Friday, December 20, 2013

Judgment in UK Civil Case Involving Captured Libyan Documents

There is a judgment (hat tip Just Security) in the civil lawsuit against portions of the U.K. government brought by Abdul-Hakim Belhaj and his wife Fatima Boudchar relating to their detention, rendition, and mistreatment (previously discussed here).  In a lengthy opinion the High Court held "with hesitation" that the claims were barred by the act of state doctrine. The Court noted that its "hesitation" at its own conclusion arises from:
a residual concern that (on the basis of the Particulars of Claim) what appears to be a potentially well-founded claim that the UK authorities were directly implicated in the extra-ordinary rendition of the Claimants, will not be determined in any domestic court; and that Parliamentary oversight and criminal investigations are not adequate substitutes for access to, and a decision by, the Court.
And specifically in relation to the application of the act of state doctrine, the Court noted:
Although the act of state doctrine is well-established, its potential effect is to preclude the right to a remedy against the potential misuse of executive power and in respect of breaches of fundamental rights, and on a basis which defies precise definition. It is a doctrine with a long shadow but whose structure is uncertain.
Of particular interest to this blog is the High Court's discussion of the unique fact that certain allegations in the lawsuit are based on evidence from the "Tripoli files" found by journalists and members of Human Rights Watch in an abandoned military intelligence headquarters during the fall of the Qaddafi regime in 2011.  The documents (previously discussed here, here, and here) include C.I.A. and MI-6 documents related to the rendition of Belhaj (referred to in the documents as Abu Abdullah Al-Sadiq) and his wife, who was pregnant at the time.

While it is unclear whether the U.K. government defendants would have ultimately challenged the authenticity of the documents were the proceedings to have continued, the High Court notes at para. 4 the unique nature of the evidence:
Although many of the facts relied on by the Claimants are neither admitted nor denied by the Defendants, unusually, some appear to be supported by documents which have come into the Claimants' hands as a result of the change in political fortunes in Libya.
The High Court cites them repeatedly in its recitation of the "factual assertions forming the basis of the claim":
On 1 March 2004 the 3rd Defendant (MI6) sent a fax to the Libyan intelligence services informing them that the Claimants had been detained in Malaysia and identifying the place where they were held.
On 6 March 2004 the US authorities sent two further faxes to the Libyan authorities informing them that the Claimants were due to be placed on a commercial flight from Kuala Lumpur to Bangkok, that the abduction and rendition would take place in Bangkok and that they would be placed on a US aircraft for a flight to Libya.
A more detailed "Schedule for the Rendition of [the First Claimant] to the Libyan authorities" was faxed later that day: the Claimants would be abducted in Bangkok, flown to Diego Garcia (a British Indian Ocean Territory) for refuelling of the aircraft, and then on to Tripoli.
The "Schedule" the Hight Court referenced is pictured below.

Despite the High Court's conclusion that the claims were barred, the lawsuit, along with the captured records, has nevertheless helped to document the rendition of the two individuals and the involvement of the U.S. and U.K. governments.

Wednesday, December 11, 2013

Conflict Records Research Center in the FY 2014 NDAA

The compromise FY 2014 National Defense Authorization Act (NDAA) draft released yesterday (available here) includes an important new statutory provision (see § 1071) related to the Conflict Records Research Center (CRRC), which has been providing access to an impressive collection of captured records from Saddam's Iraq and Afghanistan.  An earlier post discussed the CRRC's funding crisis, which was due, in part, to the delay in the consideration of the NDAA in Congress.  According to its last update, the CRRC has subsequently been operating with bridge funding and one employee.

Section 1071 of the FY 2014 NDAA draft is entitled "Enhancement of the capacity of the United States Government to analyze captured records." It includes a provision that will become, if passed, 10 U.S.C. § 426 called "Conflict Records Research Center" that authorizes the Secretary of Defense to establish the CRRC.  This may seem odd given that the CRRC of course already exists within the National Defense University, but providing an explicit statutory basis for the CRRC may place it on more firm footing going forward.

Moreover, the other substantive provisions appear to be designed to broaden the CRRC's ability to obtain funding.  According to the "Joint Explanatory Statement" the "additional statutory authorization would allow the [CRRC] to be funded collectively by the Department of Defense, the Office of the Director of National Intelligence, and other departments and agencies, rather than rely on discrete partner funding for each activity."  The provision "would also allow the [CRRC] to receive funding from other agencies, states, or other foreign and domestic entities, including academic and philanthropic organizations, to support important research in international relations, counterterrorism, conventional warfare and unconventional warfare."

Other noteworthy detail includes the statutory "purposes" of the CRRC:
(1) To establish a digital research database, including translations, and to facilitate research and analysis of records captured from countries, organizations, and individuals, now or once hostile to the United States, with rigid adherence to academic freedom and integrity. 
(2) Consistent with the protection of national security information, personally identifiable information, and intelligence sources and methods, to make a significant portion of these records available to researchers as quickly and responsibly as possible while taking into account the integrity of the academic process and risks to innocents or third parties. 
(3) To conduct and disseminate research and analysis to increase the understanding of factors related to international relations, counterterrorism, and conventional and unconventional warfare and, ultimately, enhance national security. 
(4) To collaborate with members of academic and broad national security communities, both domestic and international, on research, conferences, seminars, and other information exchanges to identify topics of importance for the leadership of the United States Government and the scholarly community.
Finally, the draft includes a statutory definition of "captured record:"
The term "captured record" means a document, audio file, video file, or other material captured during combat operations from countries, organizations, or individuals, now or once hostile to the United States.
Voting on the FY 2014 NDAA could begin later this week.

Monday, December 9, 2013

Is DOJ National Security Division Complying with Federal Records Act?

In the new Shane Harris piece on Foreign Policy "White House v. Holder: The fight over the government's top national security lawyer" about the controversial nomination of John Carlin as the head of the DOJ's National Security Division (NSD), there is a passage (h/t Patrice McDermott) that raises some serious questions about how Carlin, currently acting head of the NSD, is (or is not) complying with the federal records laws:
Two former officials, citing conversations with current Justice Department employees, said that Carlin is avoiding taking documented positions before his Senate confirmation hearing. Instead, Carlin has requested that colleagues not copy him on emails about sensitive policy issues. Many of Carlin's communications are taking place by phone, former officials said. A date for a confirmation hearing hasn't been set. 
Contrary to what frequently appears to be popular "wisdom" within the government, face-to-face meetings and telephone calls do not exempt agency activities from the federal record keeping laws. As the DOJ is unquestionably aware, the federal records laws are not simply about preserving records that have been created; they also impose an affirmative obligation to make records "containing adequate and property documentation" of the "policies, decisions, procedures," etc. of federal agencies that are "designed to furnish the information necessary to protect the legal" rights of the Government "and of persons directly affected by the agency's activities."  44 U.S.C. § 3101.  Whatever might be the practices of Carlin's compatriots who work within the National Security Council, the activities of a senior agency official such as Carlin requires documentation.

As in the case of the missing John Yoo emails, wherein Yoo apparently considered only one email he sent to be a federal record during his entire tenure at the DOJ Office of Legal Counsel (see here footnote 1), or in the case of the June 2005 GTMO court filing in which the DOJ represented that the U.S. government defendants were "well aware of their obligation not to destroy evidence that may be relevant in pending litigation" a few months ahead of the November 2005 destruction of relevant videotapes, the DOJ has unfortunately not provided a lot of confidence that federal record keeping obligations are a high priority.  Moreover, such actions are particularly disturbing within the DOJ who is ultimately tasked with enforcing possible violations.  Cf. Am. Friends Serv. Comm. v. Webster, 720 F.2d 29, 41 (D.C. Cir. 1983) (noting "allegedly illegal destruction" of records that was "attributed to the very agencies in charge of filing suit to protect the records)."

