convicted by an Alexandria, Virginia jury of conspiring to commit terrorism, including plotting to assassinate President Bush, bring in terrorists through Mexico, and blow up airplanes. The charges sound horrible, but if you read the indictment you would find that Abu Ali did nothing more that talk not that talk like this is a smart thing but there was no concrete plan. As Paul Wolfolwitz had one time said of Padilla’s alleged “plot,” it appears to have been a lot of “loose talk.” But loose talk can get you life in prison these days.

But it’s not the charges against Abu Ali that were unusual. No, those are cropping up all here and there, against Arab men, some American citizens. What was unusual about Abu Ali’s case is that he was held, at the behest of the federal prosecutors, in a Saudi prison for twenty-two months, during which time he was repeatedly interrogated by Saudi law enforcement and the FBI. Eventually the Saudis obtained a confession, with FBI agents watching from behind a hidden camera. Though conceding that Abu Ali was interrogated for hours on end, day after day, the interrogations lasting throughout the night, during which he was often shackled and chained, and though he had no attorney (even though his parents were trying to provide him one), Judge Gerald Bruce Lee found his confession to be voluntary and uncoerced. Medical doctors testified that he had the marks of physical torture and the symptoms of having been mentally coerced, but prosecution doctors said he was faking.

Lee also said that Abu Ali was not entitled to the constitutional protections of an attorney and a speedy trial. Why? Because he was held by Saudi Arabia, not the US, and, further, he was never a criminal suspect and thus the Bill of Rights does not apply. The government did not explain how someone who was never a criminal suspect suddenly became a criminal defendant.

But I have a plausible explanation. Alexandria prosecutors brought Abu Ali to the U.S. and charged him after his parents had appeared to convince a federal judge in the District of Columbia that the government had their son and would not allow him to return home (Abu Ali was studying in a Saudi university at the time of his arrest). They, like Padilla’s lawyers, filed a writ of habeas corpus. Initially, the Justice Department denied having anything to do with Abu Ali’s arrest and imprisonment in Saudi Arabia. They even said, at one time, that he could come home whenever the Saudis were ready to release him (they had questioned him in connection with the bombing of a residential compound in Riyadh in 2003),

Then the government changed its tune and said he was too dangerous to be returned to the U.S., but they couldn’t say why oh they could say, but only to a judge, not to Abu Ali’s parents. While the judge was pondering this posture of the government, the government produced him, without warning, in federal court in Alexandria and arraigned him on an indictment that was a lot milder than the one he was eventually tried on.

As with Padilla, the charges kept shifting and, of course, each time they got more serious, more sinister. Abu Ali will surely receive life in prison even though, as one attorney put it, the charge is more like a conspiracy to conspire at some future time. But then, if you looked behind the grandiose press conferences of his case, Padilla’s, and others like theirs, you would find the flimsiest of facts.

I can’t speak to the facts surround the charges that Padilla faces and that Abu Ali was convicted of. What I can speak to, is the sorry methods of our government as it plays games with American citizens. Nothing excuses keeping Padilla locked up incommunicado for three years, changing stories about him all the time and two weeks before it was due to file a brief explaining its position to the U.S. Supreme Court, pulling out a whole new set of facts and taking him out of Bush’s hands and into the hands of federal prosecutors.

And nothing excuses using a foreign government, known to engage in torture (one Saudi official testified, by video feed, in Abu Ali's case, that Saudi’s had a 100 percent confession rate under their interrogation methods), to imprison an American for what reasons, we will never know and then, when the gig appears to be up, when a federal judge has a hard time believing the government’s ever-changing theory of where Abu Ali was and who had him, bringing him home and filing charges.

In these two cases, our government has violated every principle of constitutional law and criminal procedure that at one time made our criminal justice system something to be proud of. The Bill of Rights held no hope for these men. Only the write of habeas corpus that last hope for the hopeless that holds the President to account for imprisoning someone got then in the court house door.

But the government taught them a civics lesion they didn’t learn in school: the President, at least this President, thinks he can walk all the Bill of Rights your rights and get away with it. When one maneuver fails, they have another up their sleeves. And when they run out of tricks, they turn their energies to making a criminal case against you, albeit the allegations are based in supposed facts that are years old and often come from other alleged terrorists who are making plea and sentencing deals or from coercion, maybe even torture, in a foreign land.

Want due process? The Bush administration will make you sorry you asked. Gotcha.

Posted by Elaine Cassel at November 30, 2005 7:13 PM

 

Prosecutor Under Investigation in Detroit Terrorism Case

I wrote about the case of the Detroit "sleeper cell" in my book, The War on Civil Liberties. When the book went to press, Judge Rosen was considering defense motions to set aside the verdicts. Apparently the Justice Department is probing whether the lead prosecutor set out to mislead the defense, and to convict the defendants with false evidence.

The prosecutor alleges that he is being smeared by the Justice Department, against who he testified about to Congress in a probe of case.

Considering that this administration would not likely investigate any prosecutor for dirty tricks--given that it lives by them in its Roveian universe--the more likely scenario is that the prosecutor IS being retaliated against for blowing the whistle on the big guns.

Here is the Washington Post story about the case.
Detroit 'Sleeper Cell' Prosecutor Faces Probe
Grand Jury Considering Indictment for Misconduct

By Peter Slevin
Washington Post Staff Writer
Sunday, November 20, 2005; A03

DETROIT -- Once trumpeted as one of the Justice Department's significant triumphs against terrorism, the case targeting the so-called "Detroit sleeper cell" began less than a week after the attack on the World Trade Center. It was only after a jury convicted two men of supporting terrorism that the flimsiness of the government's case became clear.

As hidden evidence spilled out and the Justice Department abandoned the effort, federal investigators began to wonder whether the true conspiracy in the case was perpetrated by the prosecution.

Now a federal grand jury in Detroit is investigating whether the lead prosecutor, Richard Convertino, or anyone else should be indicted for unfairly tipping the scales.

It is a highly unusual case. No charges have been brought and many details remain secret, but information in public documents and testimony in U.S. District Court in Detroit suggest an effort by federal prosecutors and important witnesses to mislead defense lawyers and deceive the jury. U.S. District Judge Gerald E. Rosen said the government acted "outside the Constitution."

