Thursday, November 13, 2014

Congress Just Gave the Archivist the Power to Protect the Panetta Review from the CIA

With a voice vote in the House agreeing to Senate amendments, Congress has now passed, and is sending to the President, H.R. 1233, the Presidential and Federal Records Act Amendments of 2014, that finally, definitively gives authority to the Archivist of the United States to make determinations about what is, and is not, a "record" that are binding on federal agencies.  I'll explain in a second why this section of the bill is important, but here it is in all its glory - frame it and put it on the wall:

Why should you care?  If you care about FOIA, accountability, or the historical record, this authority allows the Archivist to close up - or at least tighten up considerably - the horrible loophole in the law that has been manipulated in a long line of cases of government document destruction or alienation -- from the State Department's indefensible decision to allow Henry Kissinger to remove (and treat as his personal property) the transcripts of his official telephone calls as the Secretary of State all the way up to the CIA's destruction of the interrogation tapes. This is the same loophole that could legitimately endanger the long-term survival of the CIA's "Panetta Review" and necessitated the actions of the SSCI staff in exfiltrating a copy from the CIA to a Senate vault (as I described at length here - it is not a conspiracy theory), which is further complicated now by fears that new leadership at the SSCI will return the Panetta Review to the exclusive custody of the CIA.

How does the loophole work?

The legal definition of "record" is - and will continue to be (the new bill tweaks it slightly) - broad and expansive and includes all documentary material made or received by an agency that is preserved or "appropriate for preservation."  The "appropriate for preservation" language is the Achilles heel, because up until now the authority for making that determination has been left to the agencies (incorrectly in my view, but that's another story).  Thus agencies, which as the courts have noted, have a "built-in incentive to dispose of records relating to 'mistakes,'" can simply decide that material such as videotapes depicting the torture of detainees are nevertheless not "appropriate for preservation," ergo they are not records, ergo the federal records laws do not apply to them, ergo the agency can destroy them at its discretion.

With the Kissinger transcripts the debate over who had the authority to decide what documents were "appropriate for preservation" resulted in this 1981 OLC opinion  that found that the Archivist [the successor to the GSA in the opinion] "is not authorized to promulgate standards or guidelines that have a binding effect on the agency's determination as to whether a document constitutes a 'record.'"  Once the President makes H.R. 1233 a law, the OLC needs to revisit and withdraw that opinion.

NARA itself also bears some blame.  When it later promulgated regulations in the early 1990s that were designed to clarify the definition of "record" its proposed regulation had a forceful, if admittedly circular, statement that "appropriate for preservation" meant "documentary materials made or received that should be filed, stored, or otherwise systematically maintained by an agency because of the evidence of agency activities," 55 Fed. Reg. 741 (proposed Jan. 9, 1990) (emphasis added).  It gave away the store, however, in the final rule which became "documentary materials made or received which, in the judgment of the agency, should be filed, stored . . ." 36 C.F.R. § 1222.10(b)(6) (emphasis added).  Again, once the President makes H.R. 1233 a law, NARA needs to revisit this regulation.

To be clear, the Archivist neither has the funding, nor the personnel, nor the appetite to look over the shoulder of every federal employee to micromanage whether each email is, or is not, a record, but this bill, once signed by the President, will give the Archivist an important power that should not be left to rot on the vine.

I propose that the Archivist's first use of this power should be to send a letter to the CIA stating that the Archivist has made a binding determination that the CIA documents collectively referred to as the "Panetta Review" are permanent federal records that can never be destroyed.

Wednesday, November 5, 2014

Haditha Massacre: After 9 Years Still Unanswered Questions About Destroyed Documents

Based on documents recently obtained via FOIA, there are still two open inquiries by the National Archives and Records Administration (NARA) into the possible unlawful destruction or removal of records related to the killings of 24 Iraqis in Haditha in November 2005 - 9 years ago this month. Despite a letter from the Marine Corps in mid-2013 that purported to finally respond to the inquiries -- which, as I'll explain below, is completely inadequate -- NARA has not closed out the inquiries, nor should it.

The first unauthorized destruction inquiry began in August 2006 following a New York Times article entitled "Marines May Have Excised Evidence on 24 Iraqi Deaths" which stated that an investigation by Maj. Gen Eldon Bargewell had uncovered, among other things, possible tampering with a unit log book "which was meant to be a daily record of major incidents the marines' company encountered" but which "had all the pages missing for Nov. 19, the day of the killings, and that those portions had not been found."  The initial NARA inquiry letter is here.  (As an aside, the fact that NARA had to learn about this from a news article is arguably itself evidence that the Department of the Navy/Marine Corps "did not follow the law").

