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Paul Merrell

Senior Defense Dept. officials decry Guantánamo judge's female guard ban | Mi... - 0 views

www.miamiherald.com/...article41615208.html

GITMO-detainees female-guards litigation

shared by Paul Merrell on 28 Oct 15 - No Cached
  • The Pentagon’s top two leaders on Tuesday decried as “outrageous” an Army judge’s nine-month-old ban on female guards touching the five alleged 9/11 conspirators as they move them to and from court and legal meetings.Secretary of Defense Ash Carter and Gen. Joseph Dunford Jr., chairman of the joint chiefs of staff, criticized the ban in response to a question from New Hampshire Sen. Kelly Ayotte during a Senate Armed Services Committee hearing in Washington, D.C. Ayotte and two other GOP senators visited the prison Friday, and said they met with female guards upset by the restriction.
  • “I think it is counter to the way we treat service members, including women service members, and outrage is a very good word for it,” Carter said, incorrectly attributing the ban to a federal judge — not the chief of the war court judiciary, Army Col. James L. Pohl.The five alleged Sept. 11 plotters complained through their lawyers last year that Islamic and traditional doctrine require they have no physical contact with women other than family members. They claimed that, until a year ago, prison commanders had provided the religious accommodation of not being touched by female soldiers.
  • Pentagon-paid U.S. defense attorneys got Pohl to issue an emergency, temporary restraining order against the use of female guards in January, pending testimony and legal arguments on the subject.As it happens, Pohl has listed the ban on this week’s docket for pretrial hearings in the case of the five men facing a joint death-penalty trial as the alleged plotters of the Sept. 11, 2001, terror attacks. Whether it would actually be heard, however, was unclear because the majority of the current session’s 40-item agenda has been sidelined by one alleged plotter’s interest in functioning as his own defense attorney.
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  • A military lawyer for the alleged plot mastermind, Khalid Sheik Mohammed, said the remarks were troubling in light of the Senate Torture Report showing the CIA’s enhanced interrogation techniques included sexual humiliation.“These men have been subjected by the U.S. government to documented, systematic sexualized attack on their Islamic identity,” Marine Maj. Derek Poteet, Mohammed’s detailed military counsel, told the Miami Herald. “So forced touching by guards of the opposite sex is extremely inappropriate.” Poteet also called it “also extraordinarily inappropriate for these respected military and civilian leaders to inject themselves into the matters that are currently in litigation in a military commission by a military judge, raising the specter of unlawful command influence.”
  • Since the Pentagon opened the war-on-terror prison camps here in 2002, female guards routinely escorted most of the prisoners to and from appointments, classes, everything but showers. But the 9/11 defendants got here in 2006, and are segregated in the secret Camp 7 since their transfer from CIA black sites, where they were subjected to sexual humiliation.
  • Later, at a press conference, she characterized the ban as a manipulation of the U.S. legal system by “the worst of the worst.”“As the women guards at Guantánamo told us, they just want to do their jobs,” she said. “And they can’t believe that we are allowing terrorists who murdered almost 3,000 people to dictate how U.S. service members do their jobs — simply because they are women.”
  • Paul Merrell on 28 Oct 15
     
    Senator Ayotte: "And they can't believe that we are allowing terrorists who murdered almost 3,000 people to dictate how U.S. service members do their jobs - simply because they are women." Hey, Senator, did you ever hear of the presumption of innocence? These guys haven't been tried and convicted. Given that they are not Israeli, I'd say they stand a fair chance of acquittal.
Paul Merrell

Clinton IT aide answered zero questions in deposition | TheHill - 0 views

thehill.com/...d-zero-questions-in-deposition

Auction 2016 Hillary email-scandal Pagliano 5th-Amendment FOIA litigation

shared by Paul Merrell on 30 Jun 16 - No Cached
  • A former IT expert who was previously responsible for Hillary ClintonHillary Rodham ClintonTrump warns against Syrian refugees: 'A lot of those people are ISIS' Overnight Finance: Senate sends Puerto Rico bill to Obama | Treasury, lawmakers to meet on tax rules | Obama hits Trump on NAFTA | Fed approves most banks' capital plans Bush World goes for Clinton, but will a former president? MORE’s private email server answered virtually no questions during a roughly 90-minute deposition as part of an open records lawsuit this week.Aside from stating his name and saying three times that he understood procedural rules of the sworn-oath interview, Bryan Pagliano declined to say a single word other than to plead his Fifth Amendment right against self-incrimination.
  • The extensive reliance on the Fifth Amendment, which was first reported by Fox News on Wednesday, was expected; Pagliano’s lawyers had previously notified the court about the IT consultant’s plans.But it nonetheless could reflect poorly on Clinton, the former secretary of State and presumed Democratic presidential nominee, whom the judge in the case has said could be forced to answer questions herself.Pagliano’s refusal to talk ensures that key details about her email system remain unsettled and may raise the chances that she is asked to be interviewed herself as part of the case.
  • Pagliano has been granted limited immunity as part of the FBI’s ongoing investigation of Clinton’s email setup and the possibility that classified information was mishandled. In court documents filed ahead of his Wednesday morning deposition, lawyers for him and the federal government refused to outline the terms of the agreement or say how he might be assisting the investigation.However, lawyers did warn that the limited nature of his deal could leave him open to prosecution for incriminating information he divulged outside of protected sessions.The federal court ruled last week that Pagliano's immunity deal could remain secret.
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  • Judicial Watch has interviewed multiple former aides of Clinton as part of its lawsuit, which is one of several pending before a federal court in Washington.Next week, it is expected to conduct the final depositions as part of the case, with longtime deputy Huma Abedin and Undersecretary for Management Patrick Kennedy. 
Paul Merrell