Rosen and Justice Department investigators concluded last year that the prosecution stuck doggedly to its theory in defiance of plausible explanations and advice from other U.S. government officials. Records suggest prosecutors withheld evidence that cast doubt on their conclusions, even when ordered by superiors to deliver documents to the defense.

Convertino, who resigned from the Justice Department earlier this year to practice law in Michigan, has denied wrongdoing. He sued former Attorney General John D. Ashcroft and other superiors, accusing them of mismanaging anti-terrorism efforts and retaliating against him for testifying to Congress about those efforts. His attorneys contend that Convertino was no renegade and was closely supervised by Washington.

It would be "extremely rare for a prosecutor to face criminal charges for misconduct," said former D.C. public corruption prosecutor Randall D. Eliason. "The key is going to be showing deliberate and willfully corrupt misconduct, as opposed to somebody who was pushing the envelope and got carried away."

U.S. District Judge Royce Lamberth threw out the retaliation claim in Convertino's civil lawsuit in October, saying federal court was not the proper venue. He allowed another portion of Convertino's case to proceed, though he has granted a delay while the Detroit grand jury investigation is underway.

The case of the sleeper cell that wasn't began on Sept. 17, 2001, when federal agents searching for a suspect named Nabil al-Marabh instead found three men in a Detroit apartment where al-Marabh had once lived. Among their possessions were fake identity documents, Islamic fundamentalist cassette tapes and a videotape with footage of tourist sites.

Prosecutors charged four men -- Karim Koubriti, Ahmed Hannan, Farouk Ali-Haimoud and Abdel-Ilah Elmardoudi -- with conspiring to help terrorists. Convertino and his principal chief government witness, FBI agent Paul George, believed they had cracked an "operational combat cell" of Islamic terrorists.

Convertino told a jury when the trial began in March 2003 that the men were a "shadowy group" that was "planning, seeking direction, awaiting the call." The most important piece of evidence was a day planner that included a pair of sketches.

To the prosecution, they were the maps of a terrorist. The defense dismissed them as doodles.

Seeing that one drawing said "Queen Alia Jordan," Convertino and his team searched for a match in Jordan among an airport, hotel and military hospital that all bore the name of the former queen. FBI agent Michael Thomas and State Department security officer Harry Raymond Smith testified to seeing striking similarities between the sketch and the hospital's surroundings.

"Every time we turned," Smith testified, "it was getting more and more like this drawing."

There was much discussion during the trial about whether the prosecution had photographs that could settle the debate. When Convertino asked Smith under oath whether he had taken photographs, Smith replied that diplomats "never take pictures" of a military installation because "it could cause bigger political implications."

But Justice investigators said later that U.S. officials had taken photographs and Convertino knew it. E-mails from State Department liaison Ed Seitz reported that the photos had been forwarded to Detroit, where Convertino replied, "Thanks Ed!! We love ya."

Justice lawyers said the photographs and the e-mails should have been disclosed. They concluded, in remarks unusually critical of a fellow prosecutor, that "misleading testimony was elicited."

"It is difficult, if not impossible," the lawyers wrote, "to compare the day planner sketches with the photos and see a correlation between the documents and the hospital site."

Thomas told investigators after the trial that Jordanian intelligence officers believed the drawing more resembled the airport. But he testified differently, telling the jury: "We presented this document to the Jordanians. They said, 'We believe this is the military hospital.' " Convertino said a second day planner drawing portrayed Incirlik Air Base in Turkey. This time he introduced photographs. Thomas testified that the match was "almost identical," while Air Force Lt. Col. Mary Peterson described the sketch as "pre-operational surveillance."

What no one on the prosecution team revealed was that other military analysts thought the drawing was not a bomber's map of Incirlik, but a doodler's depiction of a map of the Middle East.

The Justice review team said Peterson had created the "strong inference" that all Air Force personnel agreed that an object in the drawing was a hardened bunker that existed at Incirlik. But undisclosed documents in the Air Force file called the drawing unclear and described any conclusions as "essentially opinion."

A group of U.S. terrorism specialists in Ramstein, Germany, also studied the drawing and concluded that it might be a Middle East map. That detail took on more importance after the trial when an Air Force investigator described a conversation with FBI agent Thomas.

According to the investigator, Thomas reported that a Yemeni source named Nasser Ahmed told him his mentally unstable brother might have drawn a map of the Middle East while doodling in the day planner. Defense lawyers were never told of the potentially exculpatory evidence, as required by law.

Rosen was so troubled by another piece of hidden evidence that he conducted a December 2003 hearing to find out why the U.S. attorney's office had failed to disclose it. The subject was a letter written by Milton "Butch" Jones, a Detroit drug gang leader awaiting sentencing on a federal murder charge.

Jones wrote to prosecutors that he had spoken in jail with Youssef Hmimssa, the only witness to tie the Detroit defendants to a terrorist cell. He quoted Hmimssa as saying he had lied to the FBI and fooled the Secret Service. Jones offered to show prosecutors his notes and take a polygraph test.

Federal prosecutor Joseph Allen testified in a post-trial hearing that he showed the letter to Convertino more than a year before Hmimssa took the witness stand. When it became clear during the trial that the letter remained secret, Allen was so upset that he notified the head of the Detroit U.S. attorney's office criminal division, Alan Gershel.

Gershel told Rosen how, with the letter in front of him, he instructed Convertino's co-counsel, Keith Corbett, during the trial to release it. Allen said Gershel told him later the same day that the matter had been taken care of.

But Convertino and Corbett did not release the letter. Questioned later by Rosen, Convertino said "it slipped through the cracks" and would not have helped the defense anyway. Corbett admitted a "mistake in judgment on our part," but added that he did not recall Gershel's order to surrender the letter.

Rosen ordered the internal Justice Department inquiry in December 2003, six months after the jury convicted Koubriti and Elmardoudi of supporting terrorism. Those two and Hannan were also convicted of document fraud. Ali-Haimoud was acquitted.

The Justice Department took its own case apart, witness by witness, and delivered scores of pages of evidence to defense lawyers. Rosen also traveled to the CIA to review classified documents.

Beyond the evidence about the trial, the Justice Department review quoted witnesses as saying that Convertino instructed an FBI agent not to fill out official reports on the lengthy interviews of Hmimssa, the questionable witness. The FBI reports -- standard procedure -- would have been accessible to defense lawyers.

