Hepting v. AT&T; FISA revision; Military Commissions and torture
My interview with Maine Civil Liberties Union Executive Director Shenna Bellows (recorded Thursday August 30) is available below for direct listening or download. This is a 128 kbit/44 kHz file (53 MB, mp3). The entire program runs about 1 hour.
This program broadcasts on WERU Community Radio, Blue Hill, Maine on the Weekend Voices program for Saturday September 1, 3pm.
Below the fold are additional notes and links for clips and news stories heard or referenced during the interview.
Notes for August 30, 2007 Shenna Bellows interview
Program begins with some excerpts of remarks Shenna gave at the WERU Community Radio Full Circle Summer Fair on July 29, 2007.
Shenna Bellows is Executive Director of the Maine Civil Liberties Union. Shenna is a tireless campaigner for the constitutional rights of all people and has done so from her current position since March 2005. Prior to that, she worked for two years as a National Field Organizer at the American Civil Liberties Union Field Office in Washington, DC. She has been a leader in post-9/11 issues, developing a field program around the Patriot Act, as well as working to defeat several constitutional amendments that would have undermined the criminal justice system, freedom of speech, and LGBT rights.
Shenna is able to give us much more information about recent events in the Verizon phone records case, now consolidated in the Ninth Circuit Court of Appeals under Hepting versus AT&T, as well as the Foreign Intelligence Surveillance Act revisions passed by Congress after her July appearance at the Full Circle Fair. We conclude with a discussion about treatment of Terror War detainees in US custody and the Military Commissions set up by the government to try some of them.
I began by asking her to explain fully the Maine-Verizon phone records case and describe what is happening with it now…
Hepting v. AT&T U.S. Ninth Circuit Court of Appeals; Aug. 15, 2007
“For the purposes of judicial efficiency, all similar cases from around the country were transferred from their original states and assigned to Judge Vaughn Walker in the Northern District of California (district where the Hepting case was originally filed).”
US District Court Judge Vaughn Walker had declined on July to address the federal government’s main argument that the cases should be tossed out because homeland security secrets could be exposed. Instead, Walker said he would wait until the Ninth US Circuit Court of Appeals rules on the issue. That hearing occurred on Aug. 15.
US Deputy Solicitor General Gregory Garre (GAR) summarized the government’s arguments against this case going forward, using a “state secrets” claim:
The issue at hand seems to be wide-net “dragnet” style fishing expeditions through most if not all people’s communication and records. As part of the case, there is much back & forth discussion about a secret “spy room” where AT&T may be allowing bulk communications data streams into government systems. This kind of activity suggests that more than just “terrorist” surveillance is underway.
Are we just inviting terrorists to hurt us if we even get a clue about what the government is doing with our communications?
Should we be worried that what really is happening here is that framework for a Soviet-style authoritarian state where the government secretly gets to name any of us as enemy, and then use what should be under our Bill of Rights protected political thought & activity against us?
(Clip 2) President Bush radio address 28 Jul 2007:
Motivation for FISA reform, terrorism:
The terrorist network that struck America on September the 11th wants to strike our country again. To stop them, our military, law enforcement, and intelligence professionals need the best possible information about who the terrorists are, where they are, and what they are planning.
One of the most important ways we can gather that information is by monitoring terrorist communications. The Foreign Intelligence Surveillance Act — also known as FISA — provides a critical legal foundation that allows our intelligence community to collect this information while protecting the civil liberties of Americans. But this important law was written in 1978, and it addressed the technologies of that era. This law is badly out of date — and Congress must act to modernize it.
Today we face sophisticated terrorists who use disposable cell phones and the Internet to communicate with each other, recruit operatives, and plan attacks on our country. Technologies like these were not available when FISA was passed nearly 30 years ago, and FISA has not kept up with new technological developments. As a result, our Nation is hampered in its ability to gain the vital intelligence we need to keep the American people safe.
Isn’t it a bit disingenuous of him to claim that the FISA Law is so “outdated”?
Four key reforms:
First, it brings FISA up to date with the changes in communications technology that have taken place over the past three decades. Second, it seeks to restore FISA to its original focus on protecting the privacy interests of people inside the United States, so we don’t have to obtain court orders to effectively collect foreign intelligence about foreign targets located in foreign locations. Third, it allows the government to work more efficiently with private-sector entities like communications providers, whose help is essential. And fourth, it will streamline administrative processes so our intelligence community can gather foreign intelligence more quickly and more effectively, while protecting civil liberties.