Feds confirm Bush-era e-mail surveillance - POLITICO.com - 0 views

www.politico.com/...email-surveillance-185283.html

surveillance state NSA Bush-II email digital-privacy

shared by Paul Merrell on 20 Mar 14 - No Cached
  • The U.S. government has acknowledged that it swept up huge volumes of data from emails in the U.S. for several years without any court approval, based solely on the orders of former President George W. Bush. In a court filings on Monday, government lawyers said that the Internet program ran in parallel with a program gathering so-called metadata about telephone calls. The counterterrorism efforts operated under presidential authority before a judge approved them in July 2004, said a 2007 court filing made public Monday by the Justice Department (and posted here.)
  • "After the 9/11 attacks and pursuant to an authorization of the President, [redacted] the NSA [redacted] the bulk collection of non-content information about  telephone calls and Internet communications (hereafter 'metadata') activities that enable the NSA to uncover the contacts [redacted] of members or agents of al Qaeda or affiliated terrorist organizations," a senior NSA official wrote in an October 2007 declaration originally filed under seal as part of an effort to defeat litigation about the snooping Bush ordered. "Specifically, the President authorized the the NSA to collect metadata related to Internet communications for the purpose of conducting targeted analysis to track Al Qaeda-related networks. Internet metadata is header/router/addressing information, such as the 'to,' 'from,' 'cc,' and 'bcc' lines, as opposed to the body or 're' lines, of a standard e-mail. Since July 2004, the collection of Internet metadata has been conducted pursuant to an Order of the Foreign Intelligence Surveillance Court," the still-unidentified official from NSA's Signals Intelligence Directorate continued. The email program was effectively public since June of last year, after contractor Edward Snowden leaked a top-secret National Security Agency inspector general report that described the program.
  • FISC Judge Colleen Kollar-Kotelly's opinion approving the surveillance was officially released in November 2013. However, the date she issued it was redacted. Many surmised that her opinion followed a dust-up in March 2004, when then-Deputy Attorney General James Comey questioned the legality of some aspect of Bush's post-9/11 surveillance programs and refused to reauthorize that portion of the surveillance. Comey's refusal is said to have put the program into turmoil for a period of months, until officials sought and won the order from Kollar-Kotelly blessing the gathering of both the email and telephone metadata. The publicly released version of Kollar-Kotelly's opinion does not discuss the operation of the program during the period before the application for court approval. The filings Monday came in continuing legal wrangling over obligations pending lawsuits may create for the NSA to hang on to aging metadata that it would ordinarily have been required to erase under FISC orders. A federal judge in San Francisco has required that the NSA preserve that data, at least for now, rather than erasing it.
Paul Merrell

Half of Federal Agencies Still Use Outdated Freedom of Information Regulations - 0 views

