by James Oliphant

The House Judiciary Committee this morning took the next step toward a confrontation with the White House over the issue of harsh interrogation techniques.

It voted to subpoena David Addington, the vice president's chief of staff, to force him to testify about anti-terrorism legal policy he played a primary role in crafting.

Addington refused to appear this morning at a Judiciary hearing designed to probe into the legal advice given the White House in the wake of the Sept. 11 attacks.

If he chooses not to respond to the subpoena, it could set up a constitutional showdown over executive branch authority.

Addington, along with former Justice Department lawyer John Yoo and other high-level administration officials such as Pentagon aide Douglas Feith and CIA director George Tenet, have said that any work they did crafting legal policy is protected from disclosure by the doctrine of executive privilege, which prevents advice given the president from being forcibly revealed.

However, the Associated Press reported Tuesday that Yoo, Feith, former Atty. Gen. John Ashcroft and others have agreed to testify before the committee and that Tenet was in negotiations to do so.

That doesn't mean, however, that they cannot invoke executive privilege when they testify.

by James Oliphant

The House Judiciary Committee Tuesday will again attempt to delve into the thicket of legal advice given the Bush administration concerning its detention and interrogation policies for suspected terrorists.

The hearing is billed "From the Department of Justice to Guantánamo Bay: Administration Lawyers and Administration Interrogation Rules," but it could be less than dramatic.

The committee's chairman, John Conyers Jr. (D-Mich.), requested that current and former administration officials such as David Addington, chief of staff to Vice President Dick Cheney, ex-Atty. Gen. John Ashcroft, former Justice Department lawyer John Yoo appear to testify and former Pentagon official Douglas Feith. All have declined, citing, among other reasons, that their work was privileged. Conyers has threatened to subpoena them.

A similar conflict regarding the administration and executive privilege is playing out in the Senate over the U.S. attorney firings. That has resulted in litigation in the U.S. District Court in Washington.

It was Yoo's 2003 memo, released just last month, that triggered another round of criticism about the administration's anti-terror policies. That memo concluded that neither the U.S Constitution, existing federal law, nor the Geneva Conventions prevented the government from using aggressive interrogation measures. The memo was later rescinded as government policy.

In advance of the hearing, Amnesty International has released a new commercial, centered around the practice of waterboarding, the interrogation method that simulates drowning.(See above.)

Earlier this year, the head of the Central Intelligence Agency, Michael Hayden, told Congress that three detainees had been waterboarded, but none since 2003.

You can read the exchanges between Conyers and lawyers for Addington and others here.

by James Oliphant

The Pentagon announced today that nine more detainees had been released from the prison at Guantanamo Bay, Cuba.

Five are being transferred to Afghanistan, three to the Sudan, and one to Morocco. The Defense Department says all nine were determined to be released following "a comprehensive series of review processes."

"The transfer is a demonstration of the United States' desire not to hold detainees any longer than necessary," the Pentagon said in a statement. "It also underscores the processes put in place to assess each individual and make a determination about their detention while hostilities are ongoing - an unprecedented step in the history of warfare."

Once a detainee is determined to be eligible for transfer, the United States negotiates with his home country to return him.

Amnesty International has attempted to monitor the transfers. One of the detainees, the organization said, is a former Al Jazeera cameraman, Sami al Hajj, who was held at Guantanamo for almost six years. There, the group says, he went on a prolonged hunger strike.

(AP Photo/Themba Hadebe)

by Frank James

False positives in any kind of warning system are a bad thing, whether they're produced by an overly sensitive screening procedure for dangerous, blood-borne viruses or al Qaeda terrorists.

Any screening approach that gives off a lot of bad hits adds to overall costs, and wastes time and attention needed to deal with the actual threat.

If you're getting a lot of false positives, you've got a problem that needs fixing and quickly.

Unless, that is, you're the federal government which appears to be stuck with a terrorism watch list that gives off many false positives and yet seems unable to do much about it.