Hopefully as part of his nomination hearings, the Senate will take up this issue and inquire into whether John Carlin has in fact attempted to avoid creating documentation of his activities in violation of the spirit and/or letter of the federal records laws.  The last thing the government needs is another national security official with accountability problems.

Monday, November 25, 2013

Blueprint for Litigation Over the Iraqi Jewish Archives

The ongoing controversy over the Iraqi Jewish Archives (discussed in other contexts hereherehere, and here) -- which were found in Iraqi intelligence headquarters in Baghdad in 2003, brought to the United States for preservation, and are currently on display at the National Archives -- appears fairly straightforward: should they or should they not be returned to Iraq?

The U.S. government is planning to return the archives to Iraq next year, but there is significant opposition. An online petition and letters from Sen. Schumer and other members of Congress to Secretary of State John Kerry demand that the United States not return them.  Separately, Iraq has indicated it may be willing to negotiate to allow them to stay longer -- but still temporarily -- in the United States.

This post (the first of several on the debate) explores another potential forum for the controversy: a U.S. court. Could a lawsuit prevent the return of the archives and/or challenge Iraqi government assertions of ownership?

The short answer is that the chances of formally blocking the return of the archives to Iraq by court order are slim, but there is a navigable path to persuading a U.S. court to adjudicate legal ownership over the archives.  While litigation is often a poor method of dispute resolution, the Iraqi Jewish archives may present a scenario in which a court's careful balancing of the property rights of individuals with the sovereign rights of Iraq and a fact-intensive examination of the history, the law, and the documents could be uniquely valuable.


While the basic story has been covered in recent press, for more in-depth background the required reading is Bruce P. Montgomery's excellent article "Rescue or Return: The Fate of the Iraqi Jewish Archive" in the International Journal of Cultural Property (posted here with Bruce's kind permission), which also frames some of the legal issues that are explored below.  Moreover, a crucial set of background documents recently released via FOIA are now up on the National Archives and Records Administration's (NARA) Iraqi Jewish Archives website:

(1) An August 17, 2003 letter from the Iraqi Ministry of Culture/State Board of Antiquities and Heritage (SBAH) to the CPA that authorized the removal of the archives from Iraq for purposes of preservation provided that they would be returned to Iraq within two years;

(2) An August 20, 2003 agreement between the Coalition Provisional Authority (CPA) and NARA that contemplated the NARA exhibit of the archives now ongoing;

(3) A June 28, 2004 Letter of Designation from the CPA (just as sovereignty was passing back to Iraq) that appointed the Iraqi Ministry of Culture as the CPA's designee under the August 2003 CPA-NARA agreement; and

(4) A June 2011 Interagency Agreement between the State Department and NARA relating to the completion of the preservation of the archives and their transfer back to Iraq.

These newly-released documents provide details not previously known and allow analysis of some of the legal issues at a greater level of specificity.

Turning to possible litigation, the first threshold issue is, of course . . .

Who could file a lawsuit over the Iraqi Jewish Archives?

Locating plaintiffs who have standing to present a claim of ownership to some portion of the archives is a first challenge.  Ideally, this would be individuals directly divested of ownership.  Moving one step further would be descendants of such individuals.  A step further than that would be organizations that could plausibly claim to act on behalf of the former Iraqi Jewish community.  One website is inviting individuals to identify themselves to "claim" their "Iraqi heritage" and the NARA exhibit and digital collection may assist in identifying potential plaintiffs (as this WashPo article illustrated).

Assuming proper plaintiffs can be found, there are significant obstacles to a suit ever reaching the final issue of ownership, such as the Immunity from Seizure Act, the Foreign Sovereign Immunities Act, and the Act of State doctrine.

Can the return of the archives be blocked? thImmunity from Seizure Act

The Immunity from Seizure Act (22 U.S.C. § 2459) is designed to protect foreign cultural property brought in the United States for temporary exhibition from being seized by U.S. litigants.  In August 2003, the State Department published this Notice in the Federal Register determining (1) that:
historic and modern books, documents, parchment scrolls, and other items discovered in early May 2003 in the basement of the Mukhabarat in Baghdad, most of which pertain to the Jewish community, imported from abroad for temporary exhibition in the United States, including restoration necessary thereto, are of cultural significance
(2) that these materials were "imported pursuant to an agreement with the foreign owner or custodian" and (3) that their eventual exhibition at NARA "is in the national interest."

What does this mean?  Under the Immunity from Seizure Act, the publication of these determinations means that no U.S. court "may issue or enforce any judicial process, or enter any judgment, decree, or order" that deprives the institution exhibiting the property -- in this case NARA -- of custody and control of the property.  On first blush, that seems quite broad, and if a lawsuit were filed in relation to the Jewish archives, the DOJ would unquestionably intervene and challenge the suit on this basis.

A plaintiff could, in turn, directly challenge the State Department's determinations and the invocation of the Act.  It is hard to believe that the due diligence State purports to require for requests for immunity was undertaken in the case of the Jewish archives. This checklist requires a "professional inquiry" using "independent, multi-source research" into the provenance of the property and a certification that the applicant does not know "or have reason to know" of any "potential for competing claims of ownership." Was there really such a certification regarding the Jewish archives?  Moreover, the CPA/NARA Agreement may support an argument that the planned "exhibition" was a pretext to invoke the Act and that the presence of the archives in the U.S. for more than a decade without any such exhibition stretches the Act too far.  The best time for such a challenge, however, would have been years ago when no exhibition was imminent.  In any event, a challenge to the State Department determinations would be unlikely to prevail. See, e.g., Magness v. Russian Federation, 84 F. Supp. 2d 1357 (S.D. Ala. 2000) (refusing to overrule immunity from seizure determination and to prevent the return of cultural artifacts to Russia).

While the Immunity from Seizure Act may likely therefore preclude a lawsuit against NARA challenging NARA's custody or NARA's plan to return the documents to Iraq, the Act may still allow a U.S. court to hear a case against the foreign "owner" -- the Republic of Iraq, the Iraqi Ministry of Culture, and/or the Iraqi SBAH -- in relation to the legal status of that property.  See, e.g., Malewicz v. City of Amsterdam, 362 F. Supp. 2d 298, 312 (D.D.C. 2005) ("Immunity from seizure is not immunity from a suit for a declaration of rights").   As in the Chabad v. Russian Federation case regarding Jewish archives in Moscow (previously discussed here and here), a lawsuit related to the legal issue of ownership doesn't even necessarily require that the property be in the United States.

A suit against a foreign sovereign government, however, raises other issues . . .

Does the Foreign Sovereign Immunity Act preclude litigation against Iraq?

The Foreign Sovereign Immunity Act (generally at 28 U.S.C. §§ 1602-1611) provides immunity for foreign governments in U.S. courts unless certain exceptions to that immunity apply.  The Act was designed as a shield, but the exceptions have also become swords for plaintiffs.  Here, the most promising is the "takings" or "expropriation" exception (§ 1605(a)(3)) which might permit a lawsuit against Iraq or Iraqi government cultural entities, if a plaintiff shows (1) that the Jewish archives were taken in violation of international law AND (2) that the Iraqi government defendant has engaged in commercial activity in the United States.

(1) Taking in violation of international law

For purposes of the sovereign immunity analysis, a plaintiff need not prove with finality that the archives were taken in violation of international law -- that will come if, and when, the case reaches the merits. Instead, the plaintiff must present "substantial and non-frivolous" allegations that a taking in violation of international law is legitimately in issue in order for the court to exercise jurisdiction against a foreign government.  Chabad v. Russian Federation, 528 F.3d 934, 941-42 (D.C. Cir. 2008).