www2.gwu.edu/...NSAEBB460

transparency Obama FOIA-regulations

shared by Paul Merrell on 15 Mar 14 - No Cached
  • Nearly half (50 out of 101) of all federal agencies have still not updated their Freedom of Information Act regulations to comply with Congress's 2007 FOIA amendments, and even more agencies (55 of 101) have FOIA regulations that predate and ignore President Obama's and Attorney General Holder's 2009 guidance for a "presumption of disclosure," according to the new National Security Archive FOIA Audit released today to mark Sunshine Week. Congress amended the Freedom of Information Act in 2007 to prohibit agencies from charging processing fees if they missed their response deadlines, to include new online journalists in the fee waiver category for the media, to order agencies to cooperate with the new FOIA ombudsman (the Office of Government Information Services, OGIS), and to require reports of specific data on their FOIA output, among other provisions co-authored by Senators Patrick Leahy (D-VT) and John Cornyn (R-TX). But half the government has yet to incorporate these changes in their regulations, according to the latest National Security Archive FOIA Audit. After President Obama's "Day One" commitments to open government, Attorney General Eric Holder issued new FOIA guidance on March 19, 2009, declaring that agencies should adopt a "presumption of disclosure," encourage discretionary releases if there was no foreseeable harm (even if technically covered by an exemption), proactively post the records of greatest public interest online, and remove "unnecessary bureaucratic hurdles" from the FOIA process. But five years later, the Archive found a majority of agencies have old regulations that simply ignore this guidance.
  • The Archive's FOIA Audit also highlights some good news this Sunshine Week: New plans from both the House of Representatives and White House have the potential to compel delinquent agencies to update their regulations. "Both Congress and the White House now recognize the problem of outdated FOIA regulations, and that is something to celebrate," said Archive director Tom Blanton. "But new regs should not follow the Justice Department's terrible lead, they must follow the best practices already identified by the FOIA ombuds office and FOIA experts." "If and when this important FOIA reform occurs, open government watchdogs must be vigilant to ensure that the agencies' updated regulations are progressive, rather than regressive, and embrace best practices to ensure that more documents are released to requesters, more quickly" said Nate Jones, the Archive's FOIA coordinator.
  • In 2011, the back-to-back Rosemary Award-winning Department of Justice proposed FOIA regulations that would have — among many other FOIA setbacks — allowed the Department to lie to FOIA requesters, eliminated online-only publications from receiving media fee status, and made it easier to destroy records. After intense pushback by openness advocates, the DOJ temporarily pulled these regulations, and Pustay claimed, "some people misinterpreted what we were trying to do, misconstrued some of the provisions, and didn't necessarily understand some of the fee guidelines." Pustay also claimed — to an incredulous Senate Judiciary Committee — that updating FOIA regulations to conform with the 2007 OPEN Government Act was merely optional and "not required." National Security Archive director Tom Blanton warned in his own 2013 Senate testimony that these terrible "vampire" regulations were not gone for good. This year, Pustay testified that the Department of Justice has indeed resubmitted its FOIA regulations for OMB approval; their content is unknown to the public.
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  • The House of Representatives recently unanimously passed the bipartisan Freedom of Information Act Implementation Act (H.R. 1211), which includes a provision compelling agencies to update their FOIA regulations. The House bill — which now awaits Senate approval — would require each agency to update its FOIA regulations "not later than 180 days after the enactment of this Act." The White House is also addressing the problem of outdated FOIA regulations, albeit in a different manner. In its latest Open Government Partnership National Action Plan, the White House has committed (on paper, at least) to creating one "core FOIA regulation and common set of practices [that] would make it easier for requesters to understand and navigate the FOIA process and easier for the Government to keep regulations up to date." Transparency watchdogs went on alert this week after the Department of Justice's Director of Information Policy Melanie Pustay announced during her Senate testimony on March 11, 2014 that, "My office is leading that project" to create the White House-backed common regulation which, she estimated will be, "a one or two year project." Despite Pustay's pledge that she would accept input from OGIS and the requester community, her Department's history of crafting FOIA regulations has been anything but stellar.
  • As the Department of Justice and other agencies have demonstrated, new regulations do not necessarily make good regulations. As such, the National Security Archive has recommended that any updated FOIA regulations must: mandate that FOIA officers embrace direct communications with requesters; require agencies to receive requests by e-mail and post all responses and documents online; direct agencies to update their FOIA processing software so documents can be posted to any online repository, including the government-sponsored FOIAonline; encourage agencies to join FOIAonline to make their FOIA processing more cost-effective and efficient; stream-line inter and intra-agency "referral" black holes — and keep requesters abreast of where their requests are if the agency does have to refer them; include language encouraging use of the OGIS, which can help requesters and agencies mediate disputes to avoid animosity and costly litigation; end the practice of using fees to discourage FOIA requesters. The Office of Government Information Services — which reviews and comments on agency regulations as they are proposed — has also compiled a list of best practices for agencies to consider while crafting regulations. These include: "let the Freedom of Information Act itself" — and its presumption for disclosure — "be your guide;" bring attorneys, FOIA processors, records managers and IT pros to the table; include your plan for records management and preservation; and alert requesters of their option to contact OGIS for mediation and dispute resolution services.
  • A useful compilation of current agency FOIA regulation language — already on the books — put together by the Center of Effective Government also includes helpful guidelines on preventing the destruction of requested records; narrowly interpreting claims of confidential business information; and clarifying fee waivers and procedures. FOIA experts are currently working to craft model, pro-transparency, CFR-ready language that agencies — or the drafters of government-wide common regulations — can use to bring agencies' Freedom of Information Act regulations up to standard. Watch this space, and then watch the Code of Federal Regulations (CFR). "As the staffer who waded through every single federal agencies' FOIA website and CFR chapter to locate their — sometimes hidden — regulations, I learned FOIA officials often say they view their FOIA requesters as customers," said Archive researcher Lauren Harper, "I think easy to find, updated model FOIA regulations are the best way for agencies to demonstrate they truly value their customer service, and the spirit of the FOIA."
  • The National Security Archive has conducted thirteen FOIA audits since 2002. Modeled after the California Sunshine Survey and subsequent state "FOI Audits," the Archive's FOIA Audits use open-government laws to test whether or not agencies are obeying those same laws. Recommendations from previous Archive FOIA Audits have led directly to laws and executive orders which have: set explicit customer service guidelines, mandated FOIA backlog reduction, assigned individualized FOIA tracking numbers, forced agencies to report the average number of days needed to process requests, and revealed the (often embarrassing) ages of the oldest pending FOIA requests. The surveys include:
  • Paul Merrell on 15 Mar 14
     
    Article includes tables indicating which agencies are out of compliance with which FOIA directives. 
Paul Merrell