Defense lawyers, who had accused the prosecution of concealing evidence and knowingly using false testimony, felt vindicated.

"This was, for lack of a better term, a conspiracy to present a fraudulent case to the court," said Detroit defense lawyer William Swor, who represented Elmardoudi. "They took what was a reasonable concern under the circumstances and turned it into a witch hunt."

Posted by Elaine Cassel at November 20, 2005 6:47 AM

 

The Shocking Case of Ahmed Omar Abu Ali

http://writ.findlaw.com/cassel/20051107.html

----
The Shocking Trial of American Citizen Ahmed Abu Ali:
Statements Procured Under Duress in a Saudi Prison Are Now Being Used by U.S. Prosecutors in a U.S. Court
By ELAINE CASSEL ----
Monday, Nov. 07, 2005

Ahmed Abu Ali is an American - a resident of Falls Church, Virginia. In the summer of 2003, Abu Ali was taking final exams in a Saudi Arabian university, and looking forward to returning home to his family in Northern Virginia for the summer.

But Abu Ali did not come home. Instead, Saudi law enforcement authorities forcibly removed him from his classroom and imprisoned him for twenty months. Later, as I detailed in an earlier column, Abu Ali did return to Virginia - but to face federal charges of conspiracy to aid and abet terrorism.

This September, the government added new charges in a new indictment. And this October, Judge Gerald Lee denied Abu Ali's motions to suppress, as evidence, what the government alleges are confessions to several serious terrorism crimes. (He also denied Abu Ali's related motion to dismiss the charges in light of the way the evidence was procured.) Now, the trial has begun.

In this column, I will explore some troubling aspects of the indictment and the interrogation that gave rise to it.

Why the Charges Against Abu Ali Are Shaky

Abu Ali is charged with plotting to bring al Qaeda members into the U.S. by means of Mexico, to commit aircraft piracy, and to kill President Bush through the use of suicide bombers and snipers. Abu Ali faces possible life imprisonment on these very serious charges. But whether there ever was such a conspiracy is doubtful.

Consider, first, that all of Abu Ali's alleged co-conspirators are unnamed. Some, it seems, have been convicted in connection with other Alexandria "terrorism" cases (including the Paintball cases, which I have discussed in another column) as well. Their "cooperation" with prosecutors could lead to reductions in their long sentences.

Consider, too, that typically, a conspiracy charge requires not just talk, but an "overt act." And here, the only acts the government alleges are purchases of a cell phone and a laptop.

So this case is really about talk. Yet much of the government's evidence regarding what Abu Ali allegedly talked about, comes from his interrogation by his Saudi captors and FBI agents, in a Saudi prison - interrogation that was not only unconstitutional, but highly unreliable.

Column continues below Can Evidence Coerced by Saudi Interrogators Be Used in a U.S. Court?

Abu Ali was interrogated by the Saudis without any of the safeguards that Americans are afforded in U.S. court. He did not have the right to an attorney. He was not informed of his Miranda rights. And he was not protected against coercive self-incrimination.

Yet now, American prosecutors will be using Abu Ali's unconstitutionally-procured statements against him in an American court. How did this happen?

To aid the judge in deciding whether to allow the statements to be admitted, defense attorneys questioned Abu Ali's Saudi interrogators - with the help of Arabic translators -- by live audio and satellite feed from Saudi Arabia to the federal courthouse in Alexandria, Virginia. Supposedly for "security reasons," the Saudi officials were allowed to testify under pseudonyms. (Prosecutors and defense attorneys were also present in Saudi Arabia as well as in Alexandria).

What the Saudi Interrogators Claimed: No Torture, Voluntary Confessions

The Saudis said it was their idea - not the United States' -- to initially detain Abu Ali in June 2003, as a part of their investigations into the May 2003 bombing of a residential compound in Riyadh.

But shortly after the Saudis arrested Abu Ali, they said, Alexandria prosecutors "ordered" them to ask Abu Ali some questions. This admission puts the lie to any claim that this was not, in effect, a joint U.S.-Saudi scheme of imprisonment and interrogation

Had Abu Ali's interrogation taken place in the U.S., it would have been plainly unconstitutional. Kept in solitary confinement (allegedly for his own protection), Abu Ali was repeatedly interrogated from 8 p.m. to 6 a.m. (according to his captors, because it was too hot during the day, and not to deprive him of sleep), a commonly used coercive interrogation tactic. He was also often shackled and chained during questioning. At some point, Abu Ali was ordered to put his "confessions" into writing and read them aloud while being videotaped.

The Saudis denied use of any torture.

What the FBI Agents Claimed: No Attempt to Circumvent Miranda Protections

The FBI agents who traveled to Saudi Arabia also testified. They explained that they had watched from behind a one-way mirror while Saudis conducted interrogations. They eventually participated in their own interrogations, with and without their Saudi counterparts. Emails from FBI agents to Alexandria prosecutors assured them that the Saudis would do whatever the US told them to do.

This is further evidence that the Saudis and Americans were engaged in a joint enterprise to detain and interrogate Abu Ali.

With U.S. prosecutors calling the shots, and doing some of the interrogating, why weren't Abu Ali's constitutional rights honored? The FBI agents testified that Miranda was not applicable, nor was Abu Ali provided a lawyer, because Abu Ali was not a U.S. criminal suspect. Rather, they say, they were just talking to Abu Ali to gather intelligence.

But that crucial assertion, too, utterly lacks credibility. Of course the FBI came to Saudi Arabia to investigate charging Abu Ali with a crime - which was exactly what they later did. If it were purely for intelligence purposes, wouldn't they have sent interrogators from the CIA or the Department of Defense?

What the Doctors Testified: Evidence of Beatings and Trauma

Abu Ali's attorneys introduced the testimony of physicians who believed that scars on Abu Ali's back were evidence of beatings. Prosecution experts said these scars were either self-inflicted, or acne scars. But what we know of Saudi interrogation practices makes the defense experts' testimony far more compelling.

Defense psychological experts said that Abu Ali was suffering from post-traumatic stress syndrome, brought on by his imprisonment and interrogation. Prosecution psychologists said he was well-adjusted, and any maladjustment symptoms were feigned. Again, the defense's experts were more credible: Who among us would not be traumatized by being interrogated for months in a Saudi prison?