The latest example of this is found in a USA Today story by Mimi Hall who writes that the U.S. terrorism watch list contains the name of Nelson Mandela, the 89-year old Nobel Peace Prize laureate and former president of South Africa, one of the most beloved and respected human beings on the planet.

Mandela and other South African officials are on the terrorist list because they're members of the African National Congress, South Africa's dominant political party.

Before it came to power in 1994 however, the ANC used violence to overthrow the racist apartheid regime in South Africa, a government which labeled it a terrorist group. And it is still evidently listed that way for U.S. terror watch list purposes.

by James Oliphant

The Senate Judiciary Committee Thursday approved a bill that attempts to limit the government's use of the state secrets privilege, a broad-based evidentiary claim based on national security concerns that the Bush administration has used frequently in court cases involving the government.

Federal courts have routinely dismissed lawsuits over the National Security Agency's warrantless wiretapping program and the government's use of detention, interrogation and "extraordinary rendition" after the privilege has been cited because the suits cannot proceed with the requested evidence.

The government has even been able to use it successfully in cases in which it isn't the defendant, such as the wiretapping suits against telecom companies, to knock out the claims.

A federal judge in Chicago Wednesday took the rare step of disagreeing with the government's use of the privilege in a case involving the Department of Homeland Security's terrorist watch list, saying the plaintiff, a local businessman, could find out whether his name is on the list.

by James Oliphant

The American Civil Liberties Union Thursday filed suit against the Department of Defense in a Washington, D.C. federal court, seeking records related to all deaths of detainees at Guantanamo Bay.

The suit, filed under the Freedom of Information Act, asks for all records relating to deaths, attempted suicides and attempted homicides since January 2002. It specifically mentions four prisoner deaths, labeled by the government as suicides.

The group alleges that because of Pentagon policies and practices at Guantanamo Bay, which they say includes prisoner abuse, "hunger strikes and suicide attempts began soon after the camp opened." And it points to media reports that suggest that 41 suicide attempts had occurred by June 2006.

It complains that administration officials have not taken such problems seriously, instead labeling them "asymmetric warfare" and "PR move." The Bush administration has declared the prisoners to be "enemy combatants," but does not consider them prisoners of war who must be given rights under by the Geneva Conventions.

“Over six years into Guantánamo’s existence, there have been dozens of suicide attempts and four apparent suicides and yet the Bush administration refuses to come clean about what happened, when, and most importantly, why,” said Hina Shamsi, staff attorney with the ACLU National Security Project, in a statement. “The secrecy surrounding deaths at Guantánamo hides the dire consequences of indefinite detention from the American public. The prison camp is a blight on America’s conscience and the public needs to know the truth about what is going on there.”

When three suicides occurred in June 2006, deputy assistant Secretary of Defense Cully Stimson said, "What I would say is that we are always concerned when someone takes his own life. Because as Americans, we value life, even the lives of violent terrorists who are captured waging war against our country," he said.

About 280 detainees remain at the Cuban base, less than half of the prison's population at its peak.

You can read the ACLU's complaint here.

by Frank James

In his testimony before the Senate Armed Services Committee this morning, Gen. David Petraeus called for a controversial 45-day pause in U.S. troop drawdowns after the reduction of American surge forces is completed in July.

That pause would allow U.S. officials to reassess security conditions in Iraq which would dictate the pace of future reductions of U.S. troops, the top American commander in Iraq told the senators.

To do otherwise would risk the fragile improvements in security achieved by U.S. and American forces since the surge began early last year, said Petraeus, who outlined the successes and challenges ahead for U.S. and Iraq officials and warned that the gains reached so far were "reversible."

Also, Petraeus was sure to draw the ire of anti-war members of Congress for warning that if the U.S. did not stick with his program, that would be giving the al Qaeda terrorist group a greenlight to get busy expanding its role in Iraq. Many critics have accused the Bush Administration of hyping the al Qaeda threat in Iraq in order to continue high troop levels there.

