"Mistakes were made": The FBI's Unlawful Privacy Abuses

Recent revelations about significant deficiencies in the FBI's bungling of security investigations of U.S. citizens under the Patriot Act suggests that a great deal more is involved than just isolated instances of negligence resulting in occasional invasions of privacy.

On Tuesday, FBI Director Robert Mueller admitted to the FBI's failure to abide by legal requirements laid out under the Patriot Act regarding the use of national security letters (NSLs) and intelligence surveillance warrants.

Earlier this month, the Department of Justice released two reports - one on the FBI's use of NSLs, and the other on the FBI's obtainment of business records - severely criticizing the FBI's abuse of the law. The NSL report blasted the FBI for failing to report to Congress on its use of NSLs, as it is required to do under the 2005 Patriot Reauthorization Act. Of the 143,000 NSL requests issued between 2003-2005, thousands of NSLs were never reported to Congress.

Interestingly, when Congress imposed this reporting requirement upon the FBI in 2005, the Bush administration staunchly opposed the requirement, citing instead the need to withhold information from Congress that might "impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive's constitutional duties." It appears that Congress' efforts to impose oversight over the FBI were in vain. The executive branch never intended to respect the law, but per its usual course of action, has chosen to dilute the law, in letter and in spirit.

In addition to its failure to fulfill its reporting requirements, the FBI also, according to the report:

• Requested information exceeding the scope of the agency's authority under the Patriot Act.
• Issued NSLs that were not tied to any ongoing investigation (under the Patriot Act, the NSLs must be "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities").
• Issued "exigent letters" to telephone companies, rather than NSLs, that were signed by people not authorized to sign NSLs. In other words, the FBI went around the law. When it could not legally issue NSLs, it issued "exigent letters" instead, thereby failing to follow the processes required for obtaining private information about individuals. This resulted in telephone companies handing over information about individuals to the FBI before the proper NSLs and subpoenaes had been approved.

In testimony before the House last week, Inspector General Glenn A. Fine attributed the administration's abuse of the law to "mistakes, carelessness, confusion, sloppiness, lack of training, lack of adequate guidance and lack of adequate oversight."

But something more than just simple "mistakes" and reporting deficiencies seems to be at work here. What the scope and extent of the abuses suggest is that when legal requirements inconveniently stand in the way of the government's war on terrorism, the current administration chooses not to take the law seriously.

When Bush swore to defend and uphold the Constitution, he could only have meant that he would not let that revered document stand in his way of expanding his powers. Other examples of the administration's irreverence of the law include:

• The CIA's illegal rendition to torture program;
• Infringement upon, and censorship of, free speech of anti-Bush protesters;
• Unlawful arrests, indefinite detentions, and disregard of the right to habeas corpus of Guantanamo detainees;
• Illegal spying on Americans by the National Security Agency; and
• Presidential signing statements that are issued, not to aid in interpretation of Congressional legislation, but rather, to override it.

Unfortunately, such blatant disregard for the law permeates the executive branch, seemingly, at all levels. Although FBI Director Mueller and Attorney General Alberto Gonzales (who oversees the FBI) have both expressed disappointment at the agency's failures to abide by the law, they have also indicated that they intend to continue using NSLs, despite their fundamental flaws. Mueller admitted that "mistakes were made," but in the same breath called the NSLs the "bread and butter" of the FBI's investigations, labelling them "absolutely essential" in helping the government to obtain information. What makes the NSLs so valuable to the administration is the fact that they can be, and have been, obtained illegally and without adequate privacy protections. Take away the FBI's ability to obtain information in an unlawful manner, and the FBI's surveillance program will be significantly curtailed, much to the chagrin of some members of this administration.

Given the cavalier "anything goes" mentality held by those responsible for combatting terrorism, tinkering with the language of the law to try to prevent further abuses will not be enough. The Bush Administration's response to all of this is not to address the problems inherent in the secret surveillance program, but rather, to continue engaging in injudicious surveillance and finding new ways to sidestep legal requirements. Indeed, the administration's approach has always been to undermine the rule of law to the point of ineffectuality.

How many more times will we be told that we must concede our fundamental liberties in the name of an undefined "war against terrorism", that the law has once again been ignored, that "mistakes were made"?

