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Paul Merrell

Resurrecting the Dubious State Secrets Privilege | John Dean | Verdict | Legal Analysis... - 0 views

verdict.justia.com/...ubious-state-secrets-privilege

Dark-State state-secrets government secrecy Restis DoJ Holder

shared by Paul Merrell on 19 Sep 14 - No Cached
  • In an unusual move, the U.S. Department of Justice has filed a motion to make a private lawsuit simply disappear. While the U.S. Government is not a party to this defamation lawsuit—Victor Restis et al. v. American Coalition Against Nuclear Iran, Inc.—filed July 19, 2013, in the U.S. District Court for the Southern District of New York, Attorney General Eric Holder is concerned that the discovery being undertaken might jeopardize our national security.
  • The government’s argument for intervening in this lawsuit is technical and thin.
  • The strongest precedent in the government’s brief in the current case is the 1985 case of Fitzgerald v. Penthouse Intern., Ltd. Fitzgerald had sued Penthouse Magazine for an allegedly libelous article, but the U.S. Navy moved to intervene on the ground that the government had a national security interest which would not be adequately protected by the parties, so the government requested the action be dismissed, after invoking the state secrets privilege. The federal district court granted the motions and dismissed the case, which the U.S. Court of Appeals for Fourth Circuit affirmed. So there is precedent for this unusual action by the government in a private lawsuit, but the legitimacy of the state secrets privilege remains subject to question.
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  • In February 2000, Judith Loether, a daughter of one of the three civilians killed in the 1948 B-29 explosion, discovered the government’s once-secret accident report for the incident on the Internet. Loether had been seven weeks old when her father died but been told by her mother what was known of her father’s death and the unsuccessful efforts to find out what had truly happened. When Loether read the accident report she was stunned. There were no national security secrets whatsoever, rather there was glaringly clear evidence of the government’s negligence resulting in her father’s death. Loether shared this information with the families of the other civilian engineers who had been killed in the incident and they joined together in a legal action to overturn Reynolds, raising the fact that the executive branch of the government had misled the Supreme Court, not to mention the parties to the earlier lawsuit.
  • Lou Fisher looked closely at the state secrets privilege in his book In The Name of National Security, as well as in follow-up articles when the Reynolds case was litigated after it was discovered, decades after the fact, that the government had literally defrauded the Supreme Court in Reynolds, e.g., “The State Secrets Privilege: Relying on Reynolds.” The Reynolds ruling emerged from litigation initiated by the widows of three civilian engineers who died in a midair explosion of a B-29 bomber on October 6, 1948. The government refused to provide the widows with the government’s accident report. On March 9, 1953, the Supreme Court created the state secrets privilege when agreeing the accident report did not have to be produced since the government claimed it contained national security secrets. In fact, none of the federal judges in the lower courts, nor the justices on the Supreme Court, were allowed to read the report.
  • Lowell states in his letter: “By relying solely upon ex parte submissions to justify its invocation of the state secrets privilege, especially in the unprecedented circumstance of private party litigation without an obvious government interest, the Government has improperly invoked the state secrets privilege, deprived Plaintiffs of the opportunity to test the Government’s claims through the adversarial process, and limited the Court’s opportunity to make an informed judgment. “ Lowell further claims that in “the typical state secrets case, the Government will simultaneously file both a sealed declaration and a detailed public declaration.” (Emphasis in Lowell’s letter.) To bolster this contention, he provided the court with an example, and offered to provide additional examples if so requested.
  • The Justice Department’s memorandum of law accompanying its motion to intervene states that once the state secrets privilege has been asserted “by the head of the department with control over the matter in question . . . the scope of judicial review is quite narrow.” Quoting from the U.S. Supreme Court ruling establishing this privilege in 1953, U.S. v. Reynolds, the brief adds: “the sole determination for the court is whether, ‘from all the circumstances of the case . . . there is a reasonable danger that compulsion of the evidence will expose military [or other] matters which, in the interest of national security, should not be divulged.’”In short, all the Justice Department need claim is the magic phrase—”state secrets”—after assuring the court that the head of department or agency involved has personally decided it is information that cannot be released. That ends the matter. This is what has made this privilege so controversial, not to mention dubious. Indeed, invocation by the executive branch effectively removes the question from judicial determination, and the information underlying the decision is not even provided to the court.
  • As Fisher and other scholars note, there is much more room under the Reynolds ruling for the court to take a hard look at the evidence when the government claims state secrets than has been common practice. Fisher reminds: “The state secrets privilege is qualified, not absolute. Otherwise there is no adversary process in court, no exercise of judicial independence over what evidence is needed, and no fairness accorded to private litigants who challenge the government . . . . There is no justification in law or history for a court to acquiesce to the accuracy of affidavits, statements, and declarations submitted by the executive branch.” Indeed, he noted to do so is contrary to our constitutional system of checks and balances.
  • Time to Reexamine Blind Adherence to the State Secrets PrivilegeIn responding to the government’s move to intervene, invoke state secrets, and dismiss the Restis lawsuit, plaintiffs’ attorney Abbe Lowell sent a letter to Judge Edgardo Ramos, the presiding judge on the case on September 17, 2014, contesting the Department of Justice’s ex parte filings, and requesting that Judge Ramos “order the Government to file a public declaration in support of its filing that will enable Plaintiffs to meaningfully respond.” Lowell also suggested as an alternative that he “presently holds more than sufficient security clearances to be given access to the ex parte submission,” and the court could do here as in other national security cases, and issue a protective order that the information not be shared with anyone. While Lowell does not so state, he is in effect taking on the existing state secrets privilege procedure where only the government knows what is being withheld and why, and he is taking on Reynolds.
  • To make a long story short, the Supreme Court was more interested in the finality of their decisions than the fraud that had been perpetrated upon them. They rejected the direct appeal, and efforts to relegate the case through the lower courts failed. As Fisher notes, the Court ruled in Reynolds based on “vapors and allusions,” rather than facts and evidence, and today it is clear that when it uncritically accepted the government’s word, the Court abdicated its duty to protect the ability of each party to present its case fairly, not to mention it left the matter under the control of a “self-interested executive” branch.
  • Lowell explains it is not clear—and suggests the government is similarly unclear in having earlier suggested a “law enforcement privilege”—as to why the state secrets privilege is being invoked, and argues this case can be tried without exposing government secrets. Citing the Fitzgerald ruling, Lowell points out dismissal is appropriate “[o]nly when no amount of effort and care on the part of the court and the parties will safeguard privileged material is dismissal warranted.”
  • No telling how Judge Ramos will rule, and the government has a remarkable record of prevailing with the deeply flawed state secrets privilege. But Lowell’s letter appears to say, between the lines, that he has a client who is prepared to test this dubious privilege and the government’s use of it in this case if Judge Ramos dismisses this lawsuit. The U.S. Court of Appeals for the Second Circuit, where that ruling would be reviewed, sees itself every bit the intellectual equal of the U.S. Supreme Court and it is uniquely qualified to give this dubious privilege and the Reynolds holding a reexamination. It is long past time this be done.
  • Paul Merrell on 19 Sep 14
     
    Interesting take on the Restis case by former Nixon White House Counsel John Dean. Where the State Secrets Privilege is at its very nastiest, in my opinion, is in criminal prosecutions where the government withholds potentially exculpatory evidence on grounds of state secrecy. I think the courts have been far too lenient in allowing people to be tried without production of such evidence. The work-around in the Guantanamo Bay inmate cases has been to appoint counsel who have security clearances, but in those cases the lawyer is forbidden from discussing the classified information with the client, who could have valuable input if advised what the evidence is. It's also incredibly unfair in the extraordinary rendition cases, where the courts have let the government get away with having the cases dismissed on state secrecy grounds, even though the tortures have been the victim of criminal official misconduct.  It forces the victims to appeal clear to the Supreme Court before they can start over in an international court with jurisdiction over human rights violations, where the government loses because of its refusal to produce the evidence.  (Under the relevant treaties that the U.S. is a party to, the U.S. is required to provide a judicial remedy without resort to claims of national security secrecy.) Then the U.S. refuses to pay the judgments of the International courts, placing the U.S. in double breach of its treaty obligations. We see the same kinds of outrageous secrecy playing out in the Senate Intellience Committee's report on CIA torture, where the Obama Administration is using state secrecy claims to delay release of the report summary and minimize what is in it. It's highly unlikely that I will live long enough to read the full report. And that just is not democracy in action. Down with the Dark State!   
Paul Merrell