NSA phone surveillance program likely unconstitutional, federal judge rules | World new... - 0 views

www.theguardian.com/...-likely-unconstitutional-judge

surveillance state NSA call-metadata litigation 4th Amendment constitutional law NSA-blowback

shared by Paul Merrell on 17 Dec 13 - No Cached
  • A federal judge in Washington ruled on Monday that the bulk collection of Americans’ telephone records by the National Security Agency is likely to violate the US constitution, in the most significant legal setback for the agency since the publication of the first surveillance disclosures by the whistleblower Edward Snowden. Judge Richard Leon declared that the mass collection of metadata probably violates the fourth amendment, which prohibits unreasonable searches and seizures, and was "almost Orwellian" in its scope. In a judgment replete with literary swipes against the NSA, he said James Madison, the architect of the US constitution, would be "aghast" at the scope of the agency’s collection of Americans' communications data. The ruling, by the US district court for the District of Columbia, is a blow to the Obama administration, and sets up a legal battle that will drag on for months, almost certainly destined to end up in the supreme court. It was welcomed by campaigners pressing to rein in the NSA, and by Snowden, who issued a rare public statement saying it had vindicated his disclosures. It is also likely to influence other legal challenges to the NSA, currently working their way through federal courts.
  • In Monday’s ruling, the judge concluded that the pair's constitutional challenge was likely to be successful. In what was the only comfort to the NSA in a stinging judgment, Leon put the ruling on hold, pending an appeal by the government. Leon expressed doubt about the central rationale for the program cited by the NSA: that it is necessary for preventing terrorist attacks. “The government does not cite a single case in which analysis of the NSA’s bulk metadata collection actually stopped an imminent terrorist attack,” he wrote.
  • Leon’s opinion contained stern and repeated warnings that he was inclined to rule that the metadata collection performed by the NSA – and defended vigorously by the NSA director Keith Alexander on CBS on Sunday night – was unconstitutional. “Plaintiffs have a substantial likelihood of showing that their privacy interests outweigh the government’s interest in collecting and analysing bulk telephony metadata and therefore the NSA’s bulk collection program is indeed an unreasonable search under the fourth amendment,” he wrote. Leon said that the mass collection of phone metadata, revealed by the Guardian in June, was "indiscriminatory" and "arbitrary" in its scope. "The almost-Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979," he wrote, referring to the year in which the US supreme court ruled on a fourth amendment case upon which the NSA now relies to justify the bulk records program.
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  • In a statement, Snowden said the ruling justified his disclosures. “I acted on my belief that the NSA's mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts," he said in comments released through Glenn Greenwald, the former Guardian journalist who received leaked documents from Snowden. "Today, a secret program authorised by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.”
  • In his ruling, Judge Leon expressly rejected the government’s claim that the 1979 supreme court case, Smith v Maryland, which the NSA and the Obama administration often cite to argue that there is no reasonable expectation of privacy over metadata, applies in the NSA’s bulk-metadata collection. The mass surveillance program differs so much from the one-time request dealt with by the 1979 case that it was of “little value” in assessing whether the metadata dragnet constitutes a fourth amendment search.
  • In a decision likely to influence other federal courts hearing similar arguments from the ACLU, Leon wrote that the Guardian’s disclosure of the NSA’s bulk telephone records collection means that citizens now have standing to challenge it in court, since they can demonstrate for the first time that the government is collecting their phone data.
  • Leon also struck a blow for judicial review of government surveillance practices even when Congress explicitly restricts the ability of citizens to sue for relief. “While Congress has great latitude to create statutory schemes like Fisa,” he wrote, referring to the seminal 1978 surveillance law, “it may not hang a cloak of secrecy over the constitution.”
  • In his ruling on Monday, Judge Leon predicted the process would take six months. He urged the government to take that time to prepare for an eventual defeat. “I fully expect that during the appellate process, which will consume at least the next six months, the government will take whatever steps necessary to prepare itself to comply with this order when, and if, it is upheld,” wrote Leon in his opinion. “Suffice it to say, requesting further time to comply with this order months from now will not be well received and could result in collateral sanctions.”
  • Paul Merrell on 17 Dec 13
     
    This is the case I thought was the weakest because of poor drafting in the complaint. The judge noted those issues in dismissing the plaintiffs' claims under the Administrative Procedures Act, but picked his way through what remained to find sufficient allegations to support the 4th Amendment challenge. Because he ruled for the plaintiffs on the 4th Amendment count, the judge did not reach the plaintiffs' arguments under the First and Fifth Amendments. This case is about cellphone call metadata, which the FISA Court has been ordering cell phone companies to provide every day, with the orders updated every 90 days. The judge's 68-page opinion is at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv0881-40 (cleaner copy than the Guardian's, which was apparently faxed). Notably, the judge, Richard Leon, is a Bush II appointee and one of the plaintiffs is a prominent conservative civil libertarian lawyer. The other plaintiff is the father of an NSA cryptologist who worked closely with SEAL Team 6 and was killed along with members of that team when their helicopter crashed in Afghanistan. I'll add some more in a comment. But digital privacy is not yet dead.
  • Paul Merrell on 17 Dec 13
     