David Hicks' Guilty Plea Before the Military Commission Tribunal

After declining to enter a plea at an earlier session of his preliminary military commission hearing, Guantanamo Bay detainee David Hicks plead guilty before the nation's first Military Commission on Monday. Hicks' guilty plea should not prevent us from taking a long, hard look at the appropriateness and legality of using the military rather than civilian courts for these prosecutions.

Two critical questions that must be addressed are, first, whether these special military trials meet basic fairness and due process standards, and second, whether the approach taken by military tribunals is desirable even if they can be considered adequate for purposes of due process. The fact that Hicks has admitted his guilt should not be taken as a green light for these military trials to continue.

It must be understood that the special military commissions set up by the Bush Administration to prosecute suspected terrorists are worlds apart from the military trials that normally take place under the Uniform Code of Military Justice (UCMJ). Many of the traditional due process protections provided in typical UCMJ trials are not present in the special military commissions that were created to deal with alleged terrorists. Additionally, the rules of the UCMJ are not binding on, or applicable to, military commissions trials.

Under the Military Commissions Act of 2006:

• Detainees do not have the right to be represented by counsel of their choosing.
• Evidence obtained through torture, coercive interrogations, or improper long-term detention is admissible in certain circumstances, as is hearsay evidence.
• No regular judicial appeal is permitted. The only avenue for judicial review is through the "convening authority", which woud be the Secretary of Defense or his designee, who cannot be characterized as impartial.
• Detainees are denied the same fundamental due process protections that are provided for defendants in typical military criminal cases and in criminal trials in U.S. courts and international tribunals. For example, detainees do not have the right to prompt notification of the charges issued against them, nor do they have a right to speedy trial before an impartial court, and may be subject to secret trials closed to the public.
• The applicability of international law in U.S. courts, particularly the Geneva Conventions, is severely constricted.

These deficiencies are nothing new to the Guantanamo detainee trials. On June 29, 2006, the U.S. Supreme Court in Hamdan found these deficiences to be so blatant and unacceptable that it rejected the first set of military commission procedures (established under Military Commission Order No. 1), finding them to be in violation of U.S. military law and in conflict with the requirements of the Geneva Conventions. It was in response to the Court's decision in Hamdan that Congress made changes to the rules for the military commissions, enacting the Military Commissions Act of 2006.

Unfortunately, the new standards do not come close to remedying all of the problems that the Supreme Court identified in Hamdan. For example, the judge in Hicks' hearing threw Hicks' two civilian counsel out of the courtroom, finding that they were "not authorized to participate in the military commission proceedings." Under the MCA, detainees may be represented by civilian and military attorneys, so long as defense counsel meet certain specifications. Civilian attorneys qualify to represent detainees based on regulations prescribed by the Secretary of Defense. However, the Defense Secretary has not yet issued those regulations. One of Hicks' attorneys, Joshua Dratel, refused to sign a form agreeing to be bound by unwritten regulations, thereby signing off on his ethical obligations carte blanche and being subject to a system that makes up the rules as it goes.

Rebecca Snyder, another of Hicks' civilian attorneys, is a military reserve lawyer, but was disqualified from representing Hicks because she had not been called into active duty. She would have to change her reserve status before being permitted to appear before the commission. Such a bold move by the judge effectively constitutes a rejection of Hicks' entire defense team, leaving Hicks with only his military attorney to defend him.

But even if a greater degree of due process was to be provided in the military commissions procedures, the military trial approach cannot be justified. For years, the United States has strenuously objected to the use of military trials as a matter of principle, because of concerns that this process has been misused in so many cases with the aim of producing expedited results and bypassing normal rule of law standards.

Another significant problem is that it is not at all clear that alleged terrorists fall outside of the jurisdiction of the regular criminal courts as "unlawful enemy combatants" in wartime. Technically, under traditional standards of international law, unless the detainees were captured on a battlefield, such as in Iraq or Afghanistan, there is no basis for treating them as "war criminals" subject to military trial as unlawful enemy combatants. They may have committed international crimes - a fact that has yet to be established. But their actions should not be considered war crimes, since the "war on terrorism" is neither an armed conflict between governments, nor an external conflict involving competing national factions, under the terms of the Geneva Conventions.

Whatever the technical legalities or the merits (or demerits) of the military trials may be, the United States should not now be supporting the use of military trials when, with good reason, we have objected to this approach for so long, when other governments bypassed the regular legal profess for the sake of expediency.