Petreaus's position wasn't a surprise since the idea of a pause has been discussed by Bush Administration and U.S. military officials. But his official testimony now gives the debate over how to proceed in Iraq another jolt of momentum.

Petraeus said:

"After weighing these factors I recommended to my chain of command that we continue the drawdown in the surge combat forces and that upon the withdrawal of the last surge brigade combat team in July, we undertake a 45-day period of consolidation and evaluation.

At the end of that period we'll commence a process of assessment to examine the conditions on the ground and to determine when we can make recommedations for further reductions. This process will be continuous with recommendations for further reductions made as conditions permit.

This approach does not allow establishment of a set withdrawal timetable. However it does provide the flexibility those of us on the ground need to preserve the still fragile secutiry gains our troopers have fought so hard and sacrificed so hard to achieve. With this approach the security achievements of 2007and early 2008 can form the foundation for the gradual establishment of sustainable security in Iraq.

This is not only important to the 27 million citizens of Iraq it is also vitally important to those in the Gulf region, to the citizens of the U.S. and the international community. It's clearly in our national interest to help Iraq prvent the resurgence of the al Qaeda in the heart of the Arab world, to help Iraq resist encroachment on its sovereignty, to avoid renewed ethno-sectarian violence that could spill over Iraq's borders and make the existing refugee crisis even worse and to enable Iraq to expand it's role in the regional and global economies.

by James Oliphant

Senate Democrats today sent a letter to President Bush, accusing him of taking his "eye off the ball" with respect to global counter-terrorism efforts. Sen. Harry Reid, the majority leader, and others say that the White House has committed too much of the nation's resources to Iraq while neglecting terror-havens Afghanistan and Pakistan.

Here's Reid:

While violence and the drug trade have surged in Afghanistan and Pakistan’s security remains fragile, we are distracted by an endless civil war in Iraq. To make America more secure, we must refocus on hunting down a resurgent Al Qaeda, securing a troubled Afghanistan and rebuilding our overburdened and misused military.

Joe Biden, chair of the Senate Foreign Relations Committee added:

While we look forward this week to hearing from Ambassador Crocker and General David Petraeus on Iraq, Afghanistan and Pakistan must also be an urgent priority. Afghanistan is slipping toward failure and the instability in Pakistan continues. As a result, he border area between the two remains a freeway of fundamentalism, where those who actually attacked us on 9/11 have regrouped. Afghanistan’s fate is directly tied to Pakistan’s future and America’s security.This Administration cannot continue to treat the region as an afterthought.

From the May issue of Vanity Fair.

by James Oliphant

The May issue of Vanity Fair contains an article that contends the Bush administration supported using extreme and perhaps torturous interrogation techniques at its highest levels.

The article, written by British law professor Phillipe Sands, maintains that an aggressive approach to questioning detainees at Guantanamo was encouraged by senior advisers to Vice President Dick Cheney and Defense Secretary Donald Rumsfeld, among others. Some of their inspiration came from the actions of the fictional star of the series "24," Jack Bauer.

It comes just as the Justice Department has released a declassified memo from 2003 that outlined the legal justification for military interrogators to employ harsh interrogation techniques. That memo laid out the administration's view that members of al Qaeda and the Taliban were not protected by the Geneva Conventions.

by James Oliphant

The Justice Department late Tuesday released a declassified 2003 memorandum long sought by congressional Democrats and other administration critics that outlines the government's legal justification for harsh interrogation techniques used by the military against captured enemy combatants outside the United States.

(Here are part one and part two of the memo.)

The memo, written by John Yoo, then a key architect of legal policy in the wake of 9/11, dismisses several legal impediments to the use of extreme techniques.

Yoo was long a proponent of an aggressive approach in the war against terrorism and a believer in executive branch authority. But the memo was withdrawn as formal government policy less than a year after it was written.

In the March 14, 2003 memo, Yoo says the Constitution was not in play with regard to the interrogations because the Fifth Amendment (which provides for due process of law) and the Eighth Amendment (which prevents the government from employing cruel and usual punishment) does "not extend to alien enemy combatants held abroad.":

by James Oliphant

Sen. Russ Feingold Tuesday called out Mike McConnell, the Director of National Intelligence.