    Unfortunately, DRM is not dead yet either and the court's PDF file is locked. No easy copying of its content. If you want to jump directly to the discussion of 4th Amendment issues, go to page 35. That way, you can skip past all the dreary discussion of the Administrative Procedures Act claim and you won't miss much that's memorable. In ruling on the plaintiffs' standing to raise the 4th Amendment claim, Judge Leon postulated two possible search issues: [i] the bulk daily collection of metadata and its retention in the database for five years; and [ii] the analysis of that data through the NSA's querying process. The judge had no difficulty with the first issue; it definitely qualifies as a search. But the judge rejected the plaintiffs' argument on the second type (which was lame), demonstrating that at least one federal judge understands how computers work. The government's filings indicated that a "seed" telephone number or other identifier is used as the query string. Judge Leon figured out for himself from this fact that the NSA of necessity had to compare that number or identifier to every number or identifier in its database looking for a match. The judge concluded that the plaintiffs' metadata --- indeed everyone's metadata --- had to be searched for comparison purposes *every* time the NSA analysts ran any query against the database. See his incisive discussion at pp. 39-41. So having established that two searches were involved, one every time the NSA queried the database, the judge moved on to the next question, whether "the plaintiffs had a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains that metadata for five years, and then queries, analyzes, and investigates that data without prior judicial approval of the investigative targets." pg. 43. More later
Paul Merrell

The Strange Case of the Forgotten Gitmo Detainee - Raymond Bonner - POLITICO Magazine - 0 views

www.politico.com/...t-court-guantanamo-117833.html

war & peace GITMO CIA Zubaydah habeas litigation delay

shared by Paul Merrell on 14 May 15 - No Cached
  • ince being seized in a raid in Pakistan in 2002, Abu Zubaydah has had his life controlled by American officials, first at secret sites where he was tortured, and since 2006 in a small cell in Guantanamo Bay, Cuba. And, thanks to one of the strangest—and perhaps most troubling—legal cases to grow out of the War on Terror, it appears he’s not going to be leaving anytime soon, which was exactly what the CIA always intended. Today, not even his lawyers understand what’s transpired behind closed doors in a Washington, D.C., courtroom. In June 2008, the Supreme Court ruled that detainees at Guantanamo had the right to challenge their imprisonment in federal court and that their cases should be handled “promptly” by the judicial system. The next month, lawyers for Abu Zubaydah, a detainee whose torture and waterboarding in secret prisons was among the most notorious of the Bush years, filed a lawsuit in federal court challenging his detention. The progress of that case has been anything but prompt. While more than 100 Guantanamo detainees have been released since then, and the military tribunals of even more high-profile detainees like 9/11 mastermind Khalid Sheikh Mohammed are moving forward in Guantanamo’s courtrooms, the federal judge hearing Zubaydah’s case has failed to rule on even the preliminary motions.
  • The seemingly intentional inaction has left even experienced court observers baffled. Richard W. Roberts, the U.S. District Court judge handling the suit, is not a particularly slow-moving jurist. His median time for resolving entire cases is slightly over two years; Zubaydah’s case has already been pending 6 years 9 months and 13 days. Because almost the entire file has been kept secret, it’s not possible to know why Roberts, who is the chief judge of the D.C. circuit, has let Zubaydah’s case languish. But this much is clear: Keeping Zubaydah from telling his story is exactly what the CIA wanted from the moment it began to torture him. And it’s exactly what they promised they’d do in 2002 during one of the darkest chapters of the War on Terror. Abu Zubaydah was one of the first al Qaeda suspects to face the harsh new regime implemented by the CIA following 9/11—a regime that FBI agents at the scene tried to prevent.
  • Soon after the agency’s contractors began their program of “enhanced interrogation” at the secret black site in Thailand—placing him in a coffin-size box, slamming him against wall, depriving him of sleep, bombarding him with loud music, as well as waterboarding—they sent an encrypted cable to Washington. The CIA interrogators said that if Zubaydah died during questioning, his body would be cremated. And if he survived the ordeal, the interrogators wanted assurances that he would “remain in isolation and incommunicado for the remainder of his life.” Senior officials gave the assurances. Zubaydah, a Saudi citizen, “will never be placed in a situation where he has any significant contact with others and/or has the opportunity to be released,” the head of the CIA’s ALEC Station, the code name of the Washington-based unit hunting Osama bin Laden, replied. “All major players are in concurrence,” the cable said, that he “should remain incommunicado for the remainder of his life.”
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  • The decision to hold Zubaydah “incommunicado” was disclosed by the Senate report on torture, which was released last December. But the judicial inaction on his case has received virtually no public attention. In all, Roberts has failed to rule on 16 motions, 13 of which have been filed by Zubaydah’s lawyers. Several of those allege misconduct by the government.
  • Paul Merrell on 14 May 15
     
    There's an old saying in the Anglo legal tradition, "justice delayed is justice denied." To delay a habeas corpus proceeding is the antithesis of what that writ is all about; promptly freeing those unlawfully held. 
Paul Merrell

