Thursday, July 10, 2014

DoD Policy Gave Al Qaeda Members Money Back in Iraq, but Keeps Money of Cleared & Transferred GTMO Detainees

On the heels of the U.S. government continuing to claim that GTMO detainees are still not "persons" under RFRA even though for-profit corporations are, Jason Leopold has a new piece on Vice News called "By Asking for His Wallet Back, a Gitmo Detainee May have Revealed US War Crimes" that describes the U.S. government's refusal to return seized money to former GTMO detainee Djamel Ameziane who is now back home, and destitute, in Algeria.  The government's refusal is based on a purported "policy" (that it has not produced) not to return seized money to released GTMO detainees despite the clear rule under the law of armed conflict that money of detainees remains their personal property and should be returned to them.  The filings by Ameziane's lawyer (see the motion for return of property) flesh out this basic, and very clear, rule in the 1907 Hague Regulations, the 1949 Geneva Conventions, and customary international law.

The government's response (see gov't opposition here) is not to argue in any depth that their "policy" conforms with international law, but rather that the detainees have no right under current law and D.C. Circuit case law to seek a court's help in challenging it.  The government's only justification for this policy is to prevent the detainee's personal money - even if all they had were very small sums - from being used "in a manner that would adversely impact the safety and security of the United States" by, for example, funding "terrorism."

There are a lot of problems with the government's position, but what I want to focus on here is that this "policy" for GTMO detainees appears to be the exact opposite of the policy for detainees in Iraq, even if they were found to be members of Al Qaeda.  As explained below, provided the sum was less than $5000, the U.S. military, in accordance with the law of armed conflict, would automatically return seized money to released detainees (of many different kinds) in Iraq, which makes the GTMO policy all the more puzzling and unjustified.

In particular, what purports to be the Standard Operating Procedures for Iraqi detention operations under Task Force 134 dated February 2008 (posted by Wikileaks here) contains detailed guidance on the treatment of property seized from detainees in U.S. custody in Iraq (see pp. 42-50), including, especially, the impounding, receipting, and ultimate return of seized detainee money.  The Task Force 134 policy attempts to follow fairly closely the law of armed conflict standards and normal U.S. military regulations for the disposition of detainee currency.  The policy also contains a reasonable exception to the procedure in cases in which a detainee is found with "large sums of Allied/U.S. currency or negotiable instruments" (defined to mean $5000 or more) whereby an investigation is undertaken to see whether the detainee in fact has a personal legal claim to the currency.  This is consistent with the law of armed conflict which protects only "personal" property (as opposed to enemy government property that might be in a detainee's possession) and is reasonable in that in only is triggered by large sums (unlike in the case of Ameziane and other GTMO detainees).

In addition to being yet another troubling departure from legal standards for GTMO detainees, Leopold's piece also quotes Eugene Fidell from Yale Law School who makes an even more compelling argument that the GTMO policy is simply mean spirited. "To take this person's entire net estate and just hold onto it demeans us."

Thursday, March 27, 2014

Does the White House NSA Proposal Enable A Retention-Free Phone Plan?

While the details of President Obama's proposal to change the NSA's § 215 metadata program are still extremely limited, the proposal on its face appears to create an opportunity for an enterprising, aggressive telephone company to offer a retention-free phone plan - the "Snowden Plan" we'll call it.

How so?

The White House proposal purports to leave the telephone records at the telecoms only "for the length of time they currently do today."  As fleshed out by Charlie Savage, the Administration appears to intend to rely upon the FCC's 18-month "retention of telephone toll records" regulation at 47 CFR § 42.6.  Yes, remarkably, this is the same 18-month retention period that the Obama Administration has been actively pretending did not exist (see earlier post here) when it repeatedly and unambiguously asserted that government retention was necessary because the telephone companies "have no legal obligation" (really, watch that clip) to keep such records and only retain them for their own business purposes.