The second inquiry began in December 2011 (NARA letter here) following another stunning New York Times article entitled "Junkyard Gives Up Secret Accounts of Massacre in Iraq" that was based on 400 pages of classified interviews related to an investigation of the Haditha killings found in an Iraqi junkyard where they were being burned by local Iraqis.

In both cases the Department of the Navy initially responded to NARA by stating that a substantive response would have to yield to ongoing Naval Criminal Investigative Service (NCIS) investigations (2006 letter and 2011 letter).  Yet released emails (see, e.g., here) also show that it was thereafter left to NARA to attempt repeatedly to follow up on its inquiries.   The Navy and Marine Corps appeared both disorganized and dismissive of the NARA inquiries.  In one 2012 email, for example, the Navy asked an inquiring NARA representative, "Who is lighting the fire on you at NARA?"

Finally, last year a May 30, 2013 memorandum from the Commandant of the Marine Corps (signed by the Director of Marine Corp Staff) purported to address, at last, both NARA inquiries. The memo simply stated, however, that "regarding alleged destruction of records, a thorough and extensive review of available documentation and previous investigations was conducted.  As a result of this review, there were no findings which revealed destruction or unauthorized removal of records" (emphasis mine).

A superficial reading of this carefully-worded paragraph might give the impression that the Navy/Marine Corps actually investigated the questions posed by NARA.  Instead, it appears -- as the letter in fact states -- that they simply reviewed the "documentation and previous investigations" into the Haditha matter generally and there were "no [formal] findings" of "destruction or unauthorized removal of records."  This is supported by an email exchange that preceded the formal response in which NARA tried to clarify whether the Navy had actually completed an "investigation into the alleged destruction of Haditha records" and the Navy representative responded that it was the "investigation into Haditha in general."  This is wholly inadequate for several reasons.

First, the lack of a specific relevant "finding" in one of the various criminal investigations about the Haditha killings is irrelevant unless one of them was tasked specifically with looking at, and reporting back on, whether there was an unauthorized destruction or removal of federal records, regardless of whether it justified criminal charges.

Second, to the extent the records of those investigations are public, they do appear on their face to show records destruction.  The 2006 New York Times article, for example, indicated that the destruction of evidence related to the log book arose in the context of the investigation by Gen. Bargewell.  The text of the resulting report was later made public here and it does include sections indicating possible destruction of records relating to a log book, including this one:

A more detailed accounting of these facts would be available in the interviews to which the footnotes above cite as well as other materials cited in the report, but they are not publicly available (so far as I am aware).  Additional evidence on this point also comes in the form of a subsequent Article 32 hearing in 2007 for CPT Randy Stone, in which 1SG Albert Espinosa testified that the "log books from Nov. 19 were incomplete or missing." In the case of the 2011 NARA inquiry, the factual predicate is even more easily verified: the New York Times has copies of classified federal records they obtained from an Iraqi junkyard!

To be clear, it would be possible for the Navy/Marine Corps to have investigated these claims specifically and to have concluded that there was insufficient factual support to conclude that pages in the log book were destroyed at all or to conclude that the destruction of the records in the Iraqi junkyard -- while undertaken in an incompetent manner that created a serious security incident -- was not unauthorized records destruction because they were disposable reference copies or otherwise covered by an approved records schedule.  But there is no indication that this is what occurred, despite years of delay.

The larger point is that in cases such as this, where publicly available evidence clearly supports at least a prima facie case of unauthorized destruction, NARA ought to require agencies to explain what investigative steps were undertaken and describe its analysis in determining whether or not the destruction was unauthorized, rather than an inexplicable, conclusory response of "no unauthorized destruction."  Part of the value of these NARA inquiries is to identify agency misinterpretations and misapplications of the federal records laws in order to remedy them to prevent more widespread destruction.

To NARA's credit, despite the May 2013 letter from the Marine Corps, NARA continued to list both inquiries as still open as of the end of fiscal year 2013 and, based on the results of recent FOIA requests, nothing has changed.