The discovery of the Jewish archives in Saddam's intelligence headquarters is consistent with the confiscation of the property from the Jewish community during Iraq's history. A possible problem is that, to the extent the Iraqi government seized the archives, pursuant to Iraqi law, from individuals who were at the time Iraqi citizens, some courts would refuse to recognize that as a violation of international law.  See, e.g., De Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385, 1396 (5th Cir. 1985) ("As long as a nation injures only its own nationals" the injury "is a purely domestic affair" and is "outside the ambit of international law"); Dreyfus v. Von Finck, 534 F.2d 24 (2d Cir. 1976) (denying claim by German citizen for restitution of property confiscated by Nazis, stating "violations of international law do not occur when the aggrieved parties are nationals of the acting state").

Other courts, in contrast, have held that foreign government confiscations of property of their own citizens could be violations of international law if the taking was discriminatory and without payment of just compensation. See, e.g., Cassirer v. Kingdom of Spain, 616 F.3d 1019, 1027 (9th Cir. 2010) (finding painting seized by Nazi Germany from individual in Germany to be a violation of international law).  Moreover, there may be a factual, historical argument that the relevant "taking" occurred when the owners of the property were no longer citizens of Iraq.  According to Sen. Schumer's letter, for example, items within the archives were placed in a Baghdad synagogue during the mass exodus of the Iraqi Jewish community in the "early 1950s" and were only much later "seized by Saddam Hussein in 1984" when the original owners would have long since resettled in other countries.  To the extent this is accurate, it could arguably internationalize the taking and provide support that such confiscations could violate international law even assuming a restrictive interpretation of the "ambit of international law."  Cf. Chabad v. Russian Federation, 528 F.3d 934, 943-44 (D.C. Cir. 2008) (discussing whether at time of taking plaintiff was, or was not, a Soviet citizen).

Given all of this, the right plaintiff may be able to satisfy this element. On the second . . .

(2) Commercial activity

Under the Foreign Sovereign Immunities Act, the required "commercial activity" could come in two forms.  Assuming the case is filed while the archives are still in the United States, the plaintiff could demonstrate that the Iraqi defendant engaged in a commercial activity in connection with the archives being in the United States or that the Iraqi government, as "owner," more generally engages in commercial activity in the United States.

An important clarification is that "commercial activity" is not limited to for-profit activities, but is much broader.  In determining whether an activity is "commercial" the "central question is whether the activity is of a kind in which a private party might engage." Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 708 (9th Cir. 1992).  Courts have held, for example, that a foreign government loaning artwork to a U.S. museum and promoting its exhibition, even on a nonprofit basis, can itself be "commercial activity." See, e.g.Malewicz v. City of Amsterdam, 362 F. Supp. 2d 298, 314 (D.D.C. 2005) ("There is nothing 'sovereign' about the act of lending art pieces, even though the pieces themselves might belong to a sovereign. Loans between and among museums (both public and private) occur around the world regularly").  [As an aside, last year Congress considered a bill called the "Foreign Cultural Exchange Jurisdictional Immunity Clarification Act" that would have prevented such actions from constituting "commercial activity," but the bill never became law.]

Excluded from this expansive definition of "commercial activity," therefore, is a rather limited class of sovereign acts that are uniquely governmental in character such as legislative acts or diplomatic or military activities.

So has Iraq engaged in commercial activity in connection with the NARA exhibit?

Here, the recently released agreements and letters provide valuable detail.  The initial involvement of Iraq is documented in the August 17, 2003 letter from the Iraqi SBAH to the CPA.  In this two-paragraph letter the Chairman of the SBAH simply indicated that "we support" the CPA's "effort to protect these documents from further damage" and then states:
According to paragraph No. 21 of the Iraqi Antiquities Law No. 55 for the year 2002, we agree with your plan to send the documents to the United States temporarily for the restoration by National Archives and Records Administration (NARA) on the condition that, following the restoration, the documents are returned to Iraq
For purposes of the "commercial activity" analysis, Iraq authorizing the temporary removal of the archives from its territory pursuant to its antiquities law is arguably precisely the type of act only a sovereign government, and not a private party, can perform and therefore is not "commercial activity."  The SBAH letter does not mention, or evidence any Iraqi involvement in, the exhibition of the archives.

The exhibition plan is instead in the CPA-NARA agreement, which raises another issue: could the actions of the CPA, with legal authority over Iraq during a belligerent occupation, be imputed to Iraq?  That is, could the CPA's involvement in the transfer of the archives to the U.S. for exhibition be "commercial activity" that could be attributed to Iraq?  In relation to the CPA's direct actions, that may be a stretch (although worth further research).  The CPA's June 2004 appointment  of the Iraqi Ministry of Culture as its designee, however, to control the execution of the CPA-NARA agreement thereafter could be a more direct connection between Iraq and potential "commercial activity" related to the exhibition.  Indeed, even moving beyond the underlying documentation, NARA's Iraqi Jewish Archive website currently identifies Iraq as a "partner" providing "continued support and advice."

Finally, beyond its specific connections to the Jewish archives, a plaintiff could investigate more broadly other activities of the relevant Iraqi government defendants in the U.S. that may constitute "commercial activity." Has the Iraqi Ministry of Culture and/or SBAH, for example, engaged in any commercial activity in the U.S. in connection with various partnerships with U.S. entities (see, e.g., here and here), other previous cultural exhibition agreements, or even in relation to its involvement with the Ba'ath Party documents at the Hoover Institution?

Act of State Doctrine

An additional possible obstacle is the Act of State doctrine, pursuant to which traditionally U.S. courts will not "examine the validity of a taking of property within its own territory by a foreign sovereign government" even if the taking may have violated international law. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964).

The doctrine raises a similar problem to that discussed above in relation to whether the seizure of the Jewish archives in Iraq from Iraqi citizens would violate international law.  The same factual question may similarly determine how the Act of State doctrine might apply -- when exactly was the "taking" of the archives?  For this doctrine the primary question may become whether the confiscations occurred before or after 1959.  This is because Congress has limited the application of the Act of State doctrine for confiscations of property in violation of international law after  January 1, 1959 via the so-called Second Hickenlooper amendment at 22 U.S.C. § 2370(e)(2).  That is, if the confiscations occurred after 1959, the doctrine would not preclude the court from looking into the issue of whether the seizures violated international law.

Do we ever get to the actual issue of ownership?

The central frustration of litigation over the Jewish archives would be the significant period of time that could elapse before all these preliminary questions of jurisdiction and immunity (and others) -- any of which could result in dismissal of the case -- are finally determined before a court will consider the substantive issue of ownership.  While I will save full consideration of that ultimate question to another day, a couple of final thoughts.

First, given the long delay before reaching the merits, the possible effect of the lawsuit on the return of the archives becomes unpredictable, but fascinating.  While the Immunity from Seizure Act, as discussed above, may preclude an effort to prevent the return of the archives by court order, an active lawsuit calling into question the ownership of the archives might nevertheless alter the U.S. government's calculations regarding their return to Iraq. Moreover, while litigation could create a corresponding incentive for Iraq to demand a prompt or even expedited return of the archives, the return itself would have the effect of lifting the protection of the Immunity from Seizure Act, thereby empowering a court, depending upon its ultimate determinations regarding ownership, to order a transfer of custody to a prevailing plaintiff.  While the chance of Iraq complying with such a court order would unquestionably decrease if the archives had already returned to Iraq, a refusal could result in the same kind of contempt sanctions being imposed on the Russian Federation on a daily basis in the Chabad case.