If the Administration now wants to change course and rely upon this same regulation, it should provide an incentive for at least one phone company to aggressively utilize the government's earlier attempts to undermine it, in order to create the most privacy-friendly phone plan allowed by law.

As I said, the Administration is now on the record, repeatedly, as asserting that --  absent the FISC orders -- only the business purposes of the telephone companies control retention. Verizon has argued today (h/t Emptywheel) that going forward companies should also not be required "to store data for longer than . . . they already do for business purposes."  There are legitimate "business purposes" for retaining phone data for at least some period, such as the need for records in resolving billing disputes with customers. However, post-Snowden a potentially more powerful business purpose would be to promote a popular phone plan that utilizes its own "minimization procedures" by limiting retention of such phone data to hours or minutes and finding alternative ways to serve other business needs.

What about the regulation?  Well, in complaining about the problems with the regulation years ago, the DOJ acknowledged plausible interpretations that could avoid the retention period. In particular, in 2006 the DOJ acknowledged the age of the regulation and its outdated usage of "toll records" noting that as telephone carriers have
increasingly moved away from classic billing models, in which charges are itemized and billed by type of service, to non-measured, bundled, and flat-rate service plans, some carriers have claimed that call records under such new plans are not covered by Section 42.6 because they are not "toll records." Therefore, these carriers have argued that no records need be retained.
The fact that the regulation did not substantively change following this could arguably be viewed as a "ratification" of such interpretations similar to that urged by the government in arguing that Congress knowingly "ratified" the Executive's secret interpretations of § 215.  Our enterprising telecom could explore these and other ways of avoiding the regulatory retention requirement that are both creative and legal.

I realize of course that this would not necessarily avoid other requirements under the proposal (for example, once a number is identified to the telecom it may have to produce "ongoing and prospective" records).  And the Administration can figure out a way either to shore up the regulation or buttress it with statute, but it seems to me that a telecom could create some good will by at least attempting to be aggressive in proposing such a plan to customers. Doing so could also have the ancillary benefit of helping to smoke out the real angles of the proposal that will undoubtedly require a lot more of telecoms than what is in their business interests and details that are surely already more thought out than the White House has disclosed.

Monday, March 17, 2014

Yes, the CIA Really Would Have Destroyed the Panetta Review

Sen. Feinstein asserted in her speech last week that the reason why the SSCI removed a copy of the internal Panetta Review from the CIA facility and took it to the Senate -- an action now subject to a DOJ criminal referral -- was the "need to preserve and protect the internal Panetta Review" (my emphasis).  Sure, Feinstein cited the CIA's destruction of the interrogation tapes years ago, but could the SSCI really have a reasonable, justifiable fear that CIA could destroy the Panetta Review? The answer is yes and here's why.

Red Flag: The "Draft" Panetta Review

Every CIA public assertion about the Panetta Review thus far raises a distinct red flag. "It wasn't a review, Senator, it was a summary," Brennan retorted to Udall.  It was never  a "formal study" said former Director Panetta. They were "drafts" "incomplete" and never circulated to the Director, asserted Panetta's former chief of staff. All these statements purporting to undermine the importance of these documents simultaneously suggest strongly that the CIA has also treated them as non-substantive drafts or -- in legal record-keeping jargon -- "working files," which the CIA would not have a long-term legal obligation to preserve.  

The SSCI's clever request for a "final version" of the Panetta Review points to the same issue.  There may be no final version, by design.  That is, CIA may have wanted them to remain "pre-decisional" drafts that would be exempted from disclosure and, ultimately, could be disposable.  Note the language in the redacted CIA emails Politico obtained, in which the CIA General Counsel's office was concerned at one point that the review was going "too fast" -- for a perpetual draft, you don't want to be too close to finished at the wrong time.  