Has the NSA Wiretapping Violated Attorney-Client Privilege? | The Nation - 0 views

www.thenation.com/...ated-attorney-client-privilege

surveillance state NSA-targets attorney-client-privilege must-read

shared by Paul Merrell on 05 Feb 14 - No Cached
  • The first time Adis Medunjanin tried to call Robert C. Gottlieb in mid-2009, Gottlieb was out of the office. Medunjanin was agitated. He had to speak to an attorney. Gottlieb’s assistant told him Gottlieb would be back soon. When Medunjanin spoke to the lawyer a little later, he was told he might need legal representation. He thought he might be under investigation. Over the next six months and in forty-two phone calls, Medunjanin sought legal advice from Gottlieb. When he was arrested in January 2010 on charges that he tried to bomb the New York subway, it was Gottlieb who defended him, receiving security clearance to review government documents pertinent to the case in the process. Gottlieb was preparing Medunjanin’s defense when a federal officer in charge of information distribution e-mailed him that there was new classified information he needed to review at the US Eastern District Court in Brooklyn. “I went over to the Brooklyn Federal courthouse, went up to the secured room, gained entry with the secret security codes, opened the file cabinet that is also secure and in the second drawer was a CD,” Gottlieb told me. On that CD were recordings of every single one of his forty-two phone calls with Medunjanin before he was taken into custody and indicted on January 7, 2010.
  • Such calls are normally sacrosanct under the principle of attorney-client privilege, the ability to speak confidentially with your lawyer. But a leak to The Guardian last summer of National Security Agency (NSA) procedures that are supposed to protect privileged calls showed that some attorney-client privileged calls are not subject to internal rules that detail the instances when a wiretap should be turned off. A later version of the procedures declassified by the NSA last August contains the same language. These “minimization” procedures, as they are known, are the rules and regulations for wiretaps under the Foreign Intelligence Surveillance Act (FISA). They tell NSA agents when they can listen, and when they have to turn the tap off, when they can record and when they should not be recording. There are rules for which kinds of communications can be monitored—for example, domestic communications are off limits, although communications from agents of foreign powers and suspected terrorists don’t count as domestic—and there is a section that provides for the protection of attorney-client calls.
  • Section four of the declassified 2011 guidelines is the part of that document that governs wiretapping attorney-client calls. At first glance, it seems quite clear: when the agent realizes that he or she is monitoring an attorney-client communication, “monitoring of that communication will cease and the communication will be identified as an attorney-client communication in a log maintained for that purpose.” But given a second reading, section four doesn’t apply to all attorney-client calls. It provides only for the minimization (and protection) of the calls of “a person who is known to be under criminal indictment in the United States”—someone who has already been charged under US law. This is because indicted persons have a Sixth Amendment right to counsel. People who aren’t indicted don’t have this right, and so their calls are not minimized. When I asked an NSA press officer, Vanee’ M. Vines, how attorney-client privilege was protected, she referred me to the Department of Justice. I left several messages, but the DOJ never contacted me back.
Paul Merrell

Spying by N.S.A. Ally Entangled U.S. Law Firm - NYTimes.com - 0 views

www.nytimes.com/...nsnared-american-law-firm.html

surveillance state NSA ASD NSA-targets law-firms

shared by Paul Merrell on 21 Feb 14 - No Cached
  • The list of those caught up in the global surveillance net cast by the National Security Agency and its overseas partners, from social media users to foreign heads of state, now includes another entry: American lawyers. A top-secret document, obtained by the former N.S.A. contractor Edward J. Snowden, shows that an American law firm was monitored while representing a foreign government in trade disputes with the United States. The disclosure offers a rare glimpse of a specific instance in which Americans were ensnared by the eavesdroppers, and is of particular interest because lawyers in the United States with clients overseas have expressed growing concern that their confidential communications could be compromised by such surveillance. Related Coverage Text: Document Describes Eavesdropping on American Law FirmFEB. 15, 2014 The government of Indonesia had retained the law firm for help in trade talks, according to the February 2013 document. It reports that the N.S.A.’s Australian counterpart, the Australian Signals Directorate, notified the agency that it was conducting surveillance of the talks, including communications between Indonesian officials and the American law firm, and offered to share the information.
  • The Australians told officials at an N.S.A. liaison office in Canberra, Australia, that “information covered by attorney-client privilege may be included” in the intelligence gathering, according to the document, a monthly bulletin from the Canberra office. The law firm was not identified, but Mayer Brown, a Chicago-based firm with a global practice, was then advising the Indonesian government on trade issues. On behalf of the Australians, the liaison officials asked the N.S.A. general counsel’s office for guidance about the spying. The bulletin notes only that the counsel’s office “provided clear guidance” and that the Australian agency “has been able to continue to cover the talks, providing highly useful intelligence for interested US customers.” The N.S.A. declined to answer questions about the reported surveillance, including whether information involving the American law firm was shared with United States trade officials or negotiators.
  • Most attorney-client conversations do not get special protections under American law from N.S.A. eavesdropping. Amid growing concerns about surveillance and hacking, the American Bar Association in 2012 revised its ethics rules to explicitly require lawyers to “make reasonable efforts” to protect confidential information from unauthorized disclosure to outsiders.Last year, the Supreme Court, in a 5-to-4 decision, rebuffed a legal challenge to a 2008 law allowing warrantless wiretapping that was brought in part by lawyers with foreign clients they believed were likely targets of N.S.A. monitoring. The lawyers contended that the law raised risks that required them to take costly measures, like traveling overseas to meet clients, to protect sensitive communications. But the Supreme Court dismissed their fears as “speculative.”The N.S.A. is prohibited from targeting Americans, including businesses, law firms and other organizations based in the United States, for surveillance without warrants, and intelligence officials have repeatedly said the N.S.A. does not use the spy services of its partners in the so-called Five Eyes alliance — Australia, Britain, Canada and New Zealand — to skirt the law.
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  • The N.S.A.’s protections for attorney-client conversations are narrowly crafted, said Stephen Gillers, an expert on legal ethics at New York University’s School of Law. The agency is barred from sharing with prosecutors intercepted attorney-client communications involving someone under indictment in the United States, according to previously disclosed N.S.A. rules. But the agency may still use or share the information for intelligence purposes. Andrew M. Perlman, a Suffolk University law professor who specializes in legal ethics and technology issues, said the growth of surveillance was troubling for lawyers. He helped create the bar association’s ethics code revisions that require lawyers to try to avoid being overheard by eavesdroppers. “You run out of options very quickly to communicate with someone overseas,” he said. “Given the difficulty of finding anything that is 100 percent secure, lawyers are in a difficult spot to ensure that all of the information remains in confidence.” 
  • Still, the N.S.A. can intercept the communications of Americans if they are in contact with a foreign intelligence target abroad, such as Indonesian officials. The N.S.A. is then required to follow so-called minimization rules to protect their privacy, such as deleting the identity of Americans or information that is not deemed necessary to understand or assess the foreign intelligence, before sharing it with other agencies. An N.S.A. spokeswoman said the agency’s Office of the General Counsel was consulted when issues of potential attorney-client privilege arose and could recommend steps to protect such information. “Such steps could include requesting that collection or reporting by a foreign partner be limited, that intelligence reports be written so as to limit the inclusion of privileged material and to exclude U.S. identities, and that dissemination of such reports be limited and subject to appropriate warnings or restrictions on their use,” said Vanee M. Vines, the spokeswoman.
  • In justifying the agency’s sweeping powers, the Obama administration often emphasizes the N.S.A.’s role in fighting terrorism and cyberattacks, but disclosures in recent months from the documents leaked by Mr. Snowden show the agency routinely spies on trade negotiations, communications of economic officials in other countries and even foreign corporations.
  • Other documents obtained from Mr. Snowden reveal that the N.S.A. shares reports from its surveillance widely among civilian agencies. A 2004 N.S.A. document, for example, describes how the agency’s intelligence gathering was critical to the Agriculture Department in international trade negotiations. “The U.S.D.A. is involved in trade operations to protect and secure a large segment of the U.S. economy,” that document states. Top agency officials “often rely on SIGINT” — short for the signals intelligence that the N.S.A. eavesdropping collects — “to support their negotiations.”
  • Paul Merrell on 21 Feb 14
     