Sheikh Muhammad’s Confessions

The “confessions” of Sheikh Muhammad presented before the Combatant Status Review Tribunal at Guantanamo Bay provide valuable insights into possible terrorist threats and thinking, and deserve to be taken seriously on that basis. But there are aspects of the confessions that are very troubling for other reasons that counsel taking them with caution as well.

Statements that result from torture (admitted waterboarding in this case) are never reliable, and should never be accepted as a basis for judgment in any type of judicial proceeding, even the special CSRT procedure established at GITMO to assess the status of suspected terrorists. These due process problems are compounded by the fact that Sheikh Muhammad, along with an undetermined number of other suspected terrorists, was held for many months in a “secret prison” without charges being filed against him, and subject to extreme forms of isolation and interrogation. Torture and arbitrary, indefinite detention would make any statement or confession unusable in a regular US court proceeding. The fact that these practices are being permitted in the context of the CSRT determinations places a major cloud on how the detainees and other suspected terrorists more generally. In the name of fighting the “war against terrorism,” and in order to deal with suspected terrorists expediently, we are allowing ourselves to commit torture and to eliminate some of the most important judicial protections that we associate with the “rule of law.”

The elimination of habeas corpus remedies in the REAL ID Act (for refugees) and in the Military Commissions Act (for terrorist detainees) is another victim of this process, and another indicator of how far our government seems willing to go to restrict basic rights and protections to stop terrorists.

It is important for us to look at these problems with how we are dealing with the terrorist threats, not just at the subjects of the “confessions” themselves. The Department of State has just put out its annual Country Reports on Human Rights assessing compliance by foreign governments, and placing great stress on how these governments observe the basic principles of democracy and the rule of law. How would our own government fare if subjected to the same analysis? The process surrounding how Sheikh Muhammad’s confessions were obtained, including the use of torture and long-term secret imprisonment, and the CSRT process that substitutes ex parte judgments by the military for basic due process rights, suggests this judgment would not be a very positive one.

MS

Human Rights USA "At the Forefront of the Law" in Abu Ali Rendition to Torture Challenge (3/3/05)

One of the hallmarks of the work that Human Rights USA does is taking on cases that other groups have dismissed as "unwinnable" or not worth the effort. Our representation of Ahmed Abu Ali, a client who sought to challenge the U.S. government's rendition to torture program, was one such case.

Abu's sister called our organization after every other group had turned her down, telling her that she didn't stand a chance in challenging the U.S. government's involvement in the rendition of a U.S. citizen to a foreign country, where he was being held by foreign officials.

"Within a few minutes, my gut was telling me this was a rendition to torture case," Sheikholeslami said, referring to a U.S. practice of transferring terrorism suspects to foreign countries known for torturing prisoners in interrogations. "It was extremely important -- it involved a U.S. citizen held without charges -- and it was an extremely important opportunity for our organization, as well."

"People were telling us it was a waste of time," Sklar said of the assessments about the Abu Ali suit, which his group filed for the family in July 2004 against then-Attorney General John D. Ashcroft, the Justice Department and the FBI. The one thing that makes the human rights organization different, he said, "is that we are looking for creative solutions to important problems. Little groups like ours are flexible and can do that."

Human Rights USA, with the help of its interns, put together a 27-page legal brief arguing that the U.S. courts have jurisdiction to review a person's detention in a foreign country, when the United States played a role in that detention. The D.C. District Court agreed, marking the first time that courts have ever directly addressed this issue. The court's decision opened up the possibility for federal courts to look into the U.S. government's involvement in the "extraordinary rendition" program, where individuals are secreted to foreign countries and are indefinitely detained, held incommunicado, and are often subjected to abuse and torture.

The government has made every attempt to prevent the courts from reviewing its actions in the war on terror, but the court's decision in Abu Ali represents one instance where the courts haven't been afraid to pull the brakes on a program that violated U.S. and international law. Human Rights USA continues to challenge the U.S. government's rendition to torture program. Please go here more about our work on Human Rights & Anti-Terrorism.