Another possibility is that, in the CIA's view, the "final version" of the Panetta Review is, in fact, the "formal" response the CIA delivered last year to the SSCI report. After all, the intent of the Panetta Review, we are told, was simply to "catalog and analyze" the documents that were being provided to the SSCI and Brennan's letter (via Politico) states that the Panetta Review documents were "written in connection with the CIA's response to the oversight inquiry" (my emphasis).  In this scenario, the Panetta Review documents become part of the draft "working papers" of the formal CIA response.  Sure, they might seem to be contradictory to the final report, but, the CIA would say, that is simply part of the "pre-decisional" process, our final, official position is what is in our response to the SSCI.

Under both a CIA records schedule and a federal regulation, whether "working files" have to be preserved as records essentially comes down to the extent to which they (1) are circulated within the agency (see, e.g., "never circulated to the Director") and (2) contain unique substantive information (see, e.g., "it was just a summary").  The detailed standards are, to say the least, elastic and open to significant interpretation, and manipulation.

But does the CIA really manipulate such standards in order to destroy important documents? A few decades of examples . . .

In investigating CIA assassination operations, the Church Committee in the 1970s highlighted how its inquiry was hampered by CIA document destruction, noting in particular that the CIA had undertaken an "internal study of the Castro, Trujillo and Diem assassination allegations" but that "unfortunately, the working papers relating to that investigation were destroyed upon the completion of the Report" by order of the CIA Director (my emphasis).

Remember when the N.Y. Times revealed in the 1990s that the CIA had destroyed almost all of its documents on the CIA's role in the 1953 coup in Iran in the 1960s?  The CIA publicly expressed concern, but later quietly justified the destruction to NARA by asserting (p. 29) that the destroyed documents were, again, simply "working files." That is, those few documents that remained were the CIA's only "official" records on the coup.  NARA didn't accept that and found that it was unauthorized destruction. According to a former CIA historian, files on CIA operations in Guyana and Indonesia met the same fate, but again the CIA asserted that the destroyed documents were just "working files." The CIA nevertheless publicly stated that "strict procedures now insured that no valuable historical records" would be destroyed.

Later, however, NARA found more broadly in its 2000 evaluation of CIA record keeping that among the "serious shortcomings" within CIA was that it continued to "inappropriately" treat certain "files as non-record working papers or 'soft' files that could be destroyed at will." 

It was after all of this (and while the CIA was supposedly taking remedial measures to address NARA's critical findings) that the CIA determined that live videotapes depicting waterboarding were also not "records" that had to be preserved. My overly-long article on that is here, but the short version is that the CIA treated the tapes, again, as essentially working papers because -- as Feinstein repeated at the top of her speech -- the CIA incredibly asserted that that the written interrogation records made the tapes unnecessary, the equivalent of duplicative drafts, or, as the CIA told Senators in 2004, the tapes were just an "aide to the interrogations." (Incidentally, the DIA used the "working files" justification in destroying its interrogation tapes of Ali Saleh Khalah al-Marri, but at least later acknowledged it was improper to do so).

Of course, we still don't know the precise details of the CIA's legal argument for why the tapes did not require preservation, because the CIA has still not substantively responded to NARA's 2007 inquiry on the destruction (this 2010 letter was the last correspondence from CIA to NARA -- CIA must still be waiting on that "report" from Durham).  But you know who I'm pretty certain has all the details of the CIA's elaborate legal contortions to justify not preserving those tapes?  The SSCI. 

As the SSCI also knows, it was based on these arguments that two CIA attorneys told Jose Rodriguez just before the destruction (as the CIA Office of General Counsel had many times before) that there was no "legal impediment" to the destruction of the tapes.  One of those lawyers was Robert Eatinger who was also (until last week) the acting CIA General Counsel who Feinstein says is named 1,600 times in the SSCI report and who Feinstein accused of attempting to intimidate the SSCI by referring its staff to the DOJ for removing the Panetta Review.