Judge Lee's Opinion Wrongly Finds That No Laws or Rights Were Violated

In light of the evidence presented, how could Judge Lee let this case go forward?

He defended his reasoning in a 113-page decision. But his logic comes down to taking the FBI's word for the proposition that the interrogation was designed to obtain intelligence, and was not part of a criminal investigation - and thus that Abu Ali did not enjoy the rights of a criminal suspect.

By adopting the government's implausible spin on the facts, Judge Lee concluded that Abu Ali had no rights at all.

It is not clear at what point Abu Ali, in fact, became a suspect, but we do know Abu Ali's indictment was suspiciously and closely related to developments in the habeas corpus case filed by Abu Ali's parents in federal court in the District Columbia, before Judge John Bates.

So, if we take the government's word for it (as Judge Lee did), Abu Ali never was a suspect. But, he suddenly became a defendant when it appeared that Judge Bates was having some problems with the government's position that Abu Ali - then in Saudi Arabia - was so dangerous he could not be returned to the U.S.

Judge Lee Rewards the Government's Unconstitutional Tactics

Judge Lee excluded no evidence, rewarding the government for its decision to interrogate an American in a Saudi prison using Saudi tactics. He repeatedly concluded that the methods and tactics used against Abu Ali did not "shock the conscience," the Supreme Court's standard for excluding confessions on the ground that they were not voluntarily given.

Even if the evidence about physical beatings was not wholly convincing, to conclude that a confession is voluntary when given in a Saudi prison under harsh interrogation tactics over an eighteen-month period, much of it in solitary confinement, without a lawyer, defies credibility.

Judge Lee also ruled that Abu Ali had no speedy trial right because at no time was he under arrest by the United States; rather, he was simply an intelligence target. Judge Lee found no credence in the defense position that the Saudis were acting as agents of the U.S. in order to circumvent U.S. constitutional rights.

But he should have: The government's own emails boasting of the Saudis' doing what they were told; the questions fed to the Saudis by the FBI; the joint and U.S.-only interrogations in Saudi prisons; and the well-known U.S.-Saudi alliance, are all evidence that the Saudis acted as U.S. agents - though also on their own behalf as well.

While Judge Lee ignored the weakness of many of the government's claims, he honed in on any perceived inconsistency between Abu Ali's versions of events and the interrogatories his attorneys submitted - seeing such inconsistencies as a sign of Abu Ali's "cunning."

The Practice Of Unconstitutional U.S. Interrogations In Foreign Prisons Must End

Dana Priest, writing for the Washington Post last week, confirmed what Amnesty International and others had thought for some time: The CIA is running a chain of prisons outside the United States. Its captives are alleged terrorists. Rights - whether under the Geneva Conventions or the U.S. Constitution - are ignored. The article by Jennifer Van Bergen appearing today on this site stresses the illegality of this practice.

The Post article describes prison cells consisting of underground tunnels, hidden not just from the light of day, but from the prying eyes of the U.S. Congress and the American taxpayers who foot the bill. Government sources admit that the prisoners are subject to intense interrogation. Some have been imprisoned for years.

As odious as these imprisonments and interrogations are, like it or not, the CIA's ability to operate outside the constraints of law has a long history in this country. This is not the case with federal criminal justice system, whose accountability makes it the best in the world.

Abu Ali's shocking treatment is the first that tests the notion that Americans can be imprisoned abroad by their government, interrogated by foreign and domestic law enforcement, and be denied all rights as coercive confessions are obtained to be used against them in a U.S. court. (The value of Abu Ali's confessions cannot be underestimated, given that at least some of the unnamed co-conspirators are thought to be convicted terrorists themselves.)

Abu Ali, if convicted, won't find much sympathy on appeal to the U.S. Court of Appeals for the Fourth Circuit or the U.S. Supreme Court. Justice John Roberts and, if confirmed, a Justice Samuel Alito, are strong proponents of virtual unbridled executive and prosecutorial powers, especially in the "war" on terrorism.

Abu Ali's case may be the beginning of the end of differences between the U.S. criminal justice system and those of repressive, undemocratic regimes like Saudi Arabia, its partner in this case. In terms of criminal cases, the Bill of Rights is being tested like never before in Judge Lee's courtroom. So far, the cherished rights are on the losing side.

The only consolation--if there is any at all--is that at least the government was forced to bring Abu Ali to the U.S. so that we can see what it is doing to one of its citizens. In the future, Americans may be sitting in one of those underground interrogation cells in a CIA prison. We won't know their names, and they won't be heard from again.

Posted by Elaine Cassel at November 9, 2005 5:03 PM

 

FBI Conducting Widespread Surveillance on Americans

As I have been predicting since the passage of the Patriot Act, the FBI is using "security letters" to conduct widespread surveillance of tens of thousands of Americans. The letters are simply demands from FBI Field Officers, for businesses, health care providers, libraries, banks, etc. to turn over records of individuals. Many businesses comply without awareness that the requests are outside the scope of the law. They are afraid to be considered unpatriotic by protesting. But as this Washington Post article shows, much of what is asked has nothing to do with terrorism. If you were in Las Vegas New Year's Eve 2003, the government has a file on you. It knows everything you did during that holiday period, and with whom you did it. And that may just be the beginning. To that file, the FBI will add everything it can find out about you from electronic records.

washingtonpost.com
The FBI's Secret Scrutiny
In Hunt for Terrorists, Bureau Examines Records of Ordinary Americans

By Barton Gellman
Washington Post Staff Writer
Sunday, November 6, 2005; A01

The FBI came calling in Windsor, Conn., this summer with a document marked for delivery by hand. On Matianuk Avenue, across from the tennis courts, two special agents found their man. They gave George Christian the letter, which warned him to tell no one, ever, what it said.

Under the shield and stars of the FBI crest, the letter directed Christian to surrender "all subscriber information, billing information and access logs of any person" who used a specific computer at a library branch some distance away. Christian, who manages digital records for three dozen Connecticut libraries, said in an affidavit that he configures his system for privacy. But the vendors of the software he operates said their databases can reveal the Web sites that visitors browse, the e-mail accounts they open and the books they borrow.