Second, in relation to the merits, I will say that the growing digital collection of the material increasingly appears to undermine an implicit assumption of the broader debate that the "Iraqi Jewish Archive" should be treated as one whole.  The scope of the material varies widely (which is not surprising given their haphazard discovery in a flooded basement).  On one extreme, there are documents and photographs of a personal nature that defy classification as Iraqi government records or Iraqi cultural property . . .

On the other extreme, there are Iraqi ministry records relating to Iran, Iraqi intelligence records about Israel, and others that rather clearly appear to be Iraqi government records . . .


Put another way, the "Iraqi Jewish Archive" is not always "Iraqi," not always "Jewish," and it is not a unified, cohesive "Archive."  This argues for a careful, fact-intensive examination of the materials in assessing their proper status whether in public debates over the controversy, in formal diplomatic negotiations, or, as a last resort, in court.

Saturday, November 2, 2013

The Ballad of David Miranda: William Worthy is the Right Precedent for Miranda Case

Reports today that Britain is defending its confiscation of electronic media from Glenn Greenwald's partner David Miranda by arguing that Miranda was engaged in "terrorism" by traveling with copies of documents leaked by Edward Snowden brings to mind an earlier precedent that illustrates how Miranda's suit seeking the return of the confiscated property ought to be resolved: the case of journalist and activist William Worthy.  When the U.S. government seized copies of U.S. classified documents in Worthy's possession, Worthy sued and ultimately got the equivalent of a rare apology from the U.S. government for violating his constitutional rights -- and $16,000!

In 1981, Worthy and two colleagues were among the first U.S. journalists in Iran following the 1979 fall of the Shah and the 1981 release of the U.S. hostages. While there, they purchased 12 volumes of books published by a group of Iranian students which included classified documents seized from the U.S. embassy in Tehran (previously discussed here and available online here).

When the journalists came back to the United States, however, FBI agents met and questioned them and Customs officials confiscated the volumes of documents. Although charges were never brought, WashPo reported at the time that according to "Justice sources" the U.S. government considered using the situation as "a trial case to establish that any possession or publication of classified information is illegal, although officials have yet to decide whether to prosecute the three journalists." Morever, WashPo stated
Although several of the documents have been circulated in the United States, most have never been printed here. Justice Department sources say the department . . . hopes to prevent the return of the documents to Worthy . . . and to establish a legal rationale for such seizures where non-government officials possess copies of classified materials.
In the Bazaars, Anyone Can Buy U.S. Secrets, Wash. Post, Jan. 31, 1982, at A18 (pox on WashPo for no free link).

While Customs confiscated the volumes in the journalists' luggage, a second copy sent by Worthy through the mail resulted in a series of front-page stories in the Washington Post (again pox on WashPo for no free links). See, e.g., Scott Armstrong, Iran Documents Give Rare Glimpse of a CIA Enterprise, Wash. Post, Jan. 31, 1982, at A1; Scott Armstrong, Intelligence Experts Had Early Doubts About Shah's Stability; '76 Intelligence Reports Cast Doubt on Stability of Shah, Wash. Post, Feb. 2, 1982, at A1; Scott Armstrong, The Shah's Last Days; Gloomy Reports by Career Diplomats Never Registered with Foggy Bottom, Wash. Post, Feb. 3, 1982, at A1.

With representation from the ACLU, Worthy filed suit in January 1982 seeking the return of the confiscated documents and alleging that the government had violated his rights under the First and Fourth Amendments (the case is Worthy v. Webster, Docket No. 82-0183 (D.D.C), but someone needs to visit the National Archives to pull the records).

What happened?

It is a sad day when we have to look to the Reagan Administration for an example of doing the right thing, but the Department of Justice did the opposite of what Britain is doing now and agreed to a settlement with Worthy, in which the U.S. government completely capitulated.  The government returned the confiscated books, agreed to destroy all fingerprints taken from the journalists and all investigative records, and paid them a $16,000 apology. See U.S. Settles Journalists Suit, Wash. Post, Dec. 10, 1982. If only Britain would follow that example today.

In 2008, William Worthy was awarded the Lyons Award for Conscience and Integrity in Journalism from Harvard which noted his role in the publication of the classified U.S. documents from Iran, but the greatest tribute to Worthy still has to be the "Ballad of William Worthy" by the great Phil Ochs (which related to an earlier controversy involving Worthy, but is still relevant).  If only Phil Ochs were around today to write one for that "terrorist" David Miranda . . .

Tuesday, October 29, 2013

More CIA Records on Noam Chomsky the CIA Could Not Find

It turns out that there are even more CIA records on Noam Chomsky including memoranda indicating that the CIA was documenting Chomsky's activities specifically as part of the CIA's  CHAOS/MHCHAOS espionage program. Take a look, for example, at this:

You'll recall a couple of months ago John Hudson at Foreign Policy reported that the CIA was forced to admit that it had kept at least one record on Noam Chomsky, "Exclusive: After Multiple Denials, CIA Admits to Snooping on Noam Chomsky" which was based on this single CIA document recently obtained via a FOIA request by Kel McClanahan at National Security Counselors to the FBI on behalf of Chomsky biographer Fredric Maxwell, after the CIA had repeatedly denied possessing any such records.

Additional CIA records on Chomsky can be found in a collection of documents the CIA provided to the House Select Committee on Assassinations (HSCA) which was established in 1976 to investigate the assassinations of JFK and MLK. The collection is known as the "Segregated Collection" of CIA documents provided to the HSCA and its contents began to be cleared in the 1990s following the JFK Assassination Records Collection Act of 1992.  The awesome Mary Ferrell Foundation has a database consisting of these records that is full-text searchable and in which is found a number of CIA records further evidencing CIA documentation on Chomsky:

(1) The first record is a CIA list from October 1967 listing Chomsky (twice, one crossed out) in an alphabetical list.

What does this list refer to?

According to the Church Committee report on the CHAOS program (p. 691), the CIA "intensified" its inquiry into "American dissidents" specifically in October 1967 contemporaneous with the October 1967 peace demonstrations at the Pentagon and in connection with the CIA producing a study on "International Connections of the U.S. Peace Groups" in November 1967.  The list appears to document a CIA search for information about the named individuals.  Note at the top it states in type and handwriting "NPII in RID But Listed By [CIS] in VN Protest [Run]"

My working theory is that this means the CIA was running the names against its records.  For Chomsky and the others on this list the result was "NPII in RID" which likely means they found NPII "No Pertinent Indentifiable Information" in the "RID" system (as in the "RID" name check in this unrelated CIA record).  But according to the handwritten note Chomsky and others may have been found in records of "CIS" [either CIA Counterintelligence Staff or CIA Current Interest Staff?] relating to Vietnam Protests.  This record could then potentially mark the beginning of CIA CHAOS/MHCHAOS documentation of Chomsky.

(2) The second record is the one pictured at the beginning of this post, a CIA memorandum dated July 1, 1970 requesting information on "contacts/activities in Hanoi of visitors of MHCHAOS interest" and including Noam Chomsky in a "list of known such visitors."  This record was made about a month after the record released via FOIA to the National Security Counselors (that noted Chomsky's "endorsement" of others traveling to North Vietnam). Note also the cryptonym notation "RYBAT" used with MHCHAOS.  RYBAT according to this helpful index, also from the Mary Ferrell Foundation, apparently indicated "extreme sensitivity."  In a different copy of this same document, ironically cleared by the CIA a year later, all the names, including Chomsky's, are redacted.

(3) The third record is a CIA report dated December 15, 1970 listing Noam Chomsky among "foreign invitees" to a "National Anti-War Conference" scheduled for Sydney, Australia in February 1971.