In summary, the connection Feinstein drew between the need to preserve the Panetta Review and the destroyed CIA tapes was neither rhetorical nor abstract. The CIAs public assertions about the Panetta Review raise the distinct possibility that the CIA General Counsel's opinion on the status of these documents -- at least prior to finding out the SSCI had copies and the current Constitutional crisis -- sounded something like this: "The so-called 'Panetta Review' documents have never been anything other than drafts, the summaries themselves were never finalized into any formal report, they were never circulated to the Director, they do not represent an approved, authorized position or official record of the agency.  They are non-substantive working papers. Indeed, given they largely consist of summaries of other classified records they are essentially duplicates. In an abundance of caution, we will retain them while the SSCI completes its investigation, even though the documents fall outside the parameters of the SSCI's document requests and would be immune from an SSCI request in any event, given their privileged, pre-decisional nature.  After the SSCI report is finally complete, the disposition of these papers will be determined in accordance with our normal document retention procedures . . ." I would sincerely be happy to learn that this is inaccurate, but it is enough for the moment that the SSCI might also have reasonably believed the CIA would treat the Panetta Review in this way.

The SSCI's "Imminent" Need to Exfiltrate the Panetta Review

Okay, but even assuming the analysis above is correct, was there really an immediate "need" to "protect and preserve" the Panetta Review that justified the SSCI's removal of it from the CIA facility? Chris Donesa, formerly Chief Counsel for the HPSCI, raised this good point at Lawfare last week, noting that that while the CIA of course could have destroyed the Panetta Review, the CIA "certainly could not have gotten away with it given the Committee not only knew of the materials, but had already reviewed them on multiple occasions."

The answer is that the threat of destruction did not have to be immediate and most likely wasn't. The "imminent" need instead arises from the fact that the SSCI's access and control over its copy of the Panetta Review in the CIA facility was approaching an end because the SSCI was finalizing its report. And as the DOJ has educated us, in determining whether a threat is "imminent" the concept of "imminence must incorporate considerations of the relevant window of opportunity." The SSCI's time to act was rapidly disappearing.

Morever, the SSCI could have easily concluded that the CIA would never let the SSCI retain or remove the Panetta Review from the CIA facility under the normal procedures. The reasonableness of that conclusion has been graphically illustrated after-the-fact by the CIA's potentially unlawful and unconstitutional response to learning the SSCI had these documents.

Finally, the SSCI could have reasonably concluded that there were no other feasible options for securing the Panetta Review that would be likely to succeed. Over at Lawfare Chris Donesa also rightly noted that the SSCI "could have immediately given the materials protected legal status by issuing a subpoena for them." While this is true, the question is whether the SSCI could have reasonably expected it would win the resulting fight over that subpoena, which the CIA would have violently (and fast and furiously) opposed, likely with White House support. During that fight the documents would have remained at the CIA facility, and if the CIA had prevailed, they would have never left. The SSCI was not, and should not have been, willing to take that risk.

As both the SSCI and CIA understand, the significance of the SSCI report is about the long-term legacy of the CIA's detention and interrogation program. If the CIA were the only one with a copy of the Panetta Review, it would not have to destroy it immediately. The CIA would have nothing but time.  It could continue to push its narrative that the SSCI report -- and any SSCI characterizations of the Panetta Review -- are one-sided and inaccurate. The CIA could wait out the furor over the SSCI report and wait until even the most indefatigable FOIA requesters have exhausted their remedies, and then, years from now, the Panetta Review could be quietly and clinically euthanized in the CIA's records center.

In the end, the rubber really only hits the road on that morning -- which could be in 5, 25, or 50 years -- when the CIA's own records are opened to public scrutiny. The SSCI made the right calculation that if it did not act, the Panetta Review would not be in those boxes and the public would not be able to finally compare the CIA's public statements with its internal ones. The CIA would have successfully avoided authenticating the 6,300 page SSCI report as the definitive history of the program through its documentation illustrating that even the CIA itself -- in its honest, internal moments -- knew the SSCI Report to be accurate.  And the CIA would have gotten away with it, because on that day the missing Panetta Review would be a one-day story, in which the CIA spokesperson would recite the same talking points they have always used: the documents were just working files that were not subject to any active judicial or legislative inquiries and they were disposed of in accordance with approved records schedules.