Christian refused to hand over those records, and his employer, Library Connection Inc., filed suit for the right to protest the FBI demand in public. The Washington Post established their identities -- still under seal in the U.S. Court of Appeals for the 2nd Circuit -- by comparing unsealed portions of the file with public records and information gleaned from people who had no knowledge of the FBI demand.

The Connecticut case affords a rare glimpse of an exponentially growing practice of domestic surveillance under the USA Patriot Act, which marked its fourth anniversary on Oct. 26. "National security letters," created in the 1970s for espionage and terrorism investigations, originated as narrow exceptions in consumer privacy law, enabling the FBI to review in secret the customer records of suspected foreign agents. The Patriot Act, and Bush administration guidelines for its use, transformed those letters by permitting clandestine scrutiny of U.S. residents and visitors who are not alleged to be terrorists or spies.

The FBI now issues more than 30,000 national security letters a year, according to government sources, a hundredfold increase over historic norms. The letters -- one of which can be used to sweep up the records of many people -- are extending the bureau's reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans.

Issued by FBI field supervisors, national security letters do not need the imprimatur of a prosecutor, grand jury or judge. They receive no review after the fact by the Justice Department or Congress. The executive branch maintains only statistics, which are incomplete and confined to classified reports. The Bush administration defeated legislation and a lawsuit to require a public accounting, and has offered no example in which the use of a national security letter helped disrupt a terrorist plot.

The burgeoning use of national security letters coincides with an unannounced decision to deposit all the information they yield into government data banks -- and to share those private records widely, in the federal government and beyond. In late 2003, the Bush administration reversed a long-standing policy requiring agents to destroy their files on innocent American citizens, companies and residents when investigations closed. Late last month, President Bush signed Executive Order 13388, expanding access to those files for "state, local and tribal" governments and for "appropriate private sector entities," which are not defined.

National security letters offer a case study of the impact of the Patriot Act outside the spotlight of political debate. Drafted in haste after the Sept. 11, 2001, attacks, the law's 132 pages wrought scores of changes in the landscape of intelligence and law enforcement. Many received far more attention than the amendments to a seemingly pedestrian power to review "transactional records." But few if any other provisions touch as many ordinary Americans without their knowledge.

Senior FBI officials acknowledged in interviews that the proliferation of national security letters results primarily from the bureau's new authority to collect intimate facts about people who are not suspected of any wrongdoing. Criticized for failure to detect the Sept. 11 plot, the bureau now casts a much wider net, using national security letters to generate leads as well as to pursue them. Casual or unwitting contact with a suspect -- a single telephone call, for example -- may attract the attention of investigators and subject a person to scrutiny about which he never learns.

A national security letter cannot be used to authorize eavesdropping or to read the contents of e-mail. But it does permit investigators to trace revealing paths through the private affairs of a modern digital citizen. The records it gathers describe where a person makes and spends money, with whom he lives and lived before, how much he gambles, what he buys online, what he pawns and borrows, where he travels, how he invests, what he searches for and reads on the Web, and who telephones or e-mails him at home and at work.

As it wrote the Patriot Act four years ago, Congress bought time and leverage for oversight by placing an expiration date on 16 provisions. The changes involving national security letters were not among them. In fact, as the Dec. 31 deadline approaches and Congress prepares to renew or make permanent the expiring provisions, House and Senate conferees are poised again to amplify the FBI's power to compel the secret production of private records.

The House and Senate have voted to make noncompliance with a national security letter a criminal offense. The House would also impose a prison term for breach of secrecy.

Like many Patriot Act provisions, the ones involving national security letters have been debated in largely abstract terms. The Justice Department has offered Congress no concrete information, even in classified form, save for a partial count of the number of letters delivered. The statistics do not cover all forms of national security letters or all U.S. agencies making use of them.

"The beef with the NSLs is that they don't have even a pretense of judicial or impartial scrutiny," said former representative Robert L. Barr Jr. (Ga.), who finds himself allied with the American Civil Liberties Union after a career as prosecutor, CIA analyst and conservative GOP stalwart. "There's no checks and balances whatever on them. It is simply some bureaucrat's decision that they want information, and they can basically just go and get it."

'A Routine Tool'

Career investigators and Bush administration officials emphasized, in congressional testimony and interviews for this story, that national security letters are for hunting terrorists, not fishing through the private lives of the innocent. The distinction is not as clear in practice.

Under the old legal test, the FBI had to have "specific and articulable" reasons to believe the records it gathered in secret belonged to a terrorist or a spy. Now the bureau needs only to certify that the records are "sought for" or "relevant to" an investigation "to protect against international terrorism or clandestine intelligence activities."

That standard enables investigators to look for conspirators by sifting the records of nearly anyone who crosses a suspect's path.

"If you have a list of, say, 20 telephone numbers that have come up . . . on a bad guy's telephone," said Valerie E. Caproni, the FBI's general counsel, "you want to find out who he's in contact with." Investigators will say, " 'Okay, phone company, give us subscriber information and toll records on these 20 telephone numbers,' and that can easily be 100."

Bush administration officials compare national security letters to grand jury subpoenas, which are also based on "relevance" to an inquiry. There are differences. Grand juries tend to have a narrower focus because they investigate past conduct, not the speculative threat of unknown future attacks. Recipients of grand jury subpoenas are generally free to discuss the subpoenas publicly. And there are strict limits on sharing grand jury information with government agencies.

Since the Patriot Act, the FBI has dispersed the authority to sign national security letters to more than five dozen supervisors -- the special agents in charge of field offices, the deputies in New York, Los Angeles and Washington, and a few senior headquarters officials. FBI rules established after the Patriot Act allow the letters to be issued long before a case is judged substantial enough for a "full field investigation." Agents commonly use the letters now in "preliminary investigations" and in the "threat assessments" that precede a decision whether to launch an investigation.

"Congress has given us this tool to obtain basic telephone data, basic banking data, basic credit reports," said Caproni, who is among the officials with signature authority. "The fact that a national security letter is a routine tool used, that doesn't bother me."

If agents had to wait for grounds to suspect a person of ill intent, said Joseph Billy Jr., the FBI's deputy assistant director for counterterrorism, they would already know what they want to find out with a national security letter. "It's all chicken and egg," he said. "We're trying to determine if someone warrants scrutiny or doesn't."