Feingold (D-Wis.) sent McConnell a sharply-worded letter concerning McConnell's speech at Furman University on Saturday. McConnell spoke about the legislative battle over the Foreign Intelligence Surveillance Act, and here's what he said that rankled Feingold:

We had a bill go into the Senate. It was debated vigorously. There were some who said we shouldn't have an Intelligence Community. Some have that point of view. Some say the President of the United States violated the process, spied on Americans, should be impeached and should go to jail. I mean, this is democracy, you can say anything you want to say. That was the argument made. The vote was 68 to 29.

And indeed, the Senate FISA bill passed with wide bipartisan support. (The House passed a different bill, and currently leaders of both chambers are trying to figure out how to move forward in a way that can garner some Republican votes and avoid a White House veto.)

But Feingold objected to McConnell's characterization of the floor debate (i.e., some Democrats are Communists.) and wrote him the following:

by Frank James

The New York Times does American journalism proud today with some excellent reporting on a laxly run Pentagon procurement program that resulted in what appears to be a small company of arguably dubious qualifications providing old and faulty ammunition, or ammo from illegal Chinese sources, to Afghanistan security forces.

The story is a powerful example of what journalism at its best can do to shine a spotlight on troubling government actions that taxpayers have a right to know about.

In this case, it appears that even the Pentagon benefited from the NYT investigation. As a result of the newspaper's probe, the Defense Department has suspended the contract with the company, AEY, based in Miami Beach.

The story is at times complex since it involves the murky world of arms depots in the former Soviet bloc and extends into the really opaque world of global illegal arms trafficking.

But some things seem easy to understand. For instance, the Pentagon apparently does very little to investigate the backgrounds of such contractors. Also, in this case and probably others, it seems clear the Pentagon didn't do nearly enough to understand the sources of the ammunition and other products AEY was providing to the Afghans through the Pentagon.

Here's the top of the must-read story by C. J. Chivers, Eric Schmitt and Nicholas Wood:

Since 2006, when the insurgency in Afghanistan sharply intensified, the Afghan government has been dependent on American logistics and military support in the war against Al Qaeda and the Taliban.

But to arm the Afghan forces that it hopes will lead this fight, the American military has relied since early last year on a fledgling company led by a 22-year-old man whose vice president was a licensed masseur. .

Andrew Zajac

As the five year anniversary of the invasion of Iraq approached, the Pentagon earlier this month quietly released a lengthy study of documents captured during and after the U.S. invasion which found no pre-9-11 link between Saddam Hussein and Al Qaeda.

A purported tie between the two was part of the U.S. justification for March 2003 U.S. invasion.

The review did find "strong evidence that links the regime of Saddam Hussein to
regional and global terrorism."

Andrew Zajac

A Justice Deparment Inspector General report out this morning lauds the FBI for developing a generally careful process for collecting names for the terrorism watch list, but nonetheless notes troubling difficulties including failure to remove names when appropriate.

The watch list was set up by the federal government following 9-11 to collect names of people with possible links to terrorism. It contained about 860,000 names as of last October.

by James Oliphant

As promised, the White House is not happy with the FISA bill passed by the House Friday. Here's deputy press secretary Tony Fratto:

Today, the House of Representatives took a significant step backward in defending our country against terrorism and passed a partisan bill that will please class-action trial lawyers at the expense of our national security. Their bill would make it easier for class-action trial lawyers to sue companies whose only “offense” is that they are alleged to have assisted in efforts to protect the country after the attacks of September 11.

These companies already face multibillion-dollar lawsuits, but even the status quo -- which our intelligence professionals have said is undermining our ability to get cooperation from the private sector -- is better than the alternative proposed in the House bill, which would preserve these lawsuits and give trial lawyers more weapons to attack companies for doing their patriotic service. The good news is that the House bill will be dead on arrival in the Senate and, in any event, would be vetoed by the President if it ever got to his desk.