Instead the Panetta Review is a "golden shield" for the SSCI Report that is safely preserved in a Senate vault. Even assuming the worst, that the DOJ determines that the removal of the Panetta Review from the CIA-leased facility was a criminal act by the SSCI, it will still be true that it was a necessary and heroic one.

Friday, March 14, 2014

CIA Legal Dissembling on Motion to Preserve Panetta Review

Just a quick post on a rather remarkable filing by the CIA in the context of a FOIA lawsuit filed by reporter, and tireless FOIA requester, Jason Leopold.  The filing is the CIA's Opposition to Leopold's Motion for a Preservation Order in a lawsuit over Leopold's FOIA request for the CIA's internal "Panetta Review."

Of particular note, the CIA boldly argues in its filing that the "destruction of the interrogation videotapes in 2005 is irrelevant" to whether there is a need for a preservation order in Leopold's case and, a few lines later, that the "conditions under which the interrogation videotapes were destroyed have no bearing on this case" (pp. 4-5). The government's support for these questionable assertions creates a new low for government litigation.

First, the CIA shamelessly cites to ACLU v. Dep't of Defense, 827 F. Supp. 2d 217, in which the court actually held that the CIA had violated FOIA and federal court orders in a FOIA case by destroying the responsive interrogation videotapes and in which the court stopped just short of holding the CIA in contempt for doing so.  The CIA nevertheless asserts that the ACLU case supports its opposition to a preservation order because in Leopold's case, unlike in the ACLU case, the CIA is not arguing that the Panetta Review falls under the CIA's "operational files exemption."  While it is good that the CIA is indicating that it does not plan on manipulating that specific exemption in Leopold's case in order to avoid its preservation obligations, the ACLU case will always stand for the broader proposition that the CIA is willing and able to manipulate FOIA in order to avoid an obligation to preserve relevant records. And as I have explained here, the CIA's manipulation of FOIA in the ACLU case was knowing and intentional.

Second, the other purported support is an even more shameless CIA citation to an unpublished 2008 decision in a GTMO case Abdah v. Bush (here).  In that decision, however, the court simply held that the destruction of the videotapes did not appear to violate the specific, and quite narrow, preservation order that had previously been entered in that specific case.  Indeed, if anything that opinion stands for the proposition that the preservation order the court entered in that case was not broad enough.  Let me explain quickly:

In 2004, Abdah, like Leopold, sought a preservation order and the government filed an opposition (here) that, like today's CIA filing, claimed a preservation order was unnecessary.  The government's filing, which was in January 2005 (ergo, 11 months before the tapes were destroyed), ridiculed Abdah's "conspiracy theory" that the government has a "propensity to destroy evidence" and that there was "no basis whatsoever for suspecting an impending campaign to destroy documents relating to Guantanamo." Moreover, the government claimed that it "strains credulity" that it would destroy any documents given the many pending government investigations into the "mistreatment of detainees"(and it also specifically cited the ACLU FOIA litigation!). Finally, the government declared that it was "well aware" of its broader "obligation not to destroy evidence that may be relevant in pending litigation." Despite the government's protestations, the court in Abdah nevertheless granted a preservation order (here), but it only covered "evidence and information regarding the torture, mistreatment, and abuse of detainees" at Guantanamo, not all evidence relevant to Abdah's case.

Therefore, the Abdah opinion the CIA purports to rely upon is simply the one in which the Court looks at its old preservation order and says the destroyed tapes are not covered by it. The court specifically does not reach the issue (because it was not raised in Abdah's motion) of whether the tapes violated the government's broader duty not to destroy relevant evidence.  If anything, that opinion would argue for plaintiffs like Leopold to request belt-and-suspenders protection through preservation orders when dealing with the government in national security cases and that courts should be more liberal in granting them.