Finally, while the significance of these NARA inquiries extends far beyond the question of missing pages in a unit log book or some binders in a junkyard (as mentioned above), those missing pages are more than important enough.  If the IRS undertook Herculean efforts (see pp. 5-7 in the attachment) to try to resurrect probably meaningless emails of Lois Lerner, surely we can expect the United States Marine Corps to provide a meaningful response to NARA regarding records relevant to a horrific event in which 24 human beings were killed and for which Marines were charged with crimes.  Even though the criminal investigations may be finished, for the historical accounting for Haditha - which is already mentioned in the same breath as My Lai - every record counts.

Monday, October 27, 2014

CIA Cannot Be Trusted to Destroy "Non-Senior Email"

On September 17, 2014, the National Archives and Records Administration (NARA) published in the Federal Register a Notice of a new proposed records schedule (N1-263-14-1) from the Central Intelligence Agency (CIA) that would make certain "Non-Senior Email" temporary and ultimately disposable.

The "full" proposed schedule - which effectively is only one-page long - is here and NARA's appraisal of the proposed schedule here.  I have submitted a comment to NARA on the proposed schedule that argues that the Archivist of the United States should not approve this schedule.  The main thrust of my comment is (1) the proposed schedule is dangerously ambiguous, (2) it rests on suspect assumptions, and (3) CIA simply cannot be trusted with the extremely broad discretion to destroy records that this ambiguous schedule provides - for reasons I have previously documented here, here, here, here, here, here, and here.

The full text of my comment is posted here.

Earlier coverage of the proposed schedule by Steven Aftergood at Secrecy News is here.

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 . . .

Tuesday, March 4, 2014

The Yanukovych Letter: Is Russia in Ukraine Really Becoming the U.S. in Panama?

Yesterday at the U.N. Security Council the Russian Federation opened a new front in the debate over international legal analysis of Russian forces in Ukraine by brandishing a letter purportedly from ousted President Viktor Yanukovych to Russian President Vladimir Putin asking for Russian forces to enter Ukraine "to establish legitimacy, peace, law and order, stability and defending the people of Ukraine."
Putin picked up the issue in his own comments this morning stating "As you know, the legitimate president, Yanukovych, requested Russia to use military force to defend the lives and health of Ukrainians."

The Yanukovych letter and Putin's assertion places the issue of consent under international law front and center. Ashley Deeks at Lawfare had earlier found it puzzling that Russia had not "claimed that it has the consent of ousted Ukrainian President Yanukovych to introduce troops" noting that there "is at least a colorable argument that Yanukovych remains the head of the Ukrainian state."  Russia perhaps found Ashley's thoughts quite persuasive.

While commentary over the Ukraine controversy is full of off-hand comparisons to previous U.S. invasions in arguing that the U.S. position is hypocritical, the new letter and the consent argument invite a new, serious, and very legitimate comparison to the U.S. intervention in Panama in 1989.  Others -- including the Russian representative at the U.N. Security Council yesterday -- have pointed to the comparable U.S. justification for Panamanian intervention based on an asserted need to protect U.S. citizens and U.S. military bases in Panama, but a more important, and even closer, comparison is the argument of consent.

Consent was a central U.S. justification for intervention in Panama that was just as, if not more, thin than the paper on which Yanukovych's invitation to Putin is written. The U.S. position was that it had never recognized the Noriega regime as the legitimate government in Panama and, just before Operation Just Cause began, the U.S. government purported to swear into office -- on a U.S. military base -- Guillermo Endara as the President of Panama, who then invited U.S. forces into his country.  As the U.S. Army's Law of War Manual later described "concurrent with the invasion, Mr. Endara was sworn in as President of Panama in the U.S. Southern Command Headquarters one hour before the invasion occurred; forces were already airborne en route" (see p.82).

The U.S. therefore relied upon consent provided by a "President" who had no government and had no command and control over any military or police forces in his country, not unlike Yanukovych while drafting his letter to Putin.  The U.S. justified recognizing Endara on the basis that he had won an election in Panama months earlier that had been nullified by Noriega, but Putin has an equally colorable argument that Yanukovych remains the legitimate leader of Ukraine despite his forced removal.

