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Cal’s John Yoo grilled by Judiciary Committee

University of California, Berkeley Boalt Hall School of Law Professor John Yoo — a former Justice Department attorney and torture-memo author who seems to have painted a bulls-eye on the Fourth Amendment — testified today before the House Judiciary Committee during a hearing on interrogation rules applied by the Bush Administration in the war on terrorism.

And it wasn’t pretty.

From Chairman John Conyers, D-Mich.:

From Rep. Jerrold Nadler, D-N.Y., who has been chairing the interrogation-technique hearings:

From Rep. Keith Ellison, D-Minn., and Nadler:

I’d guess there’ll be lots of talk about this at the “No To Torture! John Yoo Must Go!” town-hall meeting tomorrow (Friday, June 27) night in Berkeley.

Posted on Thursday, June 26th, 2008
Under: Berkeley, Civil liberties, War on Terror | No Comments »

Activists step up efforts to oust John Yoo

Activists are stepping up their grassroots effort to get John Yoo — the former Justice Department attorney not only wrote memos advocating the possible legality of torture and denying enemy combatants protection under the Geneva Conventions, but also rode the Fourth Amendment hard and put it away wet — fired from his job as a UC-Berkeley Boalt Hall School of Law professor.

Yoo will testify tomorrow, Thursday, June 26, before the House Judiciary Committee as part of its ongoing investigation of the Bush Administration’s interrogation rules.

A day after that, the National Lawyers Guild and The World Can’t Wait! Drive Out the Bush Regime! will convene a new coalition with a town-hall meeting at 7 p.m. Friday, June 27, entitled “No To Torture! John Yoo Must Go!” (They! Sure! Do! Like! Their! Exclamation! Points! Don’t! They!?!) It’ll be in the Berkeley Unitarian Universalist Fellowship Hall, 1924 Cedar St. in Berkeley, with admission costing $5 to $20 on a sliding scale; nobody will be turned away for lack of funds. The event will feature Stephen Rohde, past president of the American Civil Liberties Union of Southern California, and audience members will be invited to comment and debate.

Don’t expect anyone at this event to take Yoo’s side, however. The coalition says it has been founded “to demand that John Yoo be fired, disbarred, and prosecuted for war crimes;” it aims to rally the campus community, the legal community and the East Bay at large to demand Yoo’s ousting. It’s planning a “war crimes tribunal” for this fall and a public advertising campaign, among other things.

Posted on Wednesday, June 25th, 2008
Under: Berkeley, Civil liberties, War on Terror | No Comments »

Pentagon torture lawyer now at Chevron

Richmond City Councilman Tom Butt, no fan of Chevron — whose refinery looms over the city of Richmond — on any given day, notes today in an e-mail to constituents that Chevron chief corporate counsel William J. Haynes II is a former Pentagon official who just took a beating from Congress this week for his role in approving the use of harsh interrogtation methods that some call torture.

A blogger at Think Progress described the scene that unfolded at the Senate Armed Services Committee hearing Tuesday as Haynes explained his role as general counsel to the Department of Defense in how detainees have been treated in Iraq, Afghanistan, and Guantanamo Bay. “As the lawyer, I was not the decision maker. I was the adviser,” he said. U.S. Sen. Jack Reed, D-RI, told Haynes that doesn’t cut it:

“You did a disservice to the soldiers of this nation. You empowered them to violate basic conditions which every soldier respects — the Uniformed Code of Military Justice, the Geneva Convention. … Don’t go around with this attitude of you’re protecting the integrity of the military. You degraded the integrity of the United States military.”

San Ramon-based Chevron doesn’t have a problem with Haynes’ history, per law.com: “Chevron spokesman Robertson says that while the company is ‘aware that there are peripheral issues surrounding Jim, they have not been a focus for us.’ “

Posted on Friday, June 20th, 2008
Under: Afghanistan, Civil liberties, Iraq, U.S. Senate, War on Terror | 1 Comment »

Digital library beats FBI’s secret data demand

The FBI has withdrawn a National Security Letter issued to the Internet Archive after a legal challenge from the Electronic Frontier Foundation and the American Civil Liberties Union, those groups said on a conference call moments ago.

Under a settlement agreement, the FBI has lifted the NSL’s gag and agreed to the case’s unsealing, making all the filings public and letting Archive founder Brewster Kahle speak out for the first time about his battle against the records demand.

kahle.jpg“The FBI served the Internet Archive with a letter last November demanding information about a patron of the Internet Archive,” Kahle said. “I couldn’t discuss it with anybody, I couldn’t bring it to the board, I couldn’t discuss it with the rest of the staff. Even our lawyers couldn’t share information with their peers about what was going on.”