Wikipedia takes feds to court over spying | TheHill - 0 views

thehill.com/...nsa-for-spying-on-web-backbone

suveillance-state NSA DoJ Wikimedia litigation

shared by Paul Merrell on 28 Sep 15 - No Cached
  • The foundation behind Wikipedia is suing the U.S. government over spying that it says violates core provisions of the Constitution.The Wikimedia Foundation joined forces on Tuesday with a slew of human rights groups, The Nation magazine and other organizations in a lawsuit accusing the National Security Agency (NSA) and Justice Department of violating the constitutional protections for freedom of speech and privacy.
  • If successful, the lawsuit could land a crippling blow to the web of secretive spying powers wielded by the NSA and exposed by Edward Snowden nearly two years ago. Despite initial outrage after Snowden’s leaks, Congress has yet to make any serious reforms to the NSA, and many of the programs continue largely unchanged.The lawsuit targets the NSA’s “upstream” surveillance program, which taps into the fiber cables that make up the backbone of the global Internet and allows the agency to collect vast amounts of information about people on the Web.“As a result, whenever someone overseas views or edits a Wikipedia page, it’s likely that the N.S.A. is tracking that activity — including the content of what was read or typed, as well as other information that can be linked to the person’s physical location and possible identity,” Tretikov and Wikipedia founder Jimmy Wales wrote in a joint New York Times op-ed announcing the lawsuit. Because the operations are largely overseen solely by the secretive Foreign Intelligence Surveillance Court — which operates out of the public eye and has been accused of acting as a rubber stamp for intelligence agencies — the foundation accused the NSA of violating the guarantees of a fair legal system.In addition to the Wikimedia Foundation and The Nation, the other groups joining the lawsuit are the National Association of Criminal Defense Lawyers, Human Rights Watch, Amnesty International, the Pen American Center, the Global Fund for Women, the Rutherford Institute and the Washington Office on Latin America. The groups are being represented by the American Civil Liberties Union.
  • In 2013, a lawsuit against similar surveillance powers brought by Amnesty International was tossed out by the Supreme Court on the grounds that the organization was not affected by the spying and had no standing to sue. That decision came before Snowden’s leaks later that summer, however, which included a slide featuring Wikipedia’s logo alongside those of Facebook, Yahoo, Google and other top websites. That should be more than enough grounds for a successful suit, the foundation said. In addition to the new suit, there are also a handful of other outstanding legal challenges to the NSA’s bulk collection of Americans’ phone records, a different program that has inspired some of the most heated antipathy. Those suits are all pending in appeals courts around the country.
Paul Merrell

Judge scolds feds for slow-walking Clinton aide's emails | TheHill - 0 views

thehill.com/...ow-walking-clinton-aide-emails

Auction 2016 Hillary-emails litigation

shared by Paul Merrell on 23 Sep 15 - No Cached
  • A federal judge on Tuesday scolded Obama administration lawyers for dragging their feet in handing over documents from top aides to Hillary Clinton.Judge Emmet Sullivan of the U.S. District Court for The District of Columbia suggested that the State Department needs to divert resources to deal with the onslaught of lawsuits seeking to get a hold of emails from Clinton, Huma Abedin and Cheryl Mills.“There has to be some reallocation of resources. There has to be,” he told a pair of government lawyers. “Because these are atypical cases.”ADVERTISEMENTThe State Department, he added, is treating the demands as if “it’s business as usual.”“This case is important to the public,” Sullivan added. “The public is clamoring for the information. Everybody is clamoring for the information.“You have to find the resources.”
  • The case is one of dozens of lawsuits against the department that seek information that involves Clinton’s emails.In the case, launched by conservative advocacy group Citizens United, government lawyers had attempted to delay the deadline for them to hand over documents until at least December.Though even that was merely a “hope date,” Department of Justice Lawyer Caroline Anderson said.The government wouldn’t be able to send out the documents until it had a chance to fully upload them into its digital system, search for the requested terms and then do a line-by-line search to see whether the emails were relevant or needed to be classified for one reason or the other.But the case has lingered for months, and lawyers representing Citizens United accused the government of doing little to speed up the process.“The government knew in the summer of this year that they had a problem, but they waited,” Matthew McGill told the judge.
  • Citizens United's case asked for correspondence between Clinton's former chief of staff Mills, longtime aide Abedin and officials from the Clinton Foundation as well as correspondence about Abedin's part-time work for a consulting firm while also working in the State Department.There are more than 30 lawsuits pending against the State Department seeking to enforce Freedom of Information Act (FOIA) requests for some combination of the tens of thousands of emails from Clinton and other top aides during their time at the State Department.The email requests have been complicated by the revelation earlier this year that Clinton relied exclusively on a personal email address housed on a private server during her tenure as secretary of State. Abedin, Mills and other top aides also used personal email accounts during their time assisting Clinton.In response, the emails have grown to consume a larger and larger portion of work for the 63 full-time employees and one part-timer that the State Department employs to respond to FOIA requests. The department has also brought on the part-time help of 40 Foreign Service officers to assist in the search.
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  • Sullivan ordered the department to finish uploading Abedin's and Mills’s emails and conduct an initial search on them by next Friday. 
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