I note that over at Opinio Juris, Chris Borgen and reader "Non liquet" have been discussing the Yanukovych letter as a "legal fig leaf."  I agree, but also believe that the U.S. consent argument in Panama was just as, if not more, indecently revealing.  The consent argument was so central to the U.S. intervention in Panama, in fact, that it fundamentally altered the U.S. view of the application of the law of armed conflict in finding that Panama was not an Article 2 international armed conflict.  The always-definitive W. Hays Parks opined on the issue (excerpted at p. 242, the U.S. Army unfortunately no longer has a copy of the actual memorandum, by the way. If anyone happens to have one, I'd be grateful for a copy):

Borgen's post over at Opinio Juris argues that for "about 40 years" the U.S. has "moved away from focusing on the recognition of governments" (citing the Restatement (Third) of Foreign Relations Law) and concludes by stating that he would be surprised if the Yanukovich letter would be "persuasive of the legality" of Russian intervention, but that Russia "seems to be about fig leaves, not judges' robes."  The Panama precedent is also instructive on these two points. First, District Judge William Hoeveler subsequently rejected the U.S. position, holding that the U.S. intervention in Panama was "clearly an 'armed conflict' within the meaning of Article 2" of the Geneva Conventions and that Noriega was properly a prisoner-of-war under the Geneva Conventions.  U.S. v. Noriega, 808 F. Supp. 791, 795 (S.D. Fla. 1992).  Second, if the U.S. has been moving away from a focus on "recognition," as Borgen states, it certainly didn't show in this 2002 DOJ OLC Memo wherein the OLC reasserted:
The United States' intervention in Panama on December 20, 1989 came at the request and invitation of Panama's legitimately elected President, Guillermo Endara. The United States had never recognized General Manuel Noriega, the commander of the Panamanian Defense Force, as Panama's legitimate ruler. Thus, is the view of the executive branch, the conflict was between the Government of Panama assisted by the United States on the one side and insurgent forces loyal to General Noriega on the other side. It was not an international armed conflict between the United States and Panama, another State. Accordingly it was not, in the executive's judgment, an international armed conflict governed by common article 2 of the Geneva Conventions. (footnotes omitted).
The DOJ OLC also repudiated Judge Hoeveler's holding to the contrary "to the extent that the holding assumed that the courts are free to determine whether a conflict is between the United States and another 'State' regardless of the President's view whether the other party is a 'State' or not" (Hoeveler did not assume that, by the way, but that's another story) and the OLC alleged that Hoeveler "impermissibly usurped the recognition power, a constitutional authority reserved to the President."

Also interesting is that in the Panama intervention, the U.S. also relied, in part, on the fact that the Noriega regime had purportedly "declared war" on the U.S. This is much like if Russia would now rely upon the new Ukrainian government's recent public statements of "war" with Russia.  "But," I hear someone protest, "the Ukrainian government's statements were only after Russia had violated Ukrainian sovereignty."  The same was true with Panama in 1989.  Noriega had complained for months to the U.N. of the "movement of armed units of the United States army outside their defence sites, violation of its airspace, infiltration by United States intelligence units" and the arrival of a U.S. "offensive military team that had never before been part of the forces used to defend the Panama Canal" all of which were prior to the Panamanian "declaration of war" (and the election of Endara).

This helpful U.N. recap of the U.N. Security Council debate over U.S. intervention in Panama mirrors quite closely what we have watched the past few days in the same Council with just the names changed.  The U.S.S.R. and others asserted that the U.S. was in clear violation of international law.  The U.S. retorted that it had the "approval" of "the democratically elected leaders of Panama" and was protecting U.S. citizens.  Because of the veto power, nothing came out of the Security Council, but the U.N. General Assembly later approved this Resolution "deplor[ing] the intervention in Panama by the armed forces of the United States of America, which constitutes a flagrant violation of international law and of the independence, sovereignty and territorial integrity of States." Read the resolution and replace "United States" with "Russia" and "Panama" with "Ukraine."

There are, of course, arguments that could arguably distinguish Panama from Ukraine that I will leave others to identify. I think in both cases, Eric Posner's succinct two-point analysis on Ukraine is on point:  "1. Russia's military intervention in Ukraine violates international law" (as the U.N. General Assembly found the U.S. intervention in Panama did) and "2. No one is going to do anything about it." (As no one did with Panama in 1989).

For more on the legal analysis of U.S. operations in Panama, particularly in the context of how the nature of the conflict may affect the legal status of Panamanian government records seized by U.S. forces (which remain to this day in U.S. military custody), see my recent article "The Lost Archives of Noriega" (with apologies for the self-promotion).

UPDATED to correct typo.

Monday, March 3, 2014

Chabad Responds to U.S. Government's Opposition to $14.75 Million Judgment Against Russia Over Jewish Archives

A quick post noting that late last week in the Chabad v. Russian Federation case, Chabad filed its response (here) to the U.S. government's Statement of Interest that opposed Chabad