“Gagging librarians is horrendous,” Kahle said. “We don’t think this is necessary and were very happy to be able to speak up now to all librarians and the public.”

The Internet Archive — a nonprofit founded in 1996 and based in San Francisco’s Presidio — is building an Internet library of online books, music, videos and “snapshots” of Web pages, offering permanent access for researchers, historians, and scholars to historical collections that exist in digital format.

The government uses these secret NSLs to access personal customer records from Internet service providers, financial institutions, and credit reporting agencies among other companies. In most cases, recipients are forbidden from disclosing even that they received the letters. The Internet Archive fought this NSL because it believed the letter exceeded the FBI’s limited authority to issue NSLs to libraries; this was the first case to assert protections for libraries that Congress set in 2006′s reauthorization of the USA PATRIOT Act.

EFF senior staff attorney Kurt Opsahl said the FBI’s letter demanded an Archive user’s name, address, length of service, electronic communication transaction history and other data. But the Archive doesn’t collect IP addresses of users who upload and download files, he said, only their unverified e-mail addresses; he said he wouldn’t disclose what information the Archive did give the FBI on this person, other than to say it was publicly available information. Meanwhile, the EFF – joined by the ACLU – sued to challenge the gag order’s constitutionality, and after four months of legal negotiations, the FBI backed down.

ACLU National Security Project attorney Melissa Goodman said about 200,000 NSLs were issued from 2003 to 2006, yet only three including this one have been challenged in court. In each of these three cases, the FBI agreed to withdraw its request; Goodman said this calls into question how important the information was in the first place, and how wide a net the FBI is casting without judicial review, shielded from public eyes.

“The gag orders that are part and parcel of almost every NSL that gets issued are unhealthy in a democracy,” said ACLU of Northern California staff attorney Ann Brick, who noted the Justice Department Inspector General’s audits have found the FBI regularly abuses its NSL power.

Brick also said this secrecy “distorts the public debate over national security letters, including the debate in Congress” – when an ACLU attorney testified before Congress last month about NSLs, he couldn’t even talk about the Internet Archive’s case.

Brick said she hopes this case will inspire more libraries and other organizations to file lawsuits challenging NSL’s constitutionality.

Posted on Wednesday, May 7th, 2008
Under: Civil liberties, General, War on Terror | No Comments »

Fourth Amendment pliable for Yoo… and you too

yoo.jpgApparently a Berkeley law professor has a pretty radical interpretation of our constitutional right to be protected from unreasonable search and seizure: It doesn’t apply to domestic military operations.

From today’s Washington Post:

The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president’s ultimate authority as commander in chief overrode such statutes.

The 81-page memo, which was declassified and released publicly yesterday, argues that poking, slapping or shoving detainees would not give rise to criminal liability. The document also appears to defend the use of mind-altering drugs that do not produce “an extreme effect” calculated to “cause a profound disruption of the senses or personality.”

Although the existence of the memo has long been known, its contents had not been previously disclosed.

Nine months after it was issued, Justice Department officials told the Defense Department to stop relying on it. But its reasoning provided the legal foundation for the Defense Department’s use of aggressive interrogation practices at a crucial time, as captives poured into military jails from Afghanistan and U.S. forces prepared to invade Iraq.

Sent to the Pentagon’s general counsel on March 14, 2003, by John C. Yoo, then a deputy in the Justice Department’s Office of Legal Counsel, the memo provides an expansive argument for nearly unfettered presidential power in a time of war. It contends that numerous laws and treaties forbidding torture or cruel treatment should not apply to U.S. interrogations in foreign lands because of the president’s inherent wartime powers.

“If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network,” Yoo wrote. “In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.”

John Yoo, of course, is now a professor at the University of California, Berkeley’s Boalt Hall School of Law. He already has taken a lot of heat for previously released memos in which he advocated the possible legality of torture, and for denying enemy combatants protection under the Geneva Conventions.

Read the newly released memo here, and please take a look at footnote 10 on page 8:

Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court’s treatment of the destruction of property for the purposes of military necessity, our Office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 25 (Oct. 23, 2001).

Read that sentence I emphasized once more: “(T)he Fourth Amendment had no application to domestic military operations.”

Here’s the Fourth Amendment, lest we forget: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, support by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

But according to this footnote, Yoo — a little more than one month after the Sept. 11, 2001 attacks — issued a memo finding that doesn’t apply to everyone within our borders, a sentiment never made public until now.

The American Civil Liberties Union today issued a news release saying this still-secret 2001 Yoo memo “was almost certainly meant to provide a legal basis for the National Security Agency’s warrantless wiretapping program, which President Bush launched the same month the memo was issued. As a component of the Department of Defense, the NSA is a military agency.”