This document also is also marked with RYBAT and MHCHAOS.

an earlier version redacted these notations:

(4) The fourth record is a CIA memorandum dated Dec. 29, 1970 again listing Chomsky as a "foreign invitee" to the Anti-War Conference in Sydney.  In relation to Chomsky, it also references an additional May 1970 CIA Memorandum.

(5) The fifth record is a CIA memorandum dated April 7, 1971 to the FBI listing Chomsky as having traveled to North Vietnam in April 1970 based on a search of "computerized and other files of the [Central Intelligence] Agency" and providing dates of Chomsky's travel in Laos and North Vietnam. This record illustrates that Chomsky's name and information were, at least at that time, in a retrievable file within CIA.

So what does all this mean?  A couple of quick points.

Obviously these additional references found in a random collection of documents the CIA provided to the HSCA further confirm that the CIA did maintain records on Chomsky.  They also expressly confirm in at least one case (see (4) above) that the CIA had/has at least one more such document and they strongly suggest that the CIA likely had/have many more records on Chomsky.

This leads to one of two conclusions.  Either:

(A) the CIA still has all of these records (and perhaps many more), but its search in response to the FOIA requests did not locate them.  While I guess it is possible some could be in exempt operational files, the publicly available documents raise questions about the CIA's organization of, and its ability to retrieve, its older records (the CIA has repeatedly resisted transferring its records to the custody of the National Archives within the reasonable time periods that other agencies do);


(B) as suggested in John Hudson's Foreign Policy piece piece, the CIA destroyed all of their copies of these records. On this possibility note that this would not necessarily have been easy given that some of these documents indicate that copies were filed in multiple places:

If they were destroyed, it does raise questions about compliance with the Federal Records Act (as the Hudson piece notes), although such questions about the CIA would not be novel (see, e.g., the 1953 Coup in Iran, the CIA tapes, etc.).  In the case of the Chomsky documents and some other CHAOS records about U.S. persons, there could be an additional explanation: they could have been "purged" to "protect privacy." In a section on CHAOS entitled "Maintenance of Files on Americans" (at p. 717), the Church Committee noted, for example, (emphasis mine),
To the extent that information related to domestic activity, its maintenance by the CIA, although perhaps not itself the performance of an internal security function, is a step towards the dangers of a domestic secret police against which the prohibition of the [CIA] charter sought to guard. Specific standards are required for the retention of such material when its direct availability in the CIA's own files is necessary for legitimate foreign intelligence purposes and the Agency has acquired it propertly. In addition, the CIA can be required to purge existing files in conformity with the new standards, and where appropriate, to purge name indexes as well.
This raises again the issue I previously discussed in relation to retention of surveillance information by the NSA.  The drive to prevent retention of, or purge, U.S. person data collected by intelligence agencies in order to "protect privacy" is in some tension with the value of retaining it for accountability purposes.  The Chomsky file is a good illustration. CIA may have purged its materials on Chomsky in compliance with guidelines theoretically designed to protect his privacy, but such an action has the negative effect of creating the impression -- now demonstrably false -- that the CIA never had any.

Friday, October 25, 2013

30th Anniversary of Grenada Invasion & Captured Documents

Michael Leeden has a piece on the Daily Beast entitled "Remembering The Invasion of Grenada 30 Years On" (thanks to Kevin Woods), which highlights some interesting details about both the invasion and the documents seized by U.S. forces there (previous coverage of the Grenada documents is here).  Leeden states:
In the course of the US occupation, the archives of the New Jewel Movement regime—some 35,000 pounds’ worth of documents—were captured, and, after being sprayed for scorpions and spiders, flown to Washington.  The late Herbert Romerstein (as an employee of USIA) and I (as a part-time consultant to the Departments of State and Defense) were asked to organize the documents into an archive.  The work took a bit more than a year, and in November, 1984, we published a selection of documents, and shortly thereafter the whole lot was made publicly available in the National Archives.
The US military was not the only source of documents.  The diary of Prime Minister Maurice Bishop was found by some adventurous journalists from Soldier of Fortune magazine, and they swapped them with us, in exchange for copies of “our” documents.
It’s rare that one gets such a clear documentary picture of a secretive totalitarian regime and, aside from some Spanish-language material, it’s all in English.
The collection of Grenada Documents chosen by Leeden and Romerstein (they also wrote the introduction) is called Grenada Documents: An Overview and Selection the Daily Beast piece links to the Amazon page - the full-text of that publication is, however, available online here courtesy of the HathiTrust Digital Library as well as here.

Thursday, October 24, 2013

CTC Launches Online Militant Imagery Project

The Combating Terrorism Center at West Point has launched an online version of the Militant Imagery Project, which is rather interesting.  The Project has a searchable database of images such as this one:

along with an "Image Analysis" such as:
The dominant element of the image is the red rays, which are significant, as red is the color of fire, blood, passion, impulse and danger. Light rays are often used to illuminate other symbols or text in an image to give them an aura of divinity and/or afterlife. At the center of the rays is a Palestinian flag that bears the shahada (Islamic testimony of faith holding that there is no god but Allah and that Muhammad is his messenger). The flag is held by a group of men, identified as fighters by the fact that their faces are covered by the kafiyya (head scarf). The text is a Qur’anic quote (Q 8:39), written in Indonesian.
It seems that the image, via the posture of the soldiers and the way they are holding the flag, is trying to imitate the famous United States Marine Corps War Memorial (also known as the Iwo Jima Memorial), located in Arlington, Virginia. By doing so, the image evokes notions of bravery and sacrifice on the battlefield and absolute commitment to the mission/struggle. 
The larger purposes of the Project are described by the CTC like this:
The use of propaganda and imagery by terrorist groups has long been an understudied dimension of the broader field of political violence. This project explores the use of imagery and visual themes by militant groups, focusing largely on jihadist media production. Jihadist organizations and individuals inspired by their message are prolific producers and distributors of visual propaganda, and their efforts have expanded exponentially online. However, these images frequently utilize themes which can be inscrutable to those not familiar with the sub-culture. It is our hope that this project will provide academics, practitioners, and students with a basic contextual understanding of the ideas these images convey before they turn to the larger questions of why they are employed, how they work, and what responses they may elicit.
The First Edition of this project was completed in 2006. The second phase (2010-2013) included indexing the project’s initial images, expanding and incorporating new images, and putting all of the images online in a searchable format. Particular attention was given to groups who use images to further financial, material, and ideological support for violence. The imagery dataset provides not just a textual analysis, but also full translation, if texts are part of the image, and a search engine for those interested in specific visual motifs. While by no means an exhaustive list, we feel it provides a sample of the most influential and prominent images and themes. We hope it will serve as a useful tool for practitioners, academics and the general public. Contingent upon funding and interest, we hope to update the dataset to highlight visual themes of additional militant groups in the future.