Billy said he understands that "merely being in a government or FBI database . . . gives everybody, you know, neck hair standing up." Innocent Americans, he said, "should take comfort at least knowing that it is done under a great deal of investigative care, oversight, within the parameters of the law."

He added: "That's not going to satisfy a majority of people, but . . . I've had people say, you know, 'Hey, I don't care, I've done nothing to be concerned about. You can have me in your files and that's that.' Some people take that approach."

'Don't Go Overboard'

In Room 7975 of the J. Edgar Hoover Building, around two corners from the director's suite, the chief of the FBI's national security law unit sat down at his keyboard about a month after the Patriot Act became law. Michael J. Woods had helped devise the FBI wish list for surveillance powers. Now he offered a caution.

"NSLs are powerful investigative tools, in that they can compel the production of substantial amounts of relevant information," he wrote in a Nov. 28, 2001, "electronic communication" to the FBI's 56 field offices. "However, they must be used judiciously." Standing guidelines, he wrote, "require that the FBI accomplish its investigations through the 'least intrusive' means. . . . The greater availability of NSLs does not mean that they should be used in every case."

Woods, who left government service in 2002, added a practical consideration. Legislators granted the new authority and could as easily take it back. When making that decision, he wrote, "Congress certainly will examine the manner in which the FBI exercised it."

Looking back last month, Woods was struck by how starkly he misjudged the climate. The FBI disregarded his warning, and no one noticed.

"This is not something that should be automatically done because it's easy," he said. "We need to be sure . . . we don't go overboard."

One thing Woods did not anticipate was then-Attorney General John D. Ashcroft's revision of Justice Department guidelines. On May 30, 2002, and Oct. 31, 2003, Ashcroft rewrote the playbooks for investigations of terrorist crimes and national security threats. He gave overriding priority to preventing attacks by any means available.

Ashcroft remained bound by Executive Order 12333, which requires the use of the "least intrusive means" in domestic intelligence investigations. But his new interpretation came close to upending the mandate. Three times in the new guidelines, Ashcroft wrote that the FBI "should consider . . . less intrusive means" but "should not hesitate to use any lawful techniques . . . even if intrusive" when investigators believe them to be more timely. "This point," he added, "is to be particularly observed in investigations relating to terrorist activities."

'Why Do You Want to Know?'

As the Justice Department prepared congressional testimony this year, FBI headquarters searched for examples that would show how expanded surveillance powers made a difference. Michael Mason, who runs the Washington field office and has the rank of assistant FBI director, found no ready answer.

"I'd love to have a made-for-Hollywood story, but I don't have one," Mason said. "I am not even sure such an example exists."

What national security letters give his agents, Mason said, is speed.

"I have 675 terrorism cases," he said. "Every one of these is a potential threat. And anything I can do to get to the bottom of any one of them more quickly gets me closer to neutralizing a potential threat."

Because recipients are permanently barred from disclosing the letters, outsiders can make no assessment of their relevance to Mason's task.

Woods, the former FBI lawyer, said secrecy is essential when an investigation begins because "it would defeat the whole purpose" to tip off a suspected terrorist or spy, but national security seldom requires that the secret be kept forever. Even mobster "John Gotti finds out eventually that he was wiretapped" in a criminal probe, said Peter Swire, the federal government's chief privacy counselor until 2001. "Anyone caught up in an NSL investigation never gets notice."

To establish the "relevance" of the information they seek, agents face a test so basic it is hard to come up with a plausible way to fail. A model request for a supervisor's signature, according to internal FBI guidelines, offers this one-sentence suggestion: "This subscriber information is being requested to determine the individuals or entities that the subject has been in contact with during the past six months."

Edward L. Williams, the chief division counsel in Mason's office, said that supervisors, in practice, "aren't afraid to ask . . . 'Why do you want to know?' " He would not say how many requests, if any, are rejected.

'The Abuse Is in the Power Itself'

Those who favor the new rules maintain -- as Sen. Pat Roberts (R-Kan.), chairman of the Senate Select Committee on Intelligence, put it in a prepared statement -- that "there has not been one substantiated allegation of abuse of these lawful intelligence tools."

What the Bush administration means by abuse is unauthorized use of surveillance data -- for example, to blackmail an enemy or track an estranged spouse. Critics are focused elsewhere. What troubles them is not unofficial abuse but the official and routine intrusion into private lives.

To Jeffrey Breinholt, deputy chief of the Justice Department's counterterrorism section, the civil liberties objections "are eccentric." Data collection on the innocent, he said, does no harm unless "someone [decides] to act on the information, put you on a no-fly list or something." Only a serious error, he said, could lead the government, based on nothing more than someone's bank or phone records, "to freeze your assets or go after you criminally and you suffer consequences that are irreparable." He added: "It's a pretty small chance."

"I don't necessarily want somebody knowing what videos I rent or the fact that I like cartoons," said Mason, the Washington field office chief. But if those records "are never used against a person, if they're never used to put him in jail, or deprive him of a vote, et cetera, then what is the argument?"

Barr, the former congressman, said that "the abuse is in the power itself."

"As a conservative," he said, "I really resent an administration that calls itself conservative taking the position that the burden is on the citizen to show the government has abused power, and otherwise shut up and comply."

At the ACLU, staff attorney Jameel Jaffer spoke of "the profound chilling effect" of this kind of surveillance: "If the government monitors the Web sites that people visit and the books that they read, people will stop visiting disfavored Web sites and stop reading disfavored books. The FBI should not have unchecked authority to keep track of who visits [al-Jazeera's Web site] or who visits the Web site of the Federalist Society."

Links in a Chain

Ready access to national security letters allows investigators to employ them routinely for "contact chaining."

"Starting with your bad guy and his telephone number and looking at who he's calling, and [then] who they're calling," the number of people surveilled "goes up exponentially," acknowledged Caproni, the FBI's general counsel.

But Caproni said it would not be rational for the bureau to follow the chain too far. "Everybody's connected" if investigators keep tracing calls "far enough away from your targeted bad guy," she said. "What's the point of that?"

One point is to fill government data banks for another investigative technique. That one is called "link analysis," a practice Caproni would neither confirm nor deny.