The ACLU has challenged the withholding of the October 2001 memo and the issue is pending before the U.S. District Court for the District of Columbia.

Posted on Wednesday, April 2nd, 2008
Under: Berkeley, Civil liberties, General, War on Terror | No Comments »

Congress votes to ban waterboarding, etc.

This just in from the office of U.S. Sen. Dianne Feinstein, D-Calif.:

Congress today approved legislation by U.S. Senators Dianne Feinstein (D-Calif.), Chuck Hagel (R-NE), and Sheldon Whitehouse (D-RI) that would require the CIA to follow the Army Field Manual’s rules on interrogations.

The legislation, which now goes to the President, will establish uniform standards on interrogation of detainees for all parts of the U.S. government. It prohibits waterboarding and other forms of coercive interrogation techniques.

“Today, the Senate stood tall and declared in a strong voice that the United States will not engage in torture,” Senator Feinstein said. “This is an historic moment, and I strongly urge the President to sign it into law. This legislation will require the CIA to follow the Army Field Manual’s protocols on interrogations. It will help restore America’s credibility abroad by establishing a single, uniform standard for the interrogation of detainees in our custody. No longer will the United States allow actions by its intelligence services which clash so sharply with the very ideals upon which this nation was founded. This legislation ensures that the United States will follow the law – the Geneva Conventions, the Conventions Against Torture, and the Detainee Treatment Act. Only by living up to our principles can we regain credibility in the eyes of the world. The President should sign this bill into law.”

[snip]

The measure was included as an amendment to the Intelligence Authorization bill, which was approved today by the Senate.

The provision reads:

“No individual in the custody or under the effective control of an element of the intelligence community or instrumentality thereof, regardless of nationality or physical location, shall be subject to any treatment or technique of interrogation not authorized by the United States Army Field Manual on Human Intelligence Collector Operations.”

It specifically requires the CIA and all other U.S. intelligence agencies to follow the Army Field Manual’s protocols on interrogations.

The Army Field Manual specifically prohibits eight interrogation techniques:
· Forcing a detainee to be naked, perform sexual acts, pose in sexual manner;
· Placing hoods or sacks over the head of a detainee, duct tape over the eyes;
· Beatings, electric shock, burns or other forms of physical pain;
· Waterboarding;
· Use of military working dogs;
· Introducing hypothermia or heat injury;
· Conducting mock executions; and
· Depriving detainee of necessary food, water, or medical care.

The Army Field Manual allows 19 interrogation approaches, mainly based on psychological techniques, such as making a detainee believe that cooperation will shorten the length of a war and therefore save his country.

Just yesterday at the Berkeley protests regarding U.S. Marine Corps recruiting in Berkeley, I heard Rabbi Michael Lerner — founder of the Tikkun community and cofounder of the Network of Spiritual Progressives — list Feinstein among lawmakers who enable the war by failing to stand up to the Bush Administration, in her case by voting to confirm Michael Mukasey as Attorney General despite his refusal to explicitly characterize waterboarding as torture. (Go see here how some protestors heckled Feinstein for this back in November.)

But it seems Feinstein found a way to act on the issue, after all.

Posted on Wednesday, February 13th, 2008
Under: Dianne Feinstein, Iraq, President Bush, War on Terror | No Comments »

Circuit judge accused of pro-torture bias

I was at Cal’s School of Law this morning to cover arguments to a 9th U.S. Circuit Court of Appeals panel in the federal civil rights lawsuit brought against San Francisco and its police department in the “fajitagate” case. Sitting on this three-judge panel was Circuit Judge Jay S. Bybee, an Oakland native who maintains his chambers in Las Vegas.

bybee.jpgAs John Roemer reported in Monday’s edition of the Daily Journal legal newspaper, attorney Dennis Cunningham, representing plaintiff Jade Santoro, filed a motion last Thursday asking Bybee to recuse himself on the basis of an August 1, 2002 memo he signed while serving as the assistant attorney general in charge of the U.S. Justice Department’s Office of Legal Counsel.

That memo narrowed the definition of torture, concluding “physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” It also concluded that for purely mental pain to constitute torture it “must result in significant psychological harm of significant duration, e.g., lasting for months or even years.”

President Bush announced Bybee’s nomination to the 9th Circuit bench in May 2002 and sent it to the Senate in January 2003; the Senate confirmed him that March. The Washington Post broke the story on the leaked “Bybee memo” — reportedly written in large part by Deputy Assistant Attorney General John Yoo, now a Cal law professor — more than a year later, in June 2004.

