February 2016 Archives

NOTE: Press Release and link (should you elect to open it) to Yoo letter contained therein by Office of the Director of National Intelligence, c/o government website, 

ODNI & DOJ Announce the Release of a Previously Classified Letter
from Former Deputy Assistant Attorney General Yoo to former FISC
Presiding Judge Kollar-Kotelly 

February 29, 2016

The Letter

The Department of Justice has released today in redacted form a previously classified 2002 letter from former Deputy Assistant Attorney General John Yoo of the DOJ Office of Legal
Counsel addressed to former Foreign Intelligence Surveillance Court Presiding Judge,
Colleen Kollar-Kotelly. The letter was designed to address certain questions that Judge
Kollar-Kotelly raised during her first briefing on May 17, 2002, concerning certain collection
activities authorized by President George W. Bush shortly after the attacks of September
11, 2001, referred to as the President's Surveillance Program. As described in the publicly
released Inspectors General reports concerning the PSP dated July 10, 2009 (published April
25, 2015 and September 21, 2015), Judge Kollar-Kotelly was permitted to read the
letter, but was not authorized to retain a copy or take notes. The 2002 letter purports to
generally outline the scope of the President's legal authority to conduct possible
electronic surveillance techniques after the attacks of September 11, 2001. Beginning in
2004, the Department of Justice thoroughly reexamined the factual underpinnings and
legal analysis for the PSP culminating in a legal opinion issued by the Office of Legal
Counsel on May 6, 2004. (That opinion is also publicly available in redacted form)

Additional Background

As previously released in the IC on the Record posting of December 21, 2013, President Bush
authorized the NSA, via a series of classified authorizations beginning in October 2001, to
collect three "baskets" of information, including: (1) the contents of certain international
communications (which was later referred to as the Terrorist Surveillance Program); and the
bulk collection of non-content (2) telephony and (3) Internet metadata, subject to various
conditions. NSA's content interception activities under the TSP were limited to the acquisition of
specific international communication (i.e., to or from the United States) involving persons
reasonably believed to be associated with al Qaeda and affiliated terrorist organizations. Over
time, these presidentially-authorized activities were transitioned to the authority of the Foreign
Intelligence Surveillance Act. The collection of communications pursuant to the TSP ended in
2007, and the Government transitioned this collection to be undertaken pursuant to FISA
authority and orders of the Foreign Intelligence Surveillance Court. Later, in August 2007,
Congress enacted the Protect America Act as temporary authority to provide for the acquisition
of certain communication content. The PAA, which expired in February 2008, was replaced by
the FISA Amendments Act of 2008, which was enacted in July 2008 and remains in effect.
Today, content collection targeting non-U.S. persons reasonably believed to be located
overseas for foreign intelligence purposes is conducted pursuant to section 702 of FISA. No
U.S. person or person located in the United States may be intentionally targeted pursuant to
section 702. The bulk collection of Internet metadata under the PSP was transitioned to the
authority of the FISA in July 2004 (and ceased in December 2011, when the U.S. Government
decided to not seek reauthorization from the FISC).The bulk collection of telephony metadata
under the PSP was transitioned to the authority of the FISA in May 2006. In November 2015,
the USA FREEDOM Act ended the NSA's collection of telephone metadata in bulk, and
provided a new mechanism for the Government to obtain the targeted production of call detail
records relating to authorized investigations to protect against international terrorism through
applications to the FISC.
The transition of PSP activities to authority of the FISA is described in greater and more specific
detail in documents previously disclosed in IC on the Record. 
President Obama's plan to transfer Guantanamo detainees to super-max prisons in the U.S. could actually worsen their conditions of detention:

"Guantanamo Bay is not as exceptional as we might like to imagine," argue Monia Mazigh and Azeezah Kanji at thestar.com. "Physical and psychological abuse are not restricted to spaces expelled from the normal American legal system. American prison brutality did not begin at Guantanamo, and will not end with its long-promised closure."

Photo c/o Jump Cut
A constitutional lawyer, even one trained by UC Berkeley School of Lawfare's Christopher Edley (the former Boalt Hall Dean taught Barack Obama at Yale, provided consultation services for his presidential campaign, and has upheld the President's decision to avoid investigation of criminal actions of the Bush administration), should understand the rule of law. 

Guantanamo prisoner Moazzam Begg challenges President Obama to say "the one thing he hasn't said so far, [which] would make it very difficult not to close Guantanamo... That is to say that those people who have been held without charge or trial and there is no evidence against, are innocent."

"You have had 14 years of the world's most powerful law enforcement security agencies interrogating these guys," Begg adds, "if you don't have the evidence now you never will."

Know the Facts About Torture

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"In 1994, the prohibition against torture became the law of the land and a crime punishable by up to 20 years in prison or in some instances by life imprisonment or death," notes Curt Goering, Executive Director of The Center for Victims of Torture. "President Obama's refusal to prosecute perpetrators of torture no doubt undermines the public's understanding that torture is a crime."

If Americans are presented with facts, their attitudes to torture change dramatically... Donald Trump might be 'fine' with torture, but most Americans aren't. 

Tough Guys, Loose Talk

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What the current "debate" over bringing back torture highlights, however, besides how perverse the Republican dialogue has become, is why prosecutions of the Bush-era CIA torture program are essential, and why it is so damaging that the Obama administration has shirked its responsibilities in this regard for more than seven years...

GOP presidential candidates are endorsing torture, again.

"Waterboarding a prisoner is against international law and could subject the torturer -- or the person ordering or approving the torture -- to international sanctions, including prosecution in international courts," writes whistleblower John Kiriakou

"What Trump and his cronies are advocating is illegal, immoral, and unconstitutional. In fact, it's an impeachable offense. No president can order anybody to commit torture. Anyone who does should be hauled before a judge." 
US Navy veteran Joe Tougas, dressed in Guantanamo Bay detention camp garb, volunteered to be waterboarded at UC Berkeley, home of CIA "enhanced interrogation techniques," to demonstrate that the practice is a severe form of inhumane torture. Photo by John Han
"Time. We can't get it back. When it's gone, it's gone. The families embracing their returning fathers, sons and husbands after 10 months of separation in Connecticut know it. [Released political prisoner] Shaker Aamer and his children -- Faris, Said, Michael and Johina -- meeting almost as strangers after 13 years apart know it too. All those innocent men released from Guantánamo and still struggling to find their footing in strange lands -- and still struggling to heal from severe trauma -- know it too. And so do those 91 men who remain at Guantánamo, while their families wait for them." 

-- Frida Berrigan, WagingNonviolence.org

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Events & Calendars

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Important Reading

Physicians for Human Rights
Broken Laws, Broken Lives

NLG White Paper

The President's Executioner

Detention and torture in Guantanamo

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