Court Denies Motion to Dismiss State Secrets Case - 0 views

fas.org/...ssp-denial

government secrecy state-secrets Restis litigation court-order

shared by Paul Merrell on 31 Oct 14 - No Cached
  • A federal court yesterday denied a government motion to dismiss a pending lawsuit that the Obama Administration said involved state secrets. It appears to be the first time that such a motion for dismissal has ever been rejected in a state secrets case. [Update: Not so. There was a previous instance; see below.] The lawsuit, Gulet Mohamed v. Eric H. Holder, concerns the constitutionality of the “no fly” list. The government filed its dismissal motion last May 28. It included a declaration from Attorney General Eric Holder in which he asserted “a formal claim of the state secrets privilege in order to protect the national security interests of the United States.” An accompanying memorandum of law elaborated on the government’s claim. In August, Judge Anthony J. Trenga of the Eastern District of Virginia ordered the government to provide copies of the assertedly privileged documents for his in camera review. After initially resisting and seeking reconsideration of that order, the government complied. Based on his review, Judge Trenga yesterday issued his order denying the government motion for dismissal of the case. He said that “the information presented to date by the defendants in support of the state secrets privilege as to these documents is insufficient” to justify suspending the proceeding, though he declined to rule definitively on whether the state secrets privilege did or did not apply to any of the documents. He did allow that some of the documents appear to contain security sensitive information that may be subject to a law enforcement privilege.
  • Paul Merrell on 31 Oct 14
     
    According to the Order, plaintiff's counsel will be allowed to participate in the in camera review of the disputed documents under terms of a protective order. Courts have been noticeably more hostile to government claims of secrecy since Edward Snowden's disclosures.
Paul Merrell

Mubarak, Nazif to be investigated for allegedly serving as proxy for US torture | Cairo... - 0 views

www.thecairopost.com/...erving-as-proxy-for-us-torture

war & peace torture CIA rendition Egypt Iraq false-flag

shared by Paul Merrell on 05 Feb 15 - No Cached
  • CAIRO: Former President Hosni Mubarak and his former Prime Minister Ahmed Nazif will be investigated for serving as a proxy to torture U.S. prisoners, Youm7 reported Wednesday. Attorney General Hisham Barakat referred the case, filed by lawyer Samir Sabry, to the Supreme State Security prosecution. Sabry noted in his litigation that Egypt was cited in the December Senate CIA report as having tortured detainees in extraordinary rendition under the Mubarak regime. In his 2007 book The Guantanamo Files, British investigative journalist Andy Worthington wrote that a Libyan was rendered in 2003 to Egypt where he was tortured to make “a false confession that two al-Qaeda operatives had been receiving information from Saddam Hussein about the use of chemical and biological weapons, which was subsequently used to justify the invasion of Iraq in March 2003.”
  • In 2009, a former Pakistani Guantanamo detainee detailed his torture in Egypt after the CIA sent him to Cairo. Muhammad Saad Iqbal was arrested in Jakarta in 2002 over supporting an Islamic group, but he was transported days after being arrested to Egypt where he were beaten, shackled, received electroshocks and was sleep-deprived for six months, the New York Times reported in 2009. Iqbal, who was released in 2008, confessed under torture that he had met with Osama bin Laden. Mubarak, who is still jailed, was acquitted of graft, and charges of murdering January 25 Revolution protesters were dropped in November. His appeal over a three-year sentence for embezzling funds was accepted earlier in January. His two sons, Gamal and Alaa, walked free late January pending an embezzlement lawsuit, after serving the maximum remand period of two years.
Paul Merrell

Court to Weigh Judicial Approval of "No Fly" Cases - 0 views

fas.org/...no-fly-judicial

war & peace politics-of-fear no-fly-list litigation right-to-travel

shared by Paul Merrell on 05 Feb 15 - No Cached
  • In a pending lawsuit challenging the constitutionality of the “no fly” list, in which the government has asserted the state secrets privilege, a federal court signaled that it would consider requiring judicial approval of “no fly” determinations involving U.S. citizens. Judge Anthony J. Trenga, who presides over the case Gulet Mohamed v. Eric Holder in the Eastern District of Virginia, set a hearing on February 24 to allow the government to supplement its argument that the case must be dismissed on state secrets grounds. Judge Trenga has previously rejected government arguments that state secrets required dismissal of the case and concluded the case could proceed without the assertedly privileged documents. (Secrecy News, 10/31/14). In a February 2 order, he told the government to be prepared to explain “how the under seal documents as to which the state secrets privilege is claimed preclude adjudication of the procedural due process claims without their use and disclosure.”
  • Beyond that, however, Judge Trenga hinted at a possible remedy to the constitutional challenge before the court involving independent judicial review of “no fly” determinations. He asked the government to address “whether, and if so how, national security considerations make it impractical or otherwise undesirable to submit for ex parte, in camera judicial review and approval the placement of United States citizens on the No Fly List, either before a citizen’s placement on the No Fly List or within a specific time period after placement on the No Fly List.” The upcoming hearing will be closed and ex parte.
Paul Merrell