Wow. If we believe him, it’s all to the good. BUT, there are there any dangers in this legislation that the president isn’t talking about? What, from the MCLU/ACLU perspective might those dangers be?
Now, James Risen and Eric Lichtblau reported last Sunday in the New York Times, there are questions about whether this FISA re-writing will open the floodgates of all sorts of new domestic surveillance:
Concerns Raised on Wider Spying Under New Law
… allow the Bush administration to conduct spy operations that go well beyond wiretapping to include—without court approval—certain types of physical searches on American soil and the collection of Americans’ business records” …legal experts said that by redefining the meaning of “electronic surveillance,” the new law narrows the types of communications covered in the Foreign Intelligence Surveillance Act, known as FISA, by indirectly giving the government the power to use intelligence collection methods far beyond wiretapping that previously required court approval if conducted inside the United States.”
I heard Republican Senator Kit Bond vehemently deny the new revisions will do anything other than help us monitor foreign terrorists.
Here’s President Bush last year explaining what he wants to get out of the legislation that followed the Supreme Court Hamden decision of June 2006:
Clips: President Discusses Creation of Military Commissions to Try Suspected Terrorists
So today, I’m sending Congress legislation to specifically authorize the creation of military commissions to try terrorists for war crimes. My administration has been working with members of both parties in the House and Senate on this legislation. We put forward a bill that ensures these commissions are established in a way that protects our national security, and ensures a full and fair trial for those accused. The procedures in the bill I am sending to Congress today reflect the reality that we are a nation at war, and that it’s essential for us to use all reliable evidence to bring these people to justice.
We’re now approaching the five-year anniversary of the 9/11 attacks — and the families of those murdered that day have waited patiently for justice. Some of the families are with us today — they should have to wait no longer. So I’m announcing today that Khalid Sheikh Mohammed, Abu Zubaydah, Ramzi bin al-Shibh, and 11 other terrorists in CIA custody have been transferred to the United States Naval Base at Guantanamo Bay. (Applause.) They are being held in the custody of the Department of Defense. As soon as Congress acts to authorize the military commissions I have proposed, the men our intelligence officials believe orchestrated the deaths of nearly 3,000 Americans on September the 11th, 2001, can face justice. (Applause.)
We’ll also seek to prosecute those believed to be responsible for the attack on the USS Cole, and an operative believed to be involved in the bombings of the American embassies in Kenya and Tanzania. With these prosecutions, we will send a clear message to those who kill Americans: No longer — how long it takes, we will find you and we will bring you to justice.
These men will be held in a high-security facility at Guantanamo. The International Committee of the Red Cross is being advised of their detention, and will have the opportunity to meet with them. Those charged with crimes will be given access to attorneys who will help them prepare their defense — and they will be presumed innocent. While at Guantanamo, they will have access to the same food, clothing, medical care, and opportunities for worship as other detainees. They will be questioned subject to the new U.S. Army Field Manual, which the Department of Defense is issuing today. And they will continue to be treated with the humanity that they denied others.
Recently serious questions have been raised about the fairness of these Commissions. Lt. Col. Stephen Abraham, a 26-year veteran of military intelligence, Army reserve officer, and California lawyer explains in his affidavit that access to possibly exculpatory information was repeatedly denied to decision makers, who were pressured to find that detainees are “enemy combatants,” anyway, despite the lack of solid evidence. “What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence,” Abraham stated.
Is this justice? Will they be presumed innocent?
July 20 in an executive order, the president gave the Central Intelligence Agency the green light to resume what are called by spokespeople like the president’s Homeland Security Adviser Fran Townsend call “enhanced techniques” when interrogating prisoners at secret prisons overseas. Ms. Townsend, just a few weeks ago, told Wolf Blitzer on Late Edition (http://transcripts.cnn.com/TRANSCRIPTS/0707/22/le.01.html)
The order explicitly does ban murder, sexual abuse and religious denigration, BUT it remains silent on the use of psychological torture and specific techniques, such as waterboarding, sleep and sensory deprivation, death threats, stress positions, isolation and use of dogs.