Cunningham’s motion argued Bybee shouldn’t hear Wednesday’s case involving police officers with a history of excessive-force accusations because “unnecessary, and gratuitous, and so often sadistic, uses of force” are among “domestic forms of torture.”

Bybee issued an order last Friday refusing to recuse himself; Cunningham filed another motion Monday asking the court to disqualify Bybee, but Senior Circuit Judge John Noonan and Circuit Judge Sidney Thomas — the other two judges on today’s panel — denied that motion Tuesday.

After hearing the case Wednesday, the panel took questions from the student audience; one young man asked whether it’s possible to predict a judge’s actions by noting the president by whom he or she was appointed. The three judges’ consensus was that it’s not, and Bybee volunteered essentially that having a lifetime appointment means never having to say you’re sorry if your rulings don’t hew to the philosophy of the president who appointed you.

Posted on Wednesday, February 13th, 2008
Under: Berkeley, President Bush, War on Terror | 1 Comment »

‘$9.11 for Rudy’

The motif of a fundraiser for Republican presidential candidate Rudy Giuliani hosted by a senior fellow at the Hoover Institution at Stanford University is raising eyebrows, the Associated Press reports.

According to the invitation, “$9.11 for Rudy” is an “independent, non-denominational grass-roots campaign to raise $10,000 in small increments to show how many individual, everyday Americans support ‘America’s Mayor.’”

Can anybody say, “politicization of America’s darkest hour?”

sofaer.jpgDemocratic presidential candidate Christopher Dodd‘s campaign quickly branded the gimmick “absolutely unconscionable, shameless and sickening” and suggested Giuliani “should reject and/or return any money raised” through the party, to be held this Wednesday night at the Palo Alto home of Abraham Sofaer, a legal adviser to the U.S. Department of State from 1985 to 1990.

A Giuliani spokeswoman said the idea was selected without the campaign’s knowledge and was “an unfortunate choice.”

Sofaer told the AP he had nothing to do with the decision to ask for the $9.11. “There are some young people who came up with it,” he said Monday evening, referring other questions to Giuliani’s campaign and saying, “I’m just providing support for him. He’s an old friend of mine.”

Posted on Tuesday, September 25th, 2007
Under: Elections, Rudy Giuliani, War on Terror | No Comments »

House hearing on habeas corpus tomorrow

The full House Armed Services Committee is scheduled to hear testimony at 9 a.m. EDT Thursday on “Upholding the Principle of Habeas Corpus for Detainees.” Committee member Ellen Tauscher, D-Alamo, is preparing to ask pointed questions, her staff says.

Two bills to restore habeas corpus rights to non-citizen enemy combatants are pending: House Armed Services Committee chairman Ike Skelton, D-Mo., introduced one last month (with Tauscher among the 29 original co-sponsors) and a similar Senate bill was introduced in January by Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., and ranking member Arlen Specter, R-Pa.

An explanation of habeas corpus and a list of tomorrow’s witnesses, after the jump… Read the rest of this entry »

Posted on Wednesday, July 25th, 2007
Under: Ellen Tauscher, General, U.S. House, War on Terror | No Comments »

House habeas restoration bill to drop tomorrow

House sources say Armed Services Committee Chairman Ike Skelton, D-Mo., and Judiciary Committee Chairman John Conyers Jr., D-Mich., tomorrow will introduce a bill restoring the right of habeas corpus to foreign-born unlawful enemy combatants held by the federal government in the war on terror. Armed Services Committee member Ellen Tauscher, D-Alamo, has been saying for weeks that she’ll be an original co-sponsor of this bill.

Habeas corpus, for the Latin-challenged, essentially is the right to be brought to the court for a determination of whether one is imprisoned lawfully and whether one should be released. It dates back to the 12th Century, preceding its 1215 codification in the Magna Carta‘s section 39; our Constitution‘s Article I, Section 9, says it “shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.” Yet under last year’s Military Commissions Act of 2006, non-citizens whom the government deems “unlawful enemy combatants” no longer have this right.

There had been rumors last month that the Armed Services Committee would attach a rider restoring habeas corpus to the National Defense Authorization Act for 2008, H.R. 1585, which approves Pentagon spending for the next year. But no such rider materialized; Skelton’s staff said he felt so strongly about the issue that it deserved a bill of its very own.

A similar Senate bill was introduced in January by Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., and ranking member Arlen Specter, R-Pa.; their committee reported it out favorably June 7. California’s Senators, Barbara Boxer and Dianne Feinstein, are among that bill’s 22 co-sponsors.

Posted on Wednesday, June 20th, 2007
Under: Barbara Boxer, Civil liberties, Dianne Feinstein, Ellen Tauscher, U.S. House, U.S. Senate, War on Terror | No Comments »