Wednesday, October 23, 2013

Sen. Schumer Calls on State Department Not to Return Jewish Archives to Iraq

I will have a longer post on the ongoing debate over the fate of the Jewish archives discovered in Iraq in 2003, but quickly this breaking news that Sen. Charles Schumer has today written to Secretary of State John Kerry urging the State Department to reconsider the decision to return the materials to Iraq. The press release is here and the text of the letter is republished below:

Dear Secretary Kerry,
I write today out of deep concern over the decision to return over 2,700 pieces of Iraqi Judaica to Iraq next year. These treasured artifacts belong to the Jewish community and I ask that you do everything in your power to ensure that these artifacts remain available and accessible to Jews worldwide – especially the exiled Iraqi Jewish community.
In 2003, American soldiers found the collection of Iraqi Judaica in a flooded Baghdad Intelligence Center, and the United States has spent over $3 million dollars preserving the collection. The collection, which includes partial Torah parchments and ancient prayer books, had been seized by Saddam Hussein’s troops and belonged to members of the exiled Iraqi Jewish community. This priceless collection of Judaica includes a Hebrew Bible with commentaries from 1568, a Babylonian Talmud from 1793, a Torah scroll fragment from Genesis, a Zohar from 1815 and other sacred ritual objects.
Items in the collection were seized by Saddam Hussein in 1984 from a Baghdad synagogue. Iraqi Jews placed the collection there during their mass exodus in the early 1950s. In the 1940s, outbreaks of anti-Jewish rioting occurred and in 1948, Zionism was made a capital crime. Between 1950-1952, more than 130,000 Jews left Iraq and were not allowed to carry more than one suitcase each. When the United States attempted to assist Iraqi Jews who wished to leave Iraq after the U.S. invasion in 2003, just 34 Jews were found in the entire country – a mere shadow of a 2,500 year old community which at its height numbered over 130,000 people.
These items belong to the people who were forced to leave them behind when the Iraqi government chose to exile them from their homes. Since the exile of Jews from Iraq virtually no Jewish life remains in the country – this treasured collection belongs to the Jewish community and should be made available to them. I strongly urge you to reconsider your decision to return these artifacts to the Iraqi government and urge you to work with Jewish organizations and the Iraqi Jewish community both in the United States and abroad to find a location to store and display these cherished items in a manner which respects their history. 
U.S. Senator Charles E. Schumer

Friday, August 2, 2013

Conflict Records Research Center Funding Crisis

David Palkki the Acting Director of the Conflict Records Research Center (CRRC, excellent new website here) at the National Defense University yesterday posted a quarterly update that relays the unfortunate news of a "complete lack of future funding."  There is currently no funding beyond the end of the current fiscal year and if funding is not received prior to September 30, "the CRRC goes out of business" and "its collections will be frozen in time."

It would be very unfortunate if the CRRC were discontinued as it has been doing great work making a significant body of captured foreign records and English translations available to researchers that would otherwise be nonpublic.  See the overview of its "Saddam Hussein Regime" collection here and its "al-Qaeda and Associated Movements" collection here, both of which include a growing number of records available online.

Palkki notes that the Senate Armed Services Committee's markup of the National Defense Authorization Act for fiscal year 2014 does recommend that the CRRC receive $1 million, but it is unclear when that will become law.

In the event, no funding materializes, Palkki notes that the National Archives and Records Administration (NARA) "will take ownership of all CRRC records" and that
NARA officials have informed CRRC staff that NARA would not release CRRC records for 25 years, with the exception of a trickle of records in response to Freedom of Information Act Requests. NARA has also announced that it would release only the CRRC translations, not copies of the Arabic originals, and would redact most of the names in the translations.
Here's hoping that the funding comes through and that the CRRC will be able to continue its important work.

Tuesday, July 30, 2013

It was Saddam's Sword

Yesterday the Department of Homeland Security (DHS) issued a press release stating that it had returned a sword "looted in 2003 from Saddam Hussein's personal office in Baghdad" to the government of Iraq at "a private ceremony" and the residence of the Iraqi Ambassador to the United States in D.C.  This, in fact, is the very same Saddam sword I had discussed in a post last year called "Actually, That Might be Saddam's Sword After All" which was a response to Spencer Ackerman's piece "Sorry, That's Not Really Saddam's Sword You're Buying."

Return of Saddam Sword to Iraq, July 2013
As background, apparently after hearing that it had been auctioned in early 2012 in New Hampshire (the auction house description has been taken down, but thanks to the Internet Archive the text is here), the U.S. Immigration and Customs Enforcement's Homeland Security Investigations initiated an investigation and "seized the sword as a possible Iraqi cultural artifact."

The investigation concluded based on an examination -- involving the State Department and the Department of Defense -- of the "regulations surrounding the importation of war trophies from Iraq" that "this ornate ceremonial sword cannot be considered a modern battlefield weapon and is therefore not eligible to be exported as a war trophy." It also, rather importantly, concluded that the "historic sword" constituted Iraqi cultural property under Office of Foreign Assets Control regulations.

I will have more to say on the legal issues soon, but for now suffice it to say that the DHS action raises some problems and questions, not the least of which is, if DHS is treating that Saddam sword as "looted" cultural property that needs to be returned to Iraq in order to "ensure that current and future generations aren't robbed of their nation's history," what about this other Saddam sword on display at the National Infantry Museum in Columbus, GA?

National Infantry Museum, "Exhibit: 'Saddam Hussein Sword & Rifle"
A request to the National Infantry Museum for verification that this sword is still on display went unanswered.  UPDATE: The National Infantry Museum has confirmed that the exhibit containing Saddam's sword remains just as it is pictured above and that there are no plans to change it in the foreseeable future.

Wednesday, July 24, 2013

More Misleading Information from ODNI on NSA Telephone Metadata Collection

In its ongoing publicity offensive, the administration has put forward more detailed public arguments to justify the NSA obtaining and storing vast quantities of telephone metadata of U.S. persons in purported reliance on § 215, the "business records" provision, of the Patriot Act. A central pillar of the NSA/DOJ/ODNI argument is that government storage of this metadata is necessary because the telecommunications companies otherwise would not retain it. This argument is, at best, disingenuous and misleading.

In one of the most detailed defenses of the telephone metadata program, for example, ODNI General Counsel Robert Litt asserted last week in a prepared speech (see text or video clip) that "telephone companies have no legal obligation to keep this kind of information" ("information" he defines as "the number calling, the number being called, and the date, time and duration of the call") and that telephone companies destroy this data "after a period of time determined solely by their own business purposes" (emphasis added).  This is demonstrably inaccurate.  See, for example, the "legal obligation" found at 47 C.F.R. § 42.6, a regulation which requires that telephone companies:
retain for a period of 18 months such records as are necessary to provide the following billing information about telephone toll calls: the name, address, and telephone number of the caller, telephone number called, date, time and length of the call.  

Not only does this federal regulation provide a legal retention obligation, but it is also unrelated to the "business purposes" of the telephone companies and in fact was promulgated by the FCC at the specific request of the DOJ in order to aid in terrorism investigations.  The retention period had previously been six months, but the DOJ petitioned the FCC to extend it precisely because such telephone records "are often essential to the successful investigation and prosecution of today's sophisticated criminal conspiracies relating, for example, to terrorism . . . and espionage." The FCC therefore extended the legal retention period for as long as the DOJ said was necessary.

DOJ/NSA/ODNI may believe that this regulation, which became effective in 1986, is outdated or no longer adequate, but pretending that it (and many similar state regulations) doesn't exist or that those agencies couldn't have done more to update or expand this regulation to suit the Executive branch's current "needs" undermines their argument.

In fact, in early 2006, the FCC itself proactively solicited comments on the 18-month retention regulation and the DOJ submitted these comments which -- in light of what we know now and the government's current arguments -- is rather remarkable.

First, the DOJ's comments are dated April 28, 2006, which was reportedly just a month before the DOJ/FBI secured the first Foreign Intelligence Surveillance Court order for bulk collection of U.S. telephone metadata for the NSA under the "business records" provision.

Second, while the DOJ noted problems with the regulation (including that "some" phone companies read it narrowly and argued it would not apply if certain billing methods were used) the DOJ nevertheless stressed the regulation's continuing importance for counterterrorism, stating that telephone records were a "critical tool in the fight against global terrorism" that had "enabled . . . national security agencies to prevent terrorist acts and acts of espionage." Moreover, the DOJ stressed its role in setting the legal retention period at 18 months.