Two years ago, Ashcroft rescinded a 1995 guideline directing that information obtained through a national security letter about a U.S. citizen or resident "shall be destroyed by the FBI and not further disseminated" if it proves "not relevant to the purposes for which it was collected." Ashcroft's new order was that "the FBI shall retain" all records it collects and "may disseminate" them freely among federal agencies.

The same order directed the FBI to develop "data mining" technology to probe for hidden links among the people in its growing cache of electronic files. According to an FBI status report, the bureau's office of intelligence began operating in January 2004 a new Investigative Data Warehouse, based on the same Oracle technology used by the CIA. The CIA is generally forbidden to keep such files on Americans.

Data mining intensifies the impact of national security letters, because anyone's personal files can be scrutinized again and again without a fresh need to establish relevance.

"The composite picture of a person which emerges from transactional information is more telling than the direct content of your speech," said Woods, the former FBI lawyer. "That's certainly not been lost on the intelligence community and the FBI."

Ashcroft's new guidelines allowed the FBI for the first time to add to government files consumer data from commercial providers such as LexisNexis and ChoicePoint Inc. Previous attorneys general had decided that such a move would violate the Privacy Act. In many field offices, agents said, they now have access to ChoicePoint in their squad rooms.

What national security letters add to government data banks is information that no commercial service can lawfully possess. Strict privacy laws, for example, govern financial and communications records. National security letters -- along with the more powerful but much less frequently used secret subpoenas from the Foreign Intelligence Surveillance Court -- override them.

'What Happens in Vegas'

The bureau displayed its ambition for data mining in an emergency operation at the end of 2003.

The Department of Homeland Security declared an orange alert on Dec. 21 of that year, in part because of intelligence that hinted at a New Year's Eve attack in Las Vegas. The identities of the plotters were unknown.

The FBI sent Gurvais Grigg, chief of the bureau's little-known Proactive Data Exploitation Unit, in an audacious effort to assemble a real-time census of every visitor in the nation's most-visited city. An average of about 300,000 tourists a day stayed an average of four days each, presenting Grigg's team with close to a million potential suspects in the ensuing two weeks.

A former stockbroker with a degree in biochemistry, Grigg declined to be interviewed. Government and private sector sources who followed the operation described epic efforts to vacuum up information.

An interagency task force began pulling together the records of every hotel guest, everyone who rented a car or truck, every lease on a storage space, and every airplane passenger who landed in the city. Grigg's unit filtered that population for leads. Any link to the known terrorist universe -- a shared address or utility account, a check deposited, a telephone call -- could give investigators a start.

"It was basically a manhunt, and in circumstances where there is a manhunt, the most effective way of doing that was to scoop up a lot of third party data and compare it to other data we were getting," Breinholt said.

Investigators began with emergency requests for help from the city's sprawling hospitality industry. "A lot of it was done voluntary at first," said Billy, the deputy assistant FBI director.

According to others directly involved, investigators turned to national security letters and grand jury subpoenas when friendly persuasion did not work.

Early in the operation, according to participants, the FBI gathered casino executives and asked for guest lists. The MGM Mirage company, followed by others, balked.

"Some casinos were saying no to consent [and said], 'You have to produce a piece of paper,' " said Jeff Jonas, chief scientist at IBM Entity Analytics, who previously built data management systems for casino surveillance. "They don't just market 'What happens in Vegas stays in Vegas.' They want it to be true."

The operation remained secret for about a week. Then casino sources told Rod Smith, gaming editor of the Las Vegas Review-Journal, that the FBI had served national security letters on them. In an interview for this article, one former casino executive confirmed the use of a national security letter. Details remain elusive. Some law enforcement officials, speaking on the condition of anonymity because they had not been authorized to divulge particulars, said they relied primarily on grand jury subpoenas. One said in an interview that national security letters may eventually have been withdrawn. Agents encouraged voluntary disclosures, he said, by raising the prospect that the FBI would use the letters to gather something more sensitive: the gambling profiles of casino guests. Caproni declined to confirm or deny that account.

What happened in Vegas stayed in federal data banks. Under Ashcroft's revised policy, none of the information has been purged. For every visitor, Breinholt said, "the record of the Las Vegas hotel room would still exist."

Grigg's operation found no suspect, and the orange alert ended on Jan. 10, 2004."The whole thing washed out," one participant said.

'Of Interest to President Bush'

At around the time the FBI found George Christian in Connecticut, agents from the bureau's Charlotte field office paid an urgent call on the chemical engineering department at North Carolina State University in Raleigh. They were looking for information about a former student named Magdy Nashar, then suspected in the July 7 London subway bombing but since cleared of suspicion.

University officials said in interviews late last month that the FBI tried to use a national security letter to demand much more information than the law allows.

David T. Drooz, the university's senior associate counsel, said special authority is required for the surrender of records protected by educational and medical privacy. The FBI's first request, a July 14 grand jury subpoena, did not appear to supply that authority, Drooz said, and the university did not honor it. Referring to notes he took that day, Drooz said Eric Davis, the FBI's top lawyer in Charlotte, "was focused very much on the urgency" and "he even indicated the case was of interest to President Bush."

The next day, July 15, FBI agents arrived with a national security letter. Drooz said it demanded all records of Nashar's admission, housing, emergency contacts, use of health services and extracurricular activities. University lawyers "looked up what law we could on the fly," he said. They discovered that the FBI was demanding files that national security letters have no power to obtain. The statute the FBI cited that day covers only telephone and Internet records.

"We're very eager to comply with the authorities in this regard, but we needed to have what we felt was a legally valid procedure," said Larry A. Neilsen, the university provost.

Soon afterward, the FBI returned with a new subpoena. It was the same as the first one, Drooz said, and the university still had doubts about its legal sufficiency. This time, however, it came from New York and summoned Drooz to appear personally. The tactic was "a bit heavy-handed," Drooz said, "the implication being you're subject to contempt of court." Drooz surrendered the records.

The FBI's Charlotte office referred questions to headquarters. A high-ranking FBI official, who spoke on the condition of anonymity, acknowledged that the field office erred in attempting to use a national security letter. Investigators, he said, "were in a big hurry for obvious reasons" and did not approach the university "in the exact right way."

'Unreasonable' or 'Oppressive'

The electronic docket in the Connecticut case, as the New York Times first reported, briefly titled the lawsuit Library Connection Inc. v. Gonzales . Because identifying details were not supposed to be left in the public file, the court soon replaced the plaintiff's name with "John Doe."