Morgan Stanley strikes $2.6bn deal to settle mortgage bubble case | Business | The Guar... - 0 views

www.theguardian.com/...nt-settle-mortgage-bubble-case

banksters Morgan-Stanley fraud litigation settlements

shared by Paul Merrell on 28 Feb 15 - No Cached
  • Morgan Stanley has agreed to pay $2.6bn to settle federal charges over its role in the mortgage bubble and subsequent financial crisis.
  • The investment bank said late on Wednesday the $2.6bn will go to “resolve certain claims” the Justice Department intended to bring against Morgan Stanley. The settlement was disclosed in regulatory filing. Those specific claims were not disclosed. Morgan Stanley said in January it increased its legal reserves by $2.8bn to cover ongoing issues with its residential mortgage-backed securities division. Morgan is the latest bank, just like Citigroup, Bank of America and JPMorgan Chase, to pay billions to settle pending charges related to its role in the 2008 financial crisis. The Justice Department declined to comment. The agreement has not been finalised and could fall though.
Paul Merrell

No Fly List: Govt Offers New Redress Procedures - 0 views

fas.org/...no-fly-redress

war & peace no-fly-list Due-Process

shared by Paul Merrell on 14 Apr 15 - No Cached
  • The government will no longer refuse to confirm or deny that persons who are prevented from boarding commercial aircraft have been placed on the “No Fly List,” and such persons will have new opportunities to challenge the denial of boarding, the Department of Justice announced yesterday in a court filing. Until now, the Government refused to acknowledge whether or not an individual traveler had been placed on the No Fly List and, if so, what the basis for such a designation was. That is no longer the case, the new court filing said: “Under the previous redress procedures, individuals who had submitted inquiries to DHS TRIP [the Department of Homeland Security Traveler Redress Inquiry Program] generally received a letter responding to their inquiry that neither confirmed nor denied their No Fly status.” “Under the newly revised procedures, a U.S. person who purchases a ticket, is denied boarding at the airport, subsequently applies for redress through DHS TRIP about the denial of boarding, and is on the No Fly List after a redress review, will now receive a letter providing his or her status on the No Fly List and the option to receive and/or submit additional information.”
  • If the individual traveler chooses to pursue the matter, DHS “will provide a second, more detailed response. This second letter will identify the specific criterion under which the individual has been placed on the No Fly List and will include an unclassified summary of information supporting the individual’s No Fly List status, to the extent feasible, consistent with the national security and law enforcement interests at stake.” The new redress procedures were developed in response to legal challenges to the No Fly List procedures, which argued that the procedures were constitutionally deficient or otherwise improper. The notice of the new procedures was filed yesterday in the pending lawsuit Gulet Mohamed v. Eric H. Holder, Jr., which is one of the ongoing lawsuits over the No Fly List.
  • The CRS report, which predates the newly announced procedures, reviewed many of the legal issues involved. See The No Fly List: Procedural Due Process and Hurdles to Litigation, April 2, 2015.
  • Paul Merrell on 14 Apr 15
     
    Still not good enough. There should be no no-fly list. And if we are to have one anyway, people should be notified before or at the time they are placed on the list Finding out only when you arrive at the airport and are denied boarding is B.S.  Say I decide I want to work in Thailand for a few years teach English as a second language. I arrange for a job there, make the initial payment for rental of housing, get rid of most of my possessions, sell my house, and make other arrangements for a long-term absence from the U.S. Then I get to the airport and learn I'm not allowed to leave the U.S. This is bureaucracy gone nuts, Kafkaeque.   
Paul Merrell

Months After Appeals Argued, NSA Cases Twist in the Wind - US News - 0 views

www.usnews.com/...ed-nsa-cases-twist-in-the-wind

surveillance state NSA 215 litigation bulk-collection

shared by Paul Merrell on 15 Apr 15 - No Cached
  • Three cases that likely lay the groundwork for a major privacy battle at the U.S. Supreme Court are pending before federal appeals courts, whose judges are taking their time announcing whether they believe the dragnet collection of Americans' phone records is legal. It’s been more than five months since the American Civil Liberties Union argued against the National Security Agency program in New York, three months since legal activist Larry Klayman defended his thus far unprecedented preliminary injunction win in Washington, D.C., and two months since Idaho nurse Anna Smith’s case was heard by appeals judges in Seattle. At the district court level, judges handed down decisions about a month after oral arguments in the cases. It’s unclear what accounts for the delay. It’s possible judges are meticulously crafting opinions that are likely to receive wide coverage, or that members of the three-judge panels are clashing on the appropriate decision.
  • Attorneys involved in the cases understandably are reluctant to criticize the courts, but all express hope for speedy resolution of their fights against alleged violations of Americans’ Fourth Amendment rights.
  • Though it’s difficult to accurately predict court decisions based on oral arguments, opponents of the mass surveillance program may have reason for optimism.
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  • Two executive branch review panels have found the dragnet phone program has had minimal value for catching terrorists, its stated purpose. After years of presiding over the collection and months of publicly defending it, President Barack Obama pivoted last year and asked Congress to pass legislation ending the program. A measure to do so failed last year.
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