Third, the DOJ in fact suggested -- in a footnote, near the end -- that the FCC "should explore" whether "the existing 18-month rule should be extended," yet surprisingly the DOJ did not forcefully argue for such an extension.  You can decide for yourself, but the DOJ's comments don't read to me like they were written by the same DOJ that was simultaneously arguing to a secret court that the need to retain the telephone data longer than 18 months was so crucial and exigent that it necessitated the extraordinary remedy of ordering telecommunications companies to provide all telephone metadata in the United States to the NSA in reliance on a breathtakingly broad reading of "relevant" in a statutory text.

And of course, members of Congress have questioned whether the extended retention is really as important as the NSA claims, as Senators Udall and Wyden have stated, "the NSA still has not provided us with any examples of instances where it relied on its bulk collection authority to review records that the relevant phone company no longer possessed."

Lastly, the FCC's regulatory power over such records highlights sharply conflicting views within the government about the nature and value of such data that have been largely ignored.  DOJ/NSA/ODNI have gone to great lengths to downplay the importance of "telephony metadata" -- "it's just metadata, it's not content, it's like the information on the front of an envelope, it's not Constitutionally protected, there's no expectation of privacy," they say. Yet, Congress and the FCC have been working for years to protect the "confidentiality" of such information under the name "Customer Proprietary Network Information" (CPNI). The statutory definition is at 47 U.S.C. § 222(h), but in the plain language of the FCC: "Practically speaking, CPNI includes information such as the phone numbers called by a consumer; the frequency, duration, and timing of such calls; and any services purchased by the consumer, such as call waiting. CPNI therefore includes some highly-sensitive personal information" (emphasis added).

The issue of bulk telephone metadata collection is undoubtedly complex and difficult to simplify, but the DOJ/NSA/ODNI efforts to "explain" and justify the program and to lay out the "facts" (which repeatedly seem to be half-truths) is not creating trust, it's undermining it.

Sunday, July 14, 2013

Abbottabad Commission Report Confirms Seized Bin Laden Documents in Pakistan

The recent leak of the Abbottabad Commission report (available here), provides a brief confirmation that Pakistan is in custody of additional documents from the Bin Laden compound left behind by U.S. forces following the May 2011 raid.  Paragraph 26 of the leaked report, for example, notes (emphasis added):
In addition, the Commission reviewed documents submitted by different government agencies, as well as those recovered from the OBL Compound in Abbottabad. . . . Some of the very extensive evidence collected from the OBL Compound was examined and several technical discussions were held with experts. 
Earlier reports (discussed here) had indicated that as many as 187,000 documents were recovered by the Pakistani government from the Abbottabad compound that reportedly included Bin Laden "diaries" and correspondence.

Meanwhile, no additional documents seized from the compound by U.S. forces have been released beyond the original 17 documents made public last year, although there have been some indications that more are being considered for release as well as additional calls on the administration to release them.

Thursday, July 11, 2013

Criminal Document Disclosures & Foreign Asylum: Is Edward Snowden Christoph Meili?

As the saga of whether Edward Snowden will accept an offer of asylum in Latin America continues, his situation allows some comparison to the fascinating story of Michel Christopher Meili.

Who's Meili?

Is there an EFF sticker on that volume?
Photo by Gisela Blau
In brief, Meili was a 29-year old Swiss citizen and an employee of a private company with significant connections to his government - the Union Bank of Switzerland. In 1997 Meili was a security guard, who happened upon 2 carts full of Holocaust-era banking documents related to Jewish clients of UBS that were slated for destruction. Inspired by "Schindler's List," Meili removed several volumes of the documents from his employer's possession. Instead of going directly to the authorities, he instead disclosed the documents to outside sources.

As a result, not only did Meili lose his job, but he was also under investigation by Swiss authorities for violating Swiss law.  Moreover, according to Meili's testimony in a U.S. Senate hearing (available here), after Swiss police took possession of the documents, they told Meili that the Swiss government was treating the documents as "classified," despite the fact that they were UBS documents, and that they "would never be seen by people 'outside Switzerland.'"

Finally, while Meili believed he was exposing an act of destruction that was, or should have been, illegal, the Swiss police told him that they had concluded that UBS had done nothing wrong.

Meili testified
One of the things that I have learned in these last few months is that there are certain powers in Switzerland that do not want to see the Swiss Banks and our government exposed for what they did during the Holocaust and that they will do anything - including destroying documents, restricting and controlling Police investigations, hiding/burying evidence and lying publicly.
The reason why Meili gave testimony to the U.S. Congress was that while he was temporarily in the United States, Sen. Alfonse D'Amato organized a Senate hearing about, and including, Meili.  D'Amato expressly acknowledged that Meili "today is under investigation for violating Swiss bank secrecy laws for disclosing the records" and that he had also received threats against him in Switzerland by individuals opposed to his actions (no doubt in the same vein as disturbing statements about what should happen to Snowden in the comments section of many articles about him).

The Senate hearing was designed to assess what actions the United States could take to protect Meili.  Congress determined that although Meili did "not meet the necessary criteria for permanent residency under any existing categories" under U.S. law, that Meili nevertheless deserved sanctuary in the United States.  Therefore Congress passed a special law, Private Law 105-1 that granted Meili, his wife, and his children permanent residency in the United States "[n]otwithstanding any other provision of law."

The law specifically cites the fact that Meili was "interrogated by the local Swiss authorities who tried to intimidate him by threatening prosecution for his heroic actions."  President Clinton signed the law on July 29, 1997.  According to a spokesperson, President Clinton, after reviewing the case, decided that it was "appropriate" that Meili be given permanent residence in the United States.

The actions of the United States in the Meili affair could therefore provide a model for Venezuela, Nicaragua, or Bolivia in granting Snowden asylum. On the issue of whether Snowden would technically qualify as a refugee under international law, for example, see "Snowden's asylum case" by Jaya Ramji-Nogales here. Regardless of the merits of Snowden's case under current international or domestic law, however, one of those countries that have offered him asylum could simply follow the U.S. example and make Snowden's asylum a special case.

As to the more substantive similarities between the actions of Snowden and Meili, to be absolutely clear, I am not drawing any comparison between the NSA surveillance programs and the Holocaust.  I am comparing, however, the decision to grant "asylum" in some form to a foreign citizen who was under active investigation for violating the laws of his country and violated his obligations to his employer in order (1) to disclose ongoing NSA surveillance programs versus (2) to disclose historical banking records that may have been relevant to individual ownership claims for property plundered by the Nazis a half a century earlier. That comparison can cut in many different ways depending upon one's perspective (e.g., how one weighs the severity of the crime v. the importance of the disclosure) and the two cases are distinguishable in many ways (e.g., despite the investigation, Switzerland had not cancelled Meili's passport or sought extradition).