Finally, the CIA's citation to the unpublished Abdah opinion is alarming for the separate reason that the CIA fails to bring to the court's attention the published opinion in Abdullah v. Bush, 534 F. Supp. 2d 22 (D.D.C. 2008) decided just a few weeks after Abdah, in which a court held that another GTMO detainee had made "a colorable showing that information obtained from Abu Zubaydah during 2002 likely included information" about him and that the destroyed tapes were "therefore subject to the preservation order" in that case, which was broader than in Abdah.  This contrary holding in a published opinion goes directly against the point the CIA is making in its motion in Leopold's case.  CIA cites Abdah for the fact that the judge in Abdah "declined to inquire further into whether the CIA had abided by its preservation requirements." Yet in Abdullah, which again the CIA does not cite, that is exactly what the court did.  Based on its finding of a violation of the preservation order in the destruction of the tapes, the court in Abdullah ordered that the government was required to file a report "detailing what they have done since the preservation order was entered . . . what they are now doing, to ensure compliance with . . . the preservation order, and the nature of any evidence potentially subject to the protective order that has been destroyed or otherwise spoliated."  The final kicker is that the government also filed this report in Abdah (here).

It is truly disturbing that this is the support the CIA would put forward in an attempt to distinguish the destruction of the CIA tapes and to support the proposition in its filing today that there is "no reason for the Court to believe that the CIA will not abide by its legal obligations to preserve responsive records."

Thursday, March 6, 2014

Here's a Precedent Showing CIA Spying On Congress Is Not "Unprecedented"

Sen. Mark Udall's reference in his letter to the "unprecedented action" the CIA took against the SSCI, which the NY Times and McClatchy reported yesterday was the CIA monitoring of the SSCI in its work, raises the question: Is that really unprecedented? Unfortunately, no.

Former Chief of the CIA Angola Task Force John Stockwell has a chapter in his 1978 book In Search of Enemies: A CIA Story called "CIA v. Congress" in which he describes at length the CIA "feeding" Congress "patently false information about the ongoing Angolan operation, depriving them of the full information which they needed to perform their constitutional role."  The CIA's interest in controlling the access of Congress to information about the CIA's Angola operations was so great that Stockwell states that (see p. 228) the CIA kept a "soft file" on Senator Richard "Dick" Clark, a member of the Senate Foreign Relations Committee, who was tasked by the Committee to look into the Angola program in 1975.

What's a "soft file"? Stockwell explains:
Since the Freedom of Information Act, the agency increasingly uses a system of "soft," "unofficial," or "convenience" files for sensitive subjects, especially any involving surveillance of Americans. Such files are not registered in the agency's official records system, and hence can never be disclosed under the FOIA. 
The "soft file on Senator Clark" was useful when he traveled to the region for a Senate fact-finding trip.  Stockwell notes that the file contained, among other things, "a cable from headquarters to Kinshasa instructing the chief of station to see Mobutu [Sese Seko] and Holden Roberto and prep them for their meeting with Senator Clark." Stockwell states that when he questioned at a CIA staff meeting whether it was appropriate for the CIA to tell African leaders "what they should and should not tell" the Senator on his visit, he was met with a "chorus of sharp voices" indicating that the CIA had "already told Clark everything he needed to know."

Stockwell further notes that although the rest of the CIA's "file on Senator Clark was 'soft,' and therefore safe from the Freedom of Information Act" the specific cable he described was duplicated in the central file of CIA cables and noted that it was "admitted that it wasn't very smart having a cable like that in the files" because the CIA could eventually "expect the Senate to close the program down and investigate it" and the Senate "just might get their hands on such a cable and kick up a fuss."

The CIA's own 2008 history of its relationship with Congress The Agency and the Hill written by L. Britt Snider, picks up the aftermath of Stockwell's revelations (Ch. 9, p. 282), which involved an investigation by the SSCI and a fallout that bears a striking resemblance to recent days . . .