To read the full article on Human Rights USA's groundbreaking work, please see the following article:

• Washington Post, From Cramped Office, Students Accomplish Major Change In Law; Rights Group Plays Key Role In Terrorism Case, March 3, 2005

Court Says Female Genital Mutilation Consititutes Torture, Halts Our Client's Deportation

In a groundbreaking decision, the Seventh Circuit Court of Appeals became the first court at the Circuit Court of Appeals level on Friday to stay the deportation of a mother whose daughters, both U.S. citizens, would be subjected to female genital mutilation (FGM), a form of torture, if deported to Nigeria. Human Rights USA worked creatively to ensure that Philomena Nwakolo and her daughters, Rachel and Victoria, are now safe from abuse and torture in Nigeria.

Philomena came to the United States in the 1980s on a visa that is typically granted to the spouses and children of students. Philomena took a paid job shortly after arriving, not realizing that she wasn't permitted to perform paid work, and the INS began deportation proceedings against her.

After trying several times, unsuccessfully, to obtain permission to remain in the United States, Philomena finally decided to seek protection under a federal law which implements the Convention Against Torture (CAT), an international statute obliging countries not to deport individuals to places where they face the likelihood of being tortured.

Finally, in 1999, after several years of trying to reopen her case, Philomena again sought to reopen her case based on "changed circumstances." The changed circumstances were the birth of Philomena's daughter, then 3 years old, as well as additional legal protections that had been enacted pursuant to the CAT.

Although Philomena's petition to reopen was denied, she went to the Seventh Circuit Court of Appeals to petition for review of the lower court's refusal to reopen her case. The Seventh Circuit granted her request, and held that a stay of removal "promotes the public's compelling interest in ensuring that minor United States citizens are not forced into exile to be tortured."

The Seventh Circuit Court's decision is the first to hold that female genital mutilation constitutes torture, and is unique in that the court considered the effects of deportation on the children of an alien, as well as on the alien herself.

For additional news articles on this case, please see the following:

• Chicago Daily Law Bulletin, 7th Circuit Puts Brakes On Deportation , December 30, 2002
• Washington Post, Court Blocks Dallas Woman’s Deportation , Citing Threat Of Mutilation, January 3, 2003

Court Agrees to Review U.S. Government's Role in Rendition of Abu Ali to Saudi Arabia

In a sweeping decision yesterday, the District Court for the District of Columbia held, in our case Abu Ali v. Ashcroft, that U.S. federal courts have jurisdiction to inquire into the level of involvement that the U.S. government had in the arrest, detention, and interrogation of a U.S. citizen currently being detained in a Saudi prison.

The U.S. government had tried to argue to the court that federal courts lack jurisdiction to compel the government to reveal information about the detention of an individual being held by a foreign government, "even where the United States allegedly has been involved in the prisoner's incarceration in the first place."

The court squarely rejected this argument, stating that ''[t]he full contours of this position would permit the United States, at its discretion and without judicial review, to arrest a citizen of the United States and transfer her to the custody of allies overseas in order to avoid constitutional scrutiny." If the court were to accept that position, that would allow the government ''to deliver American citizens to foreign governments to obtain information through the use of torture," a practice which has been gaining increasing attention as details about the government's "extraordinary rendition" program come to light.

Relying in part on the Supreme Court's recent decision in Rasul v. Bush, in which that Court held that the government could not indefinitely detain "enemy combatants" at Guantanamo Bay without affording them the right to challenge their detentions before a neutral tribunal, the D.C. District Court said that the U.S. government is obliged to respond to our specific allegations of complicity in arranging Abu Ali's detention and mistreatment, giving Ali the opportunity to challenge his detention.

The significance of the court's ruling is that courts have now been held to be able to decide whether the detention of U.S. citizens by foreign countries are justified, so long as there is some evidence that the U.S. government was involved in the detention of U.S. citizens. The decision, furthermore, presents a very strong rebuke of the U.S. government's attempts to prevent courts from reviewing its actions in the war on terror, something it has been trying to do from the beginning.

For additional news on our Abu Ali case, please see the following news sources:

• Associated Press, Saudi Detainee’s Family Urges U.S. Action, December 17, 2004
• Washington Post, Judge To Review U.S. Role In Saudi Jailing of Va. Man, December 17, 2004
• New York Times, U.S. Court Asserts Authority Over American in Saudi Jail , December 17, 2004
  
• Washington Post, Saudi Subcontractors, December 20, 2004