The point is that comparing Snowden with Meili is another illustration that the Snowden affair is clearly not as simple as upholding the "rule of law" as President Obama asserted.  The most striking example of the contrast is in the statements of Sen. Charles Grassley who has stated about Snowden that "I believe that whatever the law requires, just like anybody that breaks the law, [Snowden] needs to be prosecuted" and that "I suppose it gets down to - did he break a law? - I think it's pretty obvious he did."  The very same Sen. Grassley, during the 1997 Senate hearing on Christoph Meili, gave this rather remarkable statement which deserves reprinting:
The situation we have here with Mr. Meili, albeit everything that he has brought to our attention has worldwide implications, but a person like him acted out of bravery, or maybe the bravery comes after he has acted because he has had to withstand the mental torture of what has gone on since then. But it reminds me of a lot of things that happen in our own Government, and I realize his is a private sector situation, but I like to think that we keep our Federal Government honest when we have people in our Government who, when something is wrong, will be willing to come forward and say what is wrong.
We speak of these people in our Government as whistleblowers. Maybe, originally, that was to denigrate them, but as far as I am concerned the word "whistleblower" is a description of somebody who wants to seek the truth, who wants to make sure that all of the facts and circumstances are known so that a wrong can be corrected.
*   *   *   * 
Well there is a lesson to all of us in the Congress of the United States when we have an example like this before us that we should not be denegrating people who seek the truth. We should be helping them be protected, we should help them get their story out, and we should help them make sure that they are not harmed economically or physically, or even professionally, because of seeking the truth.
Now, I know in some instances not every whistleblower has a credible story, so you do have to be circumspect to the extent to which we investigate every complaint that comes to our attention. But it seems to me that we ought to be honoring people who seek the truth, as Mr. Meili has sought the truth, and to expose wrongdoing. That is my interest in this. Besides helping Mr. Meili, it is my interest in also making sure that we are very consistent in the Congress of the United States in encouraging whistleblowers to come forth with information when something is wrong, because we do not have the time in the Congress to know where every skeleton is buried in every closet.

Thursday, June 20, 2013

Judge Lamberth calls Russia "scofflaw" and "outlaw" over Jewish Archives

The AP reports that at today's hearing in the Chabad v. Russian Federation case (for previous coverage see here, here, and here) Judge Lamberth called Russia a "scofflaw" and an "outlaw" for "refusing his order to hand over a Jewish group's historical books and documents."

AP further notes that "Russia has refused to recognize the authority of the U.S. court" that the it has "transferred some of the documents to the Jewish Museum in Moscow" and that last week "Russian President Vladimir Putin visited the museum and called the case 'closed.'" We'll see.

Friday, June 7, 2013

No Progress in Negotiations with Russia over Jewish Archives

The plaintiffs in Chabad v. Russian Federation filed a notice to the court yesterday indicating that despite the efforts of the State Department in "government-to-government" negotiations with the Russian Government, "with which Chabad has cooperated," none of the materials from the historical Jewish library and archives that are the subject of the litigation have been transferred to the United States. 

In January, as reported here, Judge Royce Lamberth issued $50,000 per day contempt sanctions against Russia for failing to comply with the Court's 2010 Order to transfer the collections to the Plaintiff. 

Given that the subsequent efforts to obtain the collections have failed Chabad noted in yesterday's filing that it "hereby reserves its right to pursue and enforce the remedies that the Court has granted.  A status conference is set for later this month.

Thursday, June 6, 2013

Is the NSA Destroying Records Related to its Collection of Phone Data?

By now everyone will have seen Glenn Greenwald's piece "NSA collecting phone records of millions of Verizon customers daily", the "purported" Foreign Intelligence Surveillance Act court order on which the article is based, and the Obama Administration's talking points in response.

After the shock over the FISA order subsides, the big question becomes: "What has the NSA been doing with this data and any other material it may be obtaining?"

The troubling fact is that the NSA is very likely not retaining all of the information necessary to verify the answers it will give to such questions.  Where's my evidence?

NSA records schedule N1-457-08-001, approved in 2009, governs the fate of "SIGINT Operational Data" such as "intercepted communications" including "voice, data or video and related records" as well as "SIGINT Operational Analysis Information and Records" and other relevant records. I've posted it here (it is also available on the National Archives website here, although intelligence-related schedules posted there have been known to suddenly become "temporarily unavailable").

What does the NSA SIGINT records schedule say?

First, all the "Operational Data" (Item 1) itself is considered "temporary" and the NSA is empowered to destroy such records as soon as it is no longer of "intelligence interest or potentially useful" in NSA's "analytic research."  Making the retention of this data subject only to NSA's interests and uses is remarkable in that it completely ignores the value of these records in providing, among other things, accountability and evidence of the extent of NSA operations.  How this is consistent with, for example, the federal records laws, which require that agencies preserve records "necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency's activities" is less than clear. 44 U.S.C. § 3101 (emphasis added).  Some of this concern is perhaps alleviated by the breadth of the FISA order given that it provides independent evidence that can confirm whether the NSA collected data of a given person (if you were using a relevant Verizon system during a relevant time period, the answer appears to be yes), but such data (and other collected material we may know nothing about) unquestionably has significant value beyond this.

Similarly, "SIGINT Collection Methods" (Item 5) which includes records relating to "the acquisition, processing, analysis, reporting" of "intercepted target communications" and "SIGINT Tasking/Targeting Analysis" (Item 7) which includes "information/data that document the exchange of SIGINT material" and "documentation reflecting the acquisition, receipt, source control, distribution/location" of "SIGINT material" are also considered "temporary" records subject to destruction after 5 years.  This means that decades from now, when historians are finally granted access to freshly declassified NSA records in order to study these events, any records the NSA places in these rather vague and pliable categories will no longer exist.  Even if a Congressional committee were to begin a new investigation today, records in such categories could already be gone prior to a moving 5-year wall of destruction that currently sits somewhere around 2008.

Second, the NSA records schedule provides that several other categories of SIGINT records are "permanent" including "SIGINT Product," which are serialized intelligence reports (Item 2) and "SIGINT Operational Analysis Information and Records" (Item 3), which includes "tasking messages," "dossiers, listings," and "evaluation plans." However, the retention of these "permanent" records are also, like the "temporary" ones above, subject to a significant "EXCEPTION" which notes:
Any data that contains, or could contain, U.S. person information has legal ramifications. There are strict timelines for retention of this data and it must be handled in accordance with USSID SP0018, including Annex A, Appendix 1 [try here]; DoD 5240.1-R [try here]; and any special minimization procedures that govern the retention of that data. For data collected pursuant to the Foreign Intelligence Surveillance Act (FISA) or Protect America Act (PAA), retention may only be done in accordance with the minimization procedures for that data.
Thus even though the value of these records was appraised to be important enough to require permanent retention (as in, you can never destroy it), the most Constitutionally-significant records among them involving "U.S. person information" will nevertheless be destroyed based on limited retention periods.

This highlights a fascinating, distressing conflict between the goal of protecting the privacy rights of individuals by using "minimization procedures" that limit how long the NSA can retain U.S. person data, on the one hand, and the value of protecting our privacy rights by preserving such records to document the extent of NSA domestic operations and to provide long-term accountability (even if just historical accountability), on the other.  Minimization procedures have existed for years and have been blessed by the FISA court and apparently the National Archives. In my view, however, the idea that the NSA could surreptitiously collect, analyze, and utilize data about my communications and then erase its footprints by destroying the records of having done so in the name of protecting my rights seems like a poor form of protection.  The destruction of such documentation could remove the evidence necessary to verify the breadth of NSA collection and how they actually used the data and thereby makes NSA assurances that either data was never collected or was never used for nefarious purposes ultimately a matter of trust (or conspiracy). I personally would prefer that the NSA be required to retain more of these records in order to provide verifiable accountability.

A similar conflict has arisen with some frequency in determining what to do with the records of state security services following the fall of repressive regimes (drawing the comparison only by analogy).  Nations have sometimes decided to destroy such records based on the conclusion that they were inappropriately collected and, as with minimization retention limits, to protect privacy and to prevent their use for any abusive purposes in the future.  Just as often, however, nations have decided to preserve such records for accountability and as evidence and history.  See, e.g., Antonio Gonzalez Quintana, Archival Policies in the Protection of Human Rights (pdf see esp. 51-55).  I don't think these latter considerations have been sufficiently considered in current debates over surveillance, perhaps today would be a good day to start.

[Updated to correct typo]