George Christian, Library Connection's executive director, is identified in his affidavit as "John Doe 2." In that sworn statement, he said people often come to libraries for information that is "highly sensitive, embarrassing or personal." He wanted to fight the FBI but feared calling a lawyer because the letter said he could not disclose its existence to "any person." He consulted Peter Chase, vice president of Library Connection and chairman of a state intellectual freedom committee. Chase -- "John Doe 1" in his affidavit -- advised Christian to call the ACLU. Reached by telephone at their homes, both men declined to be interviewed.

U.S. District Judge Janet C. Hall ruled in September that the FBI gag order violates Christian's, and Library Connection's, First Amendment rights. A three-judge panel heard oral argument on Wednesday in the government's appeal.

The central facts remain opaque, even to the judges, because the FBI is not obliged to describe what it is looking for, or why. During oral argument in open court on Aug. 31, Hall said one government explanation was so vague that "if I were to say it out loud, I would get quite a laugh here." After the government elaborated in a classified brief delivered for her eyes only, she wrote in her decision that it offered "nothing specific."

The Justice Department tried to conceal the existence of the first and only other known lawsuit against a national security letter, also brought by the ACLU's Jaffer and Ann Beeson. Government lawyers opposed its entry into the public docket of a New York federal judge. They have since tried to censor nearly all contents of the exhibits and briefs. They asked the judge, for example, to black out every line of the affidavit that describes the delivery of the national security letter to a New York Internet company, including, "I am a Special Agent of the Federal Bureau of Investigation ('FBI')."

U.S. District Judge Victor Marrero, in a ruling that is under appeal, held that the law authorizing national security letters violates the First and Fourth Amendments.

Resistance to national security letters is rare. Most of them are served on large companies in highly regulated industries, with business interests that favor cooperation. The in-house lawyers who handle such cases, said Jim Dempsey, executive director of the Center for Democracy and Technology, "are often former prosecutors -- instinctively pro-government but also instinctively by-the-books." National security letters give them a shield against liability to their customers.

Kenneth M. Breen, a partner at the New York law firm Fulbright & Jaworski, held a seminar for corporate lawyers one recent evening to explain the "significant risks for the non-compliant" in government counterterrorism investigations. A former federal prosecutor, Breen said failure to provide the required information could create "the perception that your company didn't live up to its duty to fight terrorism" and could invite class-action lawsuits by families of terrorism victims. In extreme cases, he said, a business could face criminal prosecution, "a 'death sentence' for certain kinds of companies."

The volume of government information demands, even so, has provoked a backlash. Several major business groups, including the National Association of Manufacturers and the U.S. Chamber of Commerce, complained in an Oct. 4 letter to senators that customer records can "too easily be obtained and disseminated" around the government. National security letters, they wrote, have begun to impose an "expensive and time-consuming burden" on business.

The House and Senate bills renewing the Patriot Act do not tighten privacy protections, but they offer a concession to business interests. In both bills, a judge may modify a national security letter if it imposes an "unreasonable" or "oppressive" burden on the company that is asked for information.

'A Legitimate Question'

As national security letters have grown in number and importance, oversight has not kept up. In each house of Congress, jurisdiction is divided between the judiciary and intelligence committees. None of the four Republican chairmen agreed to be interviewed.

Roberts, the Senate intelligence chairman, said in a statement issued through his staff that "the committee is well aware of the intelligence value of the information that is lawfully collected under these national security letter authorities," which he described as "non-intrusive" and "crucial to tracking terrorist networks and detecting clandestine intelligence activities." Senators receive "valuable reporting by the FBI," he said, in "semi-annual reports [that] provide the committee with the information necessary to conduct effective oversight."

Roberts was referring to the Justice Department's classified statistics, which in fact have been delivered three times in four years. They include the following information: how many times the FBI issued national security letters; whether the letters sought financial, credit or communications records; and how many of the targets were "U.S. persons." The statistics omit one whole category of FBI national security letters and also do not count letters issued by the Defense Department and other agencies.

Committee members have occasionally asked to see a sampling of national security letters, a description of their fruits or examples of their contribution to a particular case. The Justice Department has not obliged.

In 2004, the conference report attached to the intelligence authorization bill asked the attorney general to "include in his next semiannual report" a description of "the scope of such letters" and the "process and standards for approving" them. More than a year has passed without a Justice Department reply.

"The committee chairman has the power to issue subpoenas" for information from the executive branch, said Rep. Zoe Lofgren (D-Calif.), a House Judiciary Committee member. "The minority has no power to compel, and . . . Republicans are not going to push for oversight of the Republicans. That's the story of this Congress."

In the executive branch, no FBI or Justice Department official audits the use of national security letters to assess whether they are appropriately targeted, lawfully applied or contribute important facts to an investigation.

Justice Department officials noted frequently this year that Inspector General Glenn A. Fine reports twice a year on abuses of the Patriot Act and has yet to substantiate any complaint. (One investigation is pending.) Fine advertises his role, but there is a puzzle built into the mandate. Under what scenario could a person protest a search of his personal records if he is never notified?

"We do rely upon complaints coming in," Fine said in House testimony in May. He added: "To the extent that people do not know of anything happening to them, there is an issue about whether they can complain. So, I think that's a legitimate question."

Asked more recently whether Fine's office has conducted an independent examination of national security letters, Deputy Inspector General Paul K. Martin said in an interview: "We have not initiated a broad-based review that examines the use of specific provisions of the Patriot Act."

At the FBI, senior officials said the most important check on their power is that Congress is watching.

"People have to depend on their elected representatives to do the job of oversight they were elected to do," Caproni said. "And we think they do a fine job of it."

Researcher Julie Tate and research editor Lucy Shackelford contributed to this report.

Posted by Elaine Cassel at November 5, 2005 9:57 PM

 

Michael Brown's Emails

Concerned about wardrobe and his dogs, Michael Brown preened while New Orleans sank. Should have gotten out of the job sooner, he sighs. True, and once again Congress was MIA when they approved this loser as head of FEMA.

http://blogs.citypages.com/ecassel/2005/10/index.asp

Posted by Elaine Cassel at November 3, 2005 3:25 PM

 

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