And to provide counterpoint, we give you Patrick Leahy, chairman of the Senate Judiciary Committee.

I commend the House of Representatives for passing its amendment to the Senate’s FISA Amendments Act of 2007. It is a step forward, and a good bill. The Senate-passed legislation has a number of serious failings and does not adequately protect the privacy and civil liberties of Americans. The House bill adds several crucial protections without interfering in any way with this important new surveillance authority.

For the last month, the House has worked with Democratic Senators, and House leaders have repeatedly sought to work with congressional Republicans and the administration to fashion reasonable compromise legislation. Unfortunately, congressional Republicans and the administration have refused to engage in meaningful discussions or negotiations about the legislation.The White House has tried, again, to treat Congress like a rubber stamp.

Sigh. Have we mentioned how we are looking forward to the recess?

by James Oliphant

Minutes ago, the House passed its version of the amendments to the Foreign Intelligence Surveillance act.

The measure passed 213-197.

Because the bill differs substantially from the Senate version, the bills will have to be reconciled in a conference committee before a final version can be voted on and then sent to the president. That's not going to be an easy negotiation. And there may not be a negotiation at all if the Republicans have their way.

Sen. Harry Reid, the majority leader, knows this. Minutes ago, he released a statement saying:

I am very encouraged by House passage of a new FISA bill. The new House version adopts the basic structure of the Senate-passed bill, but contains added privacy protections. Now is the time for Republicans to come to the negotiating table so we can resolve the last few issues. The president should stop giving high-handed speeches in the Rose Garden and start working with Congress to finalize this important national security bill.

by James Oliphant

The House of Representatives, with more than 400 cars parked outside with their engines running, is currently debating proposed amendments to the Foreign Intelligence Surveillance Act, the statute that regulates the government's ability to spy on foreign agents.

These are the amendments drafted by the House leadership, not the Senate bill that passed in February. Right now, you can watch on C-SPAN the Republican minority demanding that a vote be allowed on the Senate bill, which passed with bipartisan support, or you can, you know, do a number of things that might be more enjoyable.

Last night, the House met in a secret session that allowed Republicans to use sensitive intelligence information to make their case in support of the Senate bill. Minority whip Roy Blunt (R-Mo.) called the session "productive."

House leadership won't let the Senate bill reach the floor today, however, for fears that it might pass by a slim majority. The question is whether the Republicans can stop a vote on the House bill.

The House is scheduled to adjourn this afternoon for a two-week recess, so the clock is ticking.

The sticking point is, as you probably know by now, whether telecom companies that cooperated with the National Security Agency's warrantless wiretapping program should be given immunity from civil suits. The FISA bill codifies that now-defunct NSA program.

The Senate bill provides immunity. The House provides a more limited form, and provides for greater judicial review of government wiretaps. The White House has vowed to veto any bill that doesn't grant total immunity.

by James Oliphant, and updated

UPDATE: The House is scheduled to go into closed session tonight at 8 pm to debate FISA. The session will last one hour.

Rep. Roy Blunt, the House's minority whip, wants to get down to the nitty-gritty.

Blunt was pushing the House to meet in a closed session to debate proposed amendments to the Foreign Intelligence Surveillance Act.

He says he wants the House to meet in private to keep political theater to a minimum -- and perhaps to share some classified information. The last time the House did so was back in 1983.

The battle lines over FISA have been drawn. The White House and congressional Republicans are exhorting House Democrats to support a bill passed last month by the Senate that upgrades FISA, gives the administration expanded surveillance powers, and provides telecom companies with civil immunity from lawsuits over aiding the government's wiretapping efforts.

The House this week floated a new proposal, which would offer some limited immunity and give the telecoms the chance to contest some lawsuits in closed courtrooms. It also would force the Justice Department to get approval from the secret court that oversees surveillance of foreign agents before any new wiretaps are put in place. The Senate version gives Justice officials five days after a tap to obtain approval.