    Outrageous.
Paul Merrell

After Brit spies 'snoop' on families' lawyers, UK govt admits: We flouted human rights ... - 0 views

www.theregister.co.uk/...uk_spies_on_lawyers

surveillance state GCHQ MI5 lawyer-client-communications

shared by Paul Merrell on 15 Mar 15 - No Cached
  • The British government has admitted that its practice of spying on confidential communications between lawyers and their clients was a breach of the European Convention on Human Rights (ECHR). Details of the controversial snooping emerged in November: lawyers suing Blighty over its rendition of two Libyan families to be tortured by the late and unlamented Gaddafi regime claimed Her Majesty's own lawyers seemed to have access to the defense team's emails. The families' briefs asked for a probe by the secretive Investigatory Powers Tribunal (IPT), a move that led to Wednesday's admission. "The concession the government has made today relates to the agencies' policies and procedures governing the handling of legally privileged communications and whether they are compatible with the ECHR," a government spokesman said in a statement to the media, via the Press Association. "In view of recent IPT judgments, we acknowledge that the policies applied since 2010 have not fully met the requirements of the ECHR, specifically Article 8. This includes a requirement that safeguards are made sufficiently public."
  • The guidelines revealed by the investigation showed that MI5 – which handles the UK's domestic security – had free reign to spy on highly private and sensitive lawyer-client conversations between April 2011 and January 2014. MI6, which handles foreign intelligence, had no rules on the matter either until 2011, and even those were considered void if "extremists" were involved. Britain's answer to the NSA, GCHQ, had rules against such spying, but they too were relaxed in 2011. "By allowing the intelligence agencies free rein to spy on communications between lawyers and their clients, the Government has endangered the fundamental British right to a fair trial," said Cori Crider, a director at the non-profit Reprieve and one of the lawyers for the Libyan families. "For too long, the security services have been allowed to snoop on those bringing cases against them when they speak to their lawyers. In doing so, they have violated a right that is centuries old in British common law. Today they have finally admitted they have been acting unlawfully for years."
  • Crider said it now seemed probable that UK snoopers had been listening in on the communications over the Libyan case. The British government hasn't admitted guilt, but it has at least acknowledged that it was doing something wrong – sort of. "It does not mean that there was any deliberate wrongdoing on the part of the security and intelligence agencies, which have always taken their obligation to protect legally privileged material extremely seriously," the government spokesman said. "Nor does it mean that any of the agencies' activities have prejudiced or in any way resulted in an abuse of process in any civil or criminal proceedings. The agencies will now work with the independent Interception of Communications Commissioner to ensure their policies satisfy all of the UK's human rights obligations." So that's all right, then.
  • Paul Merrell on 15 Mar 15
     
    If you follow the "November" link you'[l learn that yes, indeed, the UK government lawyers were happily getting the content of their adversaries privileged attorney-client communications. Conspicuously, the promises of reform make no mention of what is surely a disbarment offense in the U.S. I doubt that it's different in the UK. Discovery rules of procedure strictly limit how parties may obtain information from the other side. Wiretapping the other side's lawyers is not a permitted from of discovery. Hopefully, at least the government lawyers in the case in which the misbehavior was discovered have been referred for disciplinary action.  
Gary Edwards

Liberal Activists Worked With AGs to Target Conservatives - 0 views

dailysignal.com/...th-ags-to-target-conservatives

shared by Gary Edwards on 07 May 16 - No Cached
  • violate “constitutionally protected rights of freedom of speech, freedom from unreasonable searches and seizures, and due process of law and constitute the common law tort of abuse of process.”
  • ExxonMobil also alleges that Walker’s delegation of his prosecutorial power to a private law firm “likely on a contingency-fee basis” violates basic “due process of law and fundamental fairness,” particularly because that same law firm has “pursued a bitterly contested and contentious litigation in an unrelated lawsuit against ExxonMobil … which could result in a substantial fee award if Cohen Milstein’s client were to prevail.”
  • That raises “substantial doubts about whether that firm should be permitted to serve as the ‘disinterested prosecutor’ whose impartiality is demanded by law and expected by the public.”
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  • ExxonMobil asks the Texas court to declare that the “issuance and mailing of the subpoena” violates various provisions of the U.S. Constitution, federal law, and the Texas Constitution.
  • . According to The Washington Free Beacon, “a small coalition of prominent climate change activists and political operatives” met on Jan. 8 in a closed door meeting at the Rockefeller Family Fund in Manhattan. Their agenda: taking down oil giant ExxonMobil through a coordinated campaign of legal action, divestment efforts, and political pressure.”
  • A copy of the agenda from that meeting states that two of the common goals of these activists are to “establish in public’s mind [sic.] that Exxon is a corrupt institution that has pushed humanity (and all creation) toward climate chaos and grave harm” and to “delegitimize them as a political actor.” Part of the discussion of their grand strategy was how to include “industry associations, scientists and front groups” in their targeting. And at the top of their list for “legal actions & related campaigns” was state “AGs.”
  • That last goal was apparently put into action. According to Fox News, a series of emails obtained by the Energy & Environmental Legal Institute showed communications between some of these same anti-fossil fuel activists and the attorneys general that are part of this “Green” coalition against climate change dissenters.
  • Some of them secretly briefed state attorneys general before their March press conference on arguments they could present to justify “climate change litigation” and the “imperative of taking action now.” The attorneys general and their staff tried to hide this discussion and coordination with the activists by “using a ‘Common Interest Agreement’… [that] sought to protect as privileged the discussions about defending President Obama’s controversial global warming rules, and going after political opponents using the Racketeer Influenced and Corrupt Organizations Act.”
  • Some state attorneys general have criticized the dangerous and misguided efforts of their inquisitorial peers. As Louisiana Attorney General Jeff Landry correctly states, they are using “prosecutorial weapons to intimidate critics, silence free speech, or chill the robust exchange of ideas” about a public policy issue. And it is just as malevolent as the burning of books in the society depicted by Bradbury in “Fahrenheit 451.”
  • Gary Edwards on 07 May 16
     
    "In Ray Bradbury's classic dystopian novel, "Fahrenheit 451," a future society criminalizes the possession of books and burns them in order to suppress any dissenting ideas, opinions, and views. Today, we have state attorneys general trying to implement their own version of "Fahrenheit 451" to criminalize dissent over a disputed, unproven scientific theory: man-induced climate change. Recently, the attorney general of the Virgin Islands, Claude Walker, unleashed a subpoena on the Competitive Enterprise Institute seeking 10 years' worth of research and communications about climate change. It turns out that same Grand Inquisitor, Claude Walker, has hit ExxonMobil with a similar subpoena that seeks all of that company's communications, conversations, and correspondence with 88 conservative and libertarian think tanks, foundations, and universities, and 54 individual researchers, scientists, and writers."
Paul Merrell

Secret program at secret Guantánamo prison hears everything | Miami Herald - 0 views

www.miamiherald.com/...article44541324.html

surveillance state GITMO-detainees military-tribunal fair-trial

shared by Paul Merrell on 16 Nov 15 - No Cached
  • A secret Defense Department program provides unfettered eavesdropping on the accused terrorists imprisoned at Guantánamo’s clandestine Camp 7 lockup, recently released war court documents show.Army Col. James L. Pohl, the judge in 9/11 trial, discovered the existence of the secret surveillance program during a recent war court hearing. Little is publicly known about the program, not even its unclassified two-word nickname.
  • The disclosure of pervasive eavesdropping at Guantánamo’s lockup for 14 former CIA prisoners comes in before-and-after documents released by the court from the recent Oct. 19-30 pretrial hearings in the death-penalty case of five men accused of orchestrating the hijackings that killed nearly 3,000 people on Sept. 11, 2001.At issue was accused 9/11 plotter Walid bin Attash’s request for guidance on how he could function as his own attorney. Bin Attash is a Yemeni in his mid-30s who is accused of training some of the hijackers. “You must assume anything you say in Camp 7 is not confidential and will be disclosed to the U.S. Government,” warns an Oct. 23 draft of the advisory, crafted after the judge was informed of the covert program. “Only when you are in Echo 2 will anything you say be covered by the attorney-client privilege.”An Oct. 20 draft of the advisory omits those lines.
  • This is not the first time in the proceedings that a surveillance program caught Pohl by surprise. In January 2013, he ordered the CIA to unplug a button that allowed an unseen observer to cut the court’s audio feed to the public. Perhaps ironically, the lone site the judge considers safe for consultative trial preparation — the Camp Echo compound of wooden huts, each containing a cell — at one time had covert recording devices that looked like smoke detectors. The judge ordered them disabled in February 2013.Attorney Dror Ladin of the American Civil Liberties Union, who was an observer at the Guantánamo hearings last month, said the apparent disclosure of “pervasive surveillance at Camp 7” is the latest issue to challenge the possibility of a fair trial.“It is shocking that for years neither defense counsel nor the judge were made aware that the government was capturing everything said aloud by the detainees there,” he said Thursday. It also adds to mounting questions of “how these military commissions can produce a fair result,” said Ladin, especially if one of the men represents himself. “These are detainees who really can’t see the evidence against them and simultaneously have been provided no rehabilitation services for the torture they suffered for years. It would be astonishing if any of them could craft a fair defense for capital charges.”
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  • A defense attorney in another case said the prosecution wants to use a surreptitiously recorded conversation between two Camp 7 captives against an alleged al-Qaida commander. And in 2012 the journalist Daniel Klaidman wrote in his book “Kill or Capture” that the U.S. government had recordings made in a Guantánamo prison recreation yard of the alleged Sept. 11 mastermind Khalid Sheik Mohammed talking about evidence that could be used against him.The latest disclosure comes at a time of decreasing transparency at the war court.On Oct. 29, the judge held a 13-minute secret session without advanced notice to the public. A day later the judge wrote in a three-page ruling that he closed the court at the request of “the Government” — war-court-speak for the prosecution — to protect state secrets whose disclosure “could result in grave danger to national security.”Pohl also ordered the court to issue a censored transcript of the parts the excluded public and accused would be allowed to see. No transcript has been released.Then the next day, Oct. 30, the judge held a daylong, open hearing on a restraining order he issued forbidding female guards from touching the 9/11 accused when they are being taken to court or legal meetings. The judge’s order has outraged members of Congress and the Pentagon brass.
  • In that public court hearing, soldiers called as witnesses from the prison discussed staffing patterns at Camp 7. Normally the Pentagon releases transcripts of open hearings the same day. Unusually, the court has not yet released the Oct. 30 transcript. A Pentagon spokesman suggested Thursday — 13 days after the open court hearing — that somebody was scrubbing the transcript of information already made public. “The security review of the Oct. 30 transcript remains ongoing,” said Navy Cmdr. Gary Ross. “We will provide an update once additional information becomes available.”Much of the October session focused on bin Attash’s question about how he’d act as his own lawyer in a system that does not let the accused terrorist see classified information in the case. The judge and attorneys devoted days to designing a script Pohl would read to any accused 9/11 terrorist who tries to take charge of his defense — and spent a full afternoon huddling in a closed meeting on the secret program.
  • In it, Pohl made clear that he never intended to let bin Attash dismiss his Pentagon-paid defense attorneys — Chicago criminal defense attorney Cheryl Bormann and Air Force Maj. Michael Schwartz. Instead, the script shows Pohl planned to appoint Bormann and Schwartz as “standby counsel” the judge could activate to carry out cross-examination of certain witnesses who might have “particular sensitivities” to being questioned by the alleged terrorist.“If you are represented by lawyers, then it is the lawyers, and not you, who will conduct the defense,” the warning says. “Correspondingly, if you represent yourself, you will be able to perform the lawyer’s core functions, but you will not necessarily be allowed to direct special appearances by counsel when it is convenient to you.”The language suggests a far more limited role by the American lawyers than those carried out in an aborted attempt to hold the Sept. 11 trial during the Bush administration. In those proceedings, alleged 9/11 terrorists serving as their own lawyer regularly had standby counsel write and argue motions in court.The script also envisions a scenario in which an accused 9/11 plotter serving as his own lawyer becomes unruly, disruptive or disobedient rather than respect “the dignity of the courtroom.” In such a case, the judge said he could deal with “obstructionist misconduct” by putting “physical restraints” on bin Attash or ejecting him from the court.Bin Attash, for his part, has not been noticeably disruptive across years of pretrial proceedings. An amputee, he was brought to his May 5, 2012 arraignment in a Guantánamo prison restraint chair routinely used for forced-feeding of hunger strikers — with guards carrying his prosthetic leg separately.
  • Paul Merrell on 16 Nov 15
     
    It's long past time to recognize that the military cannot provide a fair trial for GITMOI detainees, transfer them to the U.S., and try them in a civilian Article II court. If this kind of crap were going down before an Article II judge, those conducting the surveillance would be sitting in jail. 
Paul Merrell

Drone memo should reverse Gitmo convictions, attorneys claim - RT USA - 0 views

rt.com/...170260-drone-memo-omar-khadr

war & peace Gitmo-detainees drone-memo DoJ

shared by Paul Merrell on 04 Jul 14 - No Cached
  • Attorneys for a Canadian man who spent a decade detained by the United States military at Guantanamo Bay say details in the Obama administration’s recently released “drone memo” exonerates their client of war crimes.
  • But in a recent court filing [PDF], lawyers for Khadr, now 27, say a just-published US Department of Justice memorandum contains information that directly challenges the American government’s case against their client. Khadr’s attorneys wrote this week that the secret “drone memo” released by the White House last month — the DOJ document that the government relied on to justify the 2010 drone strike in Yemen that killed American citizen and suspected AL-Qaeda member Anwar Al-Awlaki — suggests prosecutors had no place to charge the Canadian teenager with murder in violation of the laws of war after he allegedly killed an American soldier during a firefight in Afghanistan. The DOJ memo itself was a penned by the department’s Office of Legal Counsel in response to the question of whether Central Intelligence Agency officers — who are not members of the US military — can be blamed for war crimes by launching drone strikes. The memo was written in July 2010, and justified the strike that later that year killed Al-Awlaki.
  • "The whole purpose...was to evaluate whether the CIA agents were violating the law," Morison said. "The only reasonable interpretation of that analysis is that there is no such thing (as the common law of war)." On Monday this week, Morrison and the rest of Khadr’s legal counsel, filed a motion in Guantanamo’s appeals court asking that the conviction against their client be vacated.
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  • According to a footnote within the memo, released June 24 of this year due to a Freedom of Information Act lawsuit, “lethal activities conducted in accordance with the laws of war, and undertaken in the course of lawfully authorized hostilities, do not violate the laws of war by virtue of the fact that they are carried out in part by government actors who are not entitled to the combatant’s privilege.” "That completely blows away one of the major prongs of the government's theory in all these Guantanamo cases," Sam Morison, Khadr's Pentagon-based lawyer, told The Canadian Press during an interview on Wednesday this week. Although Khadr was charged with violating the “US common law of war” that dates back centuries, his attorneys say the memo concerning CIA drone strikes suggest such legislation simply doesn’t exist.
  • Should Khadr’s attorneys succeed, then a number of cases pertaining to current or former Guantanamo detainees accused of war crimes could be called into question. According to Human Rights Watch, however, only six of the 149 detainees at Gitmo face any formal charges — fewer than the number of prisoners who have died while held there in military custody.
Paul Merrell

Guantánamo hearing halted by supposed CIA 'black site' worker serving as war ... - 0 views

www.miamiherald.com/...article9600110.html

war & peace 9-11-trial GITMO military-tribunal translator CIA torture

shared by Paul Merrell on 11 Feb 15 - No Cached
  • The 9/11 trial judge abruptly recessed the first hearing in the case since August on Monday after some of the alleged Sept. 11 plotters said they recognized a war court linguist as a former secret CIA prison worker.Alleged plot deputy Ramzi bin al Shibh, 42, made the revelation just moments into the hearing by informing the judge he had a problem with his courtroom translator. The interpreter, Bin al Shibh claimed, worked for the CIA during his 2002 through 2006 detention at a so-called “Black Site.”“The problem is I cannot trust him because he was working at the black site with the CIA, and we know him from there,” he said.This week’s is the first hearing for the five men accused of conspiring in the Sept. 11, 2001 attacks — that killed nearly 3,000 people in New York, the Pentagon and Pennsylvania — since the public release of portions of a sweeping Senate Intelligence Committee study of the agency’s secret prisons known as “The Torture Report.”
  • Instead the issue became, apparently, a stony-faced translator who was sitting alongside Bin al Shibh in court when the hearing started. Lawyers for the alleged mastermind, Khalid Sheik Mohammed, 49, and his nephew, Ammar al Baluchi, 37, said they learned about the recognition just as court began. The judge ordered a quick recess, excused Campoamor-Sanchez and summoned the chief prosecutor, Army Brig. Gen. Mark Martins, for questioning.Court resumed briefly with the linguist missing. Martins sought, and got, a continuing recess until 9 a.m. Wednesday, to look into the issue and file a written pleading with the court. Pleadings are sealed for at least 15 days for intelligence agencies’ scrub of secret information.Mohammed’s attorney, David Nevin, asked Pohl to order the suspected CIA worker to not leave this remote base in southeast Cuba and to submit to defense questioning.
  • War court translators are provided by one of two Defense Department contractors paid by the Pentagon unit that runs the war court, called the Office of the Convening Authority for Military Commissions. It’s run by retired Marine Maj. Gen. Vaughn Ary, a former military lawyer. The contractors are Leidos and All World.Ary’s office provides a list of qualified translators to the Office of Military Commissions Defense unit, and, in the capital cases, each one gets a dedicated translator assigned to the team. Teams can object to the choice, and have done so in the past, as unsuitable, according to earlier war court sessions.The war court’s Chief Defense Counsel, Air Force Col. Karen Mayberry, said after the court session Monday that the translator sitting with Bin al Shibh in court was not permanently assigned to his team, or the 9/11 case. The Bin al Shibh team had lost its translator after an FBI investigation secretly questioned Sept. 11 defense team members. Monday’s translator, the one that Bin al Shibh said he recognized from a CIA prison, had worked for years on war court defense teams, but none with the Sept. 11 death-penalty case, according to Mayberry. Monday’s translator was filling in for this session because, although the Bin al Shibh team had chosen a new team translator, the new permanent translator had not yet gotten a security clearance, which can be a lengthy process.
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  • Cheryl Bormann, attorney for another alleged plotter, Walid bin Attash, 36, told the judge, Army Col. James L. Pohl, that her client “was visibly shaken” at recognizing a man in the maximum-security war court.“My client relayed to me this morning that there is somebody in this courtroom who was participating in his illegal torture,” she said.Bormann said it was either “the biggest coincidence ever” or “part of the pattern of the infiltration of defense teams.” Monday’s hearing was supposed to start with a presentation by a Justice Department lawyer, Fernando Campoamor-Sanchez, on FBI agents secretly questioning members of the Bin al Shibh defense team. The Sept. 11 legal defense teams have called the FBI’s action spying on privileged attorney-client conversations.
  • Bin al Shibh and the other four men are accused of helping to orchestrate, train, and arrange travel for the 19 men who hijacked four U.S. passenger aircraft on Sept. 11, 2001. The prosecutor is seeking their execution, if they are convicted. The CIA held and interrogated them for three to four years in secret overseas prisons before they were brought to Guantánamo in September 2006. But even once they got here, they continued to be in CIA custody, according to the Senate report. Jay Connell, attorney for Baluchi, 37, said Sunday it is still not known when the agency relinquished control of the men, who are held in a secret prison called Camp 7.
Paul Merrell

Security Experts Oppose Government Access to Encrypted Communication - The New York Times - 0 views

www.nytimes.com/...o-encrypted-communication.html

encryption government-backdoors expert-report

shared by Paul Merrell on 08 Jul 15 - No Cached
  • An elite group of security technologists has concluded that the American and British governments cannot demand special access to encrypted communications without putting the world’s most confidential data and critical infrastructure in danger.A new paper from the group, made up of 14 of the world’s pre-eminent cryptographers and computer scientists, is a formidable salvo in a skirmish between intelligence and law enforcement leaders, and technologists and privacy advocates. After Edward J. Snowden’s revelations — with security breaches and awareness of nation-state surveillance at a record high and data moving online at breakneck speeds — encryption has emerged as a major issue in the debate over privacy rights.
  • That has put Silicon Valley at the center of a tug of war. Technology companies including Apple, Microsoft and Google have been moving to encrypt more of their corporate and customer data after learning that the National Security Agency and its counterparts were siphoning off digital communications and hacking into corporate data centers.
  • Yet law enforcement and intelligence agency leaders argue that such efforts thwart their ability to monitor kidnappers, terrorists and other adversaries. In Britain, Prime Minister David Cameron threatened to ban encrypted messages altogether. In the United States, Michael S. Rogers, the director of the N.S.A., proposed that technology companies be required to create a digital key to unlock encrypted data, but to divide the key into pieces and secure it so that no one person or government agency could use it alone.The encryption debate has left both sides bitterly divided and in fighting mode. The group of cryptographers deliberately issued its report a day before James B. Comey Jr., the director of the Federal Bureau of Investigation, and Sally Quillian Yates, the deputy attorney general at the Justice Department, are scheduled to testify before the Senate Judiciary Committee on the concerns that they and other government agencies have that encryption technologies will prevent them from effectively doing their jobs.
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  • The new paper is the first in-depth technical analysis of government proposals by leading cryptographers and security thinkers, including Whitfield Diffie, a pioneer of public key cryptography, and Ronald L. Rivest, the “R” in the widely used RSA public cryptography algorithm. In the report, the group said any effort to give the government “exceptional access” to encrypted communications was technically unfeasible and would leave confidential data and critical infrastructure like banks and the power grid at risk. Handing governments a key to encrypted communications would also require an extraordinary degree of trust. With government agency breaches now the norm — most recently at the United States Office of Personnel Management, the State Department and the White House — the security specialists said authorities could not be trusted to keep such keys safe from hackers and criminals. They added that if the United States and Britain mandated backdoor keys to communications, China and other governments in foreign markets would be spurred to do the same.
  • “Such access will open doors through which criminals and malicious nation-states can attack the very individuals law enforcement seeks to defend,” the report said. “The costs would be substantial, the damage to innovation severe and the consequences to economic growth hard to predict. The costs to the developed countries’ soft power and to our moral authority would also be considerable.”
  • Paul Merrell on 08 Jul 15
     
    Our system of government does not expect that every criminal will be apprehended and convicted. There are numerous values our society believes are more important. Some examples: [i] a presumption of innocence unless guilt is established beyond any reasonable doubt; [ii] the requirement that government officials convince a neutral magistrate that they have probable cause to believe that a search or seizure will produce evidence of a crime; [iii] many communications cannot be compelled to be disclosed and used in evidence, such as attorney-client communications, spousal communications, and priest-penitent communications; and [iv] etc. Moral of my story: the government needs a much stronger reason to justify interception of communications than saying, "some crooks will escape prosecution if we can't do that." We have a right to whisper to each other, concealing our communicatons from all others. Why does the right to whisper privately disappear if our whisperings are done electronically? The Supreme Court took its first step on a very slippery slope when it permitted wiretapping in Olmstead v. United States, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928). https://goo.gl/LaZGHt It's been a long slide ever since. It's past time to revisit Olmstead and recognize that American citizens have the absolute right to communicate privately. "The President … recognizes that U.S. citizens and institutions should have a reasonable expectation of privacy from foreign or domestic intercept when using the public telephone system." - Brent Scowcroft, U.S. National Security Advisor, National Security Decision Memorandum 338 (1 September 1976) (Nixon administration), http://www.fas.org/irp/offdocs/nsdm-ford/nsdm-338.pdf   
Paul Merrell

US pushing local cops to stay mum on surveillance - Yahoo News - 0 views

news.yahoo.com/;_ylt=AwrBJR4e65lTwmEAb7zQtDMD

surveillance state location-data public-records-acts litigation stingrays

shared by Paul Merrell on 13 Jun 14 - No Cached
  • WASHINGTON (AP) -- The Obama administration has been quietly advising local police not to disclose details about surveillance technology they are using to sweep up basic cellphone data from entire neighborhoods, The Associated Press has learned. Citing security reasons, the U.S. has intervened in routine state public records cases and criminal trials regarding use of the technology. This has resulted in police departments withholding materials or heavily censoring documents in rare instances when they disclose any about the purchase and use of such powerful surveillance equipment. Federal involvement in local open records proceedings is unusual. It comes at a time when President Barack Obama has said he welcomes a debate on government surveillance and called for more transparency about spying in the wake of disclosures about classified federal surveillance programs.
  • One well-known type of this surveillance equipment is known as a Stingray, an innovative way for law enforcement to track cellphones used by suspects and gather evidence. The equipment tricks cellphones into identifying some of their owners' account information, like a unique subscriber number, and transmitting data to police as if it were a phone company's tower. That allows police to obtain cellphone information without having to ask for help from service providers, such as Verizon or AT&T, and can locate a phone without the user even making a call or sending a text message. But without more details about how the technology works and under what circumstances it's used, it's unclear whether the technology might violate a person's constitutional rights or whether it's a good investment of taxpayer dollars. Interviews, court records and public-records requests show the Obama administration is asking agencies to withhold common information about the equipment, such as how the technology is used and how to turn it on. That pushback has come in the form of FBI affidavits and consultation in local criminal cases.
  • "These extreme secrecy efforts are in relation to very controversial, local government surveillance practices using highly invasive technology," said Nathan Freed Wessler, a staff attorney with the American Civil Liberties Union, which has fought for the release of these types of records. "If public participation means anything, people should have the facts about what the government is doing to them." Harris Corp., a key manufacturer of this equipment, built a secrecy element into its authorization agreement with the Federal Communications Commission in 2011. That authorization has an unusual requirement: that local law enforcement "coordinate with the FBI the acquisition and use of the equipment." Companies like Harris need FCC authorization in order to sell wireless equipment that could interfere with radio frequencies. A spokesman from Harris Corp. said the company will not discuss its products for the Defense Department and law enforcement agencies, although public filings showed government sales of communications systems such as the Stingray accounted for nearly one-third of its $5 billion in revenue. "As a government contractor, our solutions are regulated and their use is restricted," spokesman Jim Burke said.
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  • Local police agencies have been denying access to records about this surveillance equipment under state public records laws. Agencies in San Diego, Chicago and Oakland County, Michigan, for instance, declined to tell the AP what devices they purchased, how much they cost and with whom they shared information. San Diego police released a heavily censored purchasing document. Oakland officials said police-secrecy exemptions and attorney-client privilege keep their hands tied. It was unclear whether the Obama administration interfered in the AP requests. "It's troubling to think the FBI can just trump the state's open records law," said Ginger McCall, director of the open government project at the Electronic Privacy Information Center. McCall suspects the surveillance would not pass constitutional muster. "The vast amount of information it sweeps in is totally irrelevant to the investigation," she said.
  • A court case challenging the public release of information from the Tucson Police Department includes an affidavit from an FBI special agent, Bradley Morrison, who said the disclosure would "result in the FBI's inability to protect the public from terrorism and other criminal activity because through public disclosures, this technology has been rendered essentially useless for future investigations." Morrison said revealing any information about the technology would violate a federal homeland security law about information-sharing and arms-control laws — legal arguments that that outside lawyers and transparency experts said are specious and don't comport with court cases on the U.S. Freedom of Information Act. The FBI did not answer questions about its role in states' open records proceedings.
  • But a former Justice Department official said the federal government should be making this argument in federal court, not a state level where different public records laws apply. "The federal government appears to be attempting to assert a federal interest in the information being sought, but it's going about it the wrong way," said Dan Metcalfe, the former director of the Justice Department's office of information and privacy. Currently Metcalfe is the executive director of American University's law school Collaboration on Government Secrecy project. A criminal case in Tallahassee cites the same homeland security laws in Morrison's affidavit, court records show, and prosecutors told the court they consulted with the FBI to keep portions of a transcript sealed. That transcript, released earlier this month, revealed that Stingrays "force" cellphones to register their location and identifying information with the police device and enables officers to track calls whenever the phone is on.
  • One law enforcement official familiar with the Tucson lawsuit, who spoke on condition of anonymity because the official was not authorized to speak about internal discussions, said federal lawyers told Tucson police they couldn't hand over a PowerPoint presentation made by local officers about how to operate the Stingray device. Federal officials forwarded Morrison's affidavit for use in the Tucson police department's reply to the lawsuit, rather than requesting the case be moved to federal court. In Sarasota, Florida, the U.S. Marshals Service confiscated local records on the use of the surveillance equipment, removing the documents from the reach of Florida's expansive open-records law after the ACLU asked under Florida law to see the documents. The ACLU has asked a judge to intervene. The Marshals Service said it deputized the officer as a federal agent and therefore the records weren't accessible under Florida law.
  • Paul Merrell on 13 Jun 14
     
    The Florida case is particularly interesting because Florida is within the jurisdiction of the U.S. Eleventh Circuit Court of Appeals, which has just ruled that law enforcement must obtain a search warrant from a court before using equipment to determine a cell phone's location.  
Paul Merrell

Defending Dissent » New Docs Show Army Coordinated Spy Ring - 1 views

www.defendingdissent.org/...army-spy-ring

surveillance state Army fusion-centers litigation

shared by Paul Merrell on 30 May 14 - No Cached
  • Army illegally supplied  intelligence on nonviolent antiwar protesters to FBI and police in multiple states Tacoma, WA – Recently obtained public records confirm an Army-led, multi-agency spy network that targeted “leftists/anarchists” as domestic terrorists. The Army used illegal infiltration to gather information on nonviolent antiwar protesters, disseminate it to the FBI and police departments in multiple states, and in some cases used it to disrupt planned protests by preemptively and falsely arresting activists. Public records obtained last month by Olympia activist Paul French reveal new evidence in the widely-watched Army spying case Panagacos v. Towery. An email from November 2007, in particular, shows that intelligence analyst John J. Towery was paid by the Army to infiltrate political groups and share unlawfully obtained intelligence with a growing network of law enforcement agencies, including the FBI, and police departments in Los Angeles, Portland, Eugene, Everett, and Spokane. The Towery email not only represents a broader spying program than previously thought, it also confirms the program was led by the Army, a fact contradicted by Towery’s 2009 sworn statements.
  • “The latest revelations show how the Army not only engaged in illegal spying on political dissidents, it led the charge and tried to expand the counterintelligence network targeting leftists and anarchists,” said Larry Hildes, a National Lawyers Guild attorney who filed the Panagacos lawsuit in 2010. “By targeting activists without probable cause, based on their ideology and the perceived political threat they represent, the Army clearly broke the law and must be held accountable.” Previously obtained public records indicate that absent such accountability, the Army will continue to spy on and target protesters, which it did until at least 2010, long after Towery’s identity was exposed. Public records previously obtained in 2009 already established that over a two-year period beginning in 2006, Towery (under the alias “John Jacob”) spied on the Olympia antiwar group Port Militarization Resistance (PMR) as well as several other organizations, including Students for a Democratic Society, the Industrial Workers of the World, and Iraq Veterans Against the War. It has also already been established that Towery’s intelligence was passed on to the Washington State Fusion Center, a communications hub of  local, state and federal law enforcement, and then used by local police to target activists for repeated harassment, preemptive and false arrest, excessive use of force, and malicious prosecution
  • The recently disclosed Towery email was a follow-up to a 2007 Domestic Terrorism Conference he attended in Spokane, during which “domestic terrorist” dossiers on some of the Panagacos plaintiffs were distributed. The Towery email shows the development of a multi-agency spying apparatus in intimate detail. “I thought it would be a good idea to develop a leftist/anarchist mini-group for intel sharing and distro,” wrote the Army analyst to several law enforcement officials. Towery references books, “zines and pamphlets,” and a “comprehensive web list” as source material, but cautions the officials on file sharing “because it might tip off groups that we are studying their techniques, tactics and procedures.” Towery, who worked at Joint Base Lewis-McChord, not only coordinated his actions with local, state and federal law enforcement agencies, many of whom are named defendants in the Panagacos case, he also admitted to eavesdropping on a confidential, privileged attorney-client email listserv of criminal defendants and their legal counsel. Such conduct is considered a constitutional violation, but Towery also took sensitive information from the listserv vital to a pending criminal trial in 2007 and passed it on to fusion center officials who then transmitted it to prosecutors, forcing a mistrial in a case the defense was winning handily. The case was later dismissed for prosecutorial misconduct.
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  • The public records disclosure comes as government spying and criticism of the National Security Agency’s surveillance program has reached a fever pitch. However, a little-known and rarely, if ever, enforced law from 1878 distinguishes the spying under Panagacos from that of the NSA. The Posse Comitatus Act prohibits the military from enforcing domestic laws on U.S. soil by making such actions a Gross Misdemeanor, yet to-date no official has been prosecuted under the Act. Instead of conceding to the violations, the Army is currently using the Panagacos case to try to seal nearly 10,000 pages of documents, many of which are incriminating and embarrassing to the government. The legal effort to unseal those documents will play out over the next few weeks. The Obama Administration tried to dismiss the Panagacos lawsuit, but in a Ninth Circuit decision from December 2012 the court rejected the government’s arguments, ruling that allegations of First and Fourth Amendment violations were “plausible,” and ordered the case to proceed to trial. The lawsuit was filed on behalf of seven PMR members who sought to oppose the wars in Iraq and Afghanistan through nonviolent civil disobedience and is being heard by U.S. District Court Judge Ronald B. Leighton. In addition to Towery, named defendants in Panagacos include Thomas Rudd, one of Towery’s superiors at Joint Base Lewis-McChord, the U.S. Army, Navy, and Coast Guard, as well as certain officials within its ranks, the City of Olympia and its police department, the City of Tacoma and its police department, Pierce County, and various personnel from those jurisdictions.
  • Panagacos v. Towery is currently in the discovery stage and is scheduled to go to trial in June 2014. Further information: Recently disclosed Towery email Panagacos lawsuit complaint Domestic terrorism dossiers on plaintiffs
  • Paul Merrell on 30 May 14
     
    One I had missed from February, 2014. I believe I had bookmarked something about this before the lawsuit was filed. Now not only has the case been filed but the alleged grounds for the lawsuit have been greenlighted by the 9th U.S. Circuit Court of Appeals. If you click through the link to the court's opinion, you'll find one of the Ninth Circuit's shorter opinions, less than five pages, which does not even mention that the defendants were employed by the U.S. Army or any branch of government, while still rejecting their claim of government officials' qualified immunity from suit for the alleged First and Fourth Amendment violations. The third amended complaint sufficiently alleged facts to support claims that had been clearly established as violative of the First and Fourth Amendments.   It's clear that the plaintiffs have smoking gun evidence and that the National Lawyers' Guild is all over this one. Trial is scheduled next month, according to the article. It's just under 300 miles from here to Seattle, but I just might make the trip to watch a few days of this trial. Strong First Amendment cases for damages that survive appellate review of the qualified immunity nearly always settle before trial. But this one smells like it is going to trial for publicity purposes even if not for the vindication of rights, considering the nature of the organizations involved both as targets of the surveillance and their lawyers. It's great entertainment watching government guys and gals squirm on the witness stand when they've been caught violating civil rights. In criminal cases, invoking the Fifth Amendment right against self-incrimination cannot be taken as evidence of guilt. But in a federal civil rights case, that entitles the plaintiffs to have the jury instructed that it can infer liability from the resort to the Fifth Amendment to refuse answering questions.  Better back in the day when I was the lawyer asking the questions. But it's still great fun just to watch
Paul Merrell

9/11 lawyers trade barbs over CIA 'black site' translator turned Guantánamo d... - 0 views

www.miamiherald.com/...article9765239.html

war & peace 9-11 terrorists™ litigation CIA torture black-sites translator

shared by Paul Merrell on 13 Feb 15 - No Cached
  • The Sept. 11 trial judge and prosecutors struggled Wednesday to find a way forward out of the startling discovery that a former CIA linguist tasked to translate for an alleged 9/11 plotter earlier worked at a secret CIA prison.Defense lawyers, who say their clients were tortured in the agency’s secret prison network, asked to take sworn testimony from the man. They also asked the judge to halt the intended two-week pretrial hearing, the first since August, to conduct an inquiry and perhaps new background checks on defense team staff in the complex, five-man death-penalty prosecution. About 130 people, both military and civilian, work at the Office of the Chief Defense Counsel.“This has so decimated any trust on this team,” said defense attorney Cheryl Bormann, her voice cracking, “we can't go forward.”
  • Army Col. James L. Pohl, the judge, said he’d hear from prosecutors Thursday on the request to question the former CIA linguist who had been working temporarily for the team representing accused terrorist Ramzi Bin al Shibh since August. A new translator, who just got his security clearance on Friday, was flown in Tuesday from Miami. Meantime, defense and prosecution attorneys traded accusations over how the contract linguist came to sit beside Bin al Shibh on Monday in a courtroom where four of the five accused 9/11 conspirators said they recognized him from their years of secret detention.
  • War court Arabic language linguists come from a pool of names provided by approved Pentagon contractors. They require special security clearances that allow them to work with secret intelligence. Bin al Shibh’s lead counsel, Jim Harrington, said after court that he and a co-counsel vetted the linguist in August, and he had no idea of the translator’s previous CIA work before the alleged terrorist disclosed it in court Monday.“The problem is I cannot trust him because he was working at the black site with the CIA, and we know him from there,” said Bin al Shibh, a Yemeni accused of functioning as a 9/11 plot deputy.
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  • Bormann wants to investigate “every defense team member” past and present for undisclosed previous work, and told the judge the prosecution filing on the CIA linguist episode was an “out and out falsehood.” Nevin asked the judge to suspend proceedings “until we can get to the bottom of this issue.”The issue is the latest to beleaguer preparation for the trial of the five men accused of conspiring in the Sept. 11, 2001 terror attacks, and, as defense lawyers see it, fodder for an eventual motion to dismiss the case for outrageous government conduct.It had already been sidelined by what defense lawyers called an FBI infiltration of their privilege by agents secretly questioning team members then having them sign non-disclosure agreements.
  • It was the FBI snooping episode that set up this week’s CIA linguist scandal. Little is known about what the FBI was investigating in secret approaches and questioning of defense teams. But as a result, Bin al Shibh’s earlier translator lost his security clearance and his job.They settled on a new permanent linguist, who didn’t arrive on this remote base until Tuesday.In between, the temporary translator who worked at a CIA black site had been filling in since August, off and on, according to Harrington — and had met Bin al Shibh earlier.
  • But Bin al Shibh only disclosed in court Monday that he recognized the linguist from a secret prison where Bin al Shibh had been held captive before his arrival at Guantánamo in 2006. Accused accomplices Ammar al Baluchi and Walid bin Attash recognized him, too, as did Mohammed. The three were apparently seeing the translator for the first time at Guantánamo in court Monday.
  • Paul Merrell on 13 Feb 15
     
    Dismissal for outrageous conduct is what needs to happen. And the officials who ordered the penetration of the defense team in the FBI and CIA need to be dismissed from government and prosecuted criminally. 
Paul Merrell

Who Is Watching the Watch Lists? - NYTimes.com - 0 views

www.nytimes.com/...-watching-the-watch-lists.html

surveillance state terrorist-watch-lists litigation

shared by Paul Merrell on 02 Dec 13 - No Cached
  • GOVERNMENTS wade into treacherous waters when they compile lists of people who might cause their countries harm. As fears about Japanese-Americans and Communists have demonstrated in the past, predictions about individual behavior are often inaccurate, the motivations for list-making aren’t always noble and concerns about threats are frequently overblown.
  • What’s more, the government refuses to confirm or deny whether someone is on the list, officially called the Terrorist Screening Database, or divulge the criteria used to make the decisions — other than to say the database includes “individuals known or suspected to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism and terrorist activities.” Even less is known about the secondary watch lists that are derived from the main one, including the no-fly list (used to prevent people from boarding aircraft), the selectee and expanded selectee lists (used to flag travelers for extra screening at airport checkpoints), the TECS database (used to vet people entering or leaving the United States), the Consular Lookout and Support System (used to screen visa applications) and the known or suspected terrorists list (used by law enforcement in routine police encounters). For people who have landed on these lists, the terrorist designation has been difficult to challenge legally — although that may be about to change. On Monday, a lawsuit brought by a traveler seeking removal of her name from the no-fly list, or at least due process to challenge that list, is going to trial in Federal District Court in San Francisco, after almost eight years of legal wrangling.
  • So it might seem that current efforts to identify and track potential terrorists would be approached with caution. Yet the federal government’s main terrorist watch list has grown to at least 700,000 people, with little scrutiny over how the determinations are made or the impact on those marked with the terrorist label.
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  • “We’ve tried to get discovery into whether our client has been surveilled and have been shut down on that,” said Elizabeth Pipkin, a lawyer with McManis Faulkner, the firm representing Ms. Ibrahim pro bono. “They won’t answer that question for us.” The government says that revealing this type of information would jeopardize national security. In April, Attorney General Eric H. Holder Jr. asserted to the court “a formal claim of the state secrets privilege” in the case. In another case, Latif v. Holder, 13 American citizens who have been denied boarding on flights are seeking removal of their names from any watch list, as well as the reasons they have been banned and an opportunity to rebut any derogatory information.
Paul Merrell

Show Us the Drone Memos - NYTimes.com - 0 views

www.nytimes.com/...show-us-the-drone-memos.html

tyranny Obama 5th-Amendment 4th Amendment assassinations Rand Paul drones

shared by Paul Merrell on 12 May 14 - No Cached
  • I BELIEVE that killing an American citizen without a trial is an extraordinary concept and deserves serious debate. I can’t imagine appointing someone to the federal bench, one level below the Supreme Court, without fully understanding that person’s views concerning the extrajudicial killing of American citizens.But President Obama is seeking to do just that. He has nominated David J. Barron, a Harvard law professor and a former acting assistant attorney general, to a seat on the United States Court of Appeals for the First Circuit.
  • I believe that all senators should have access to all of these opinions. Furthermore, the American people deserve to see redacted versions of these memos so that they can understand the Obama administration’s legal justification for this extraordinary exercise of executive power. The White House may invoke national security against disclosure, but legal arguments that affect the rights of every American should not have the privilege of secrecy.I agree with the A.C.L.U. that “no senator can meaningfully carry out his or her constitutional obligation to provide ‘advice and consent’ on this nomination to a lifetime position as a federal appellate judge without being able to read Mr. Barron’s most important and consequential legal writing.” The A.C.L.U. cites the fact that in modern history, a presidential order to kill an American citizen away from a battlefield is unprecedented.The Bill of Rights is clear. The Fifth Amendment provides that no one can be “deprived of life, liberty, or property, without due process of law.” The Sixth Amendment provides that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” as well as the right to be informed of all charges and have access to legal counsel. These are fundamental rights that cannot be waived with a presidential pen.
  • In battle, combatants engaged in war against America get no due process and may lawfully be killed. But citizens not in a battlefield, however despicable, are guaranteed a trial by our Constitution.
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  • While he was an official in the Justice Department’s Office of Legal Counsel, Mr. Barron wrote at least two legal memos justifying the execution without a trial of an American citizen abroad. Now Mr. Obama is refusing to share that legal argument with the American people. On April 30, I wrote to the Senate majority leader, Harry Reid, urging him to delay this nomination, pending a court-ordered disclosure of the first memo I knew about. Since that letter, I have learned more. The American Civil Liberties Union sent a letter to all senators on May 6, noting that in the view of the Senate Intelligence Committee chairwoman, Dianne Feinstein, “there are at least eleven OLC opinions on the targeted killing or drone program.” It has not been established whether Mr. Barron wrote all those memos, but we do know that his controversial classified opinions provided the president with a legal argument and justification to target an American citizen for execution without a trial by jury or due process.
  • No one argues that Americans who commit treason shouldn’t be punished. The maximum penalty for treason is death. But the Constitution specifies the process necessary to convict.Continue reading the main story Continue reading the main story AdvertisementAnwar al-Awlaki was an American citizen who was subject to a kill order from Mr. Obama, and was killed in 2011 in Yemen by a missile fired from a drone. I don’t doubt that Mr. Awlaki committed treason and deserved the most severe punishment. Under our Constitution, he should have been tried — in absentia, if necessary — and allowed a legal defense. If he had been convicted and sentenced to death, then the execution of that sentence, whether by drone or by injection, would not have been an issue. Continue reading the main story 526 Comments But this new legal standard does not apply merely to a despicable human being who wanted to harm the United States. The Obama administration has established a legal justification that applies to every American citizen, whether in Yemen, Germany or Canada.
  • Defending the rights of all American citizens to a trial by jury is a core value of our Constitution. Those who would make exceptions for killing accused American citizens without trial should give thought to the times in our history when either prejudice or fear allowed us to forget due process. During World War I, our nation convicted and imprisoned Americans who voiced opposition to the war. During World War II, the government interned Japanese-Americans.The rule of law exists to protect those who are minorities by virtue of their skin color or their beliefs. That is why I am fighting this nomination. And I will do so until Mr. Barron frankly discusses his opinions on executing Americans without trial, and until the American people are able to participate in one of the most consequential debates in our history. Rand Paul is a Republican senator from Kentucky.
Paul Merrell

British Spies Are Free to Target Lawyers and Journalists - The Intercept - 0 views

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surveillance state GCHQ targets-lawyers

shared by Paul Merrell on 14 Nov 14 - No Cached
  • British spies have been granted the authority to secretly eavesdrop on legally privileged attorney-client communications, according to newly released documents. On Thursday, a series of previously classified policies confirmed for the first time that the U.K.’s top surveillance agency Government Communications Headquarters (pictured above) has advised its employees: “You may in principle target the communications of lawyers.” The U.K.’s other major security and intelligence agencies—MI5 and MI6—have adopted similar policies, the documents show. The guidelines also appear to permit surveillance of journalists and others deemed to work in “sensitive professions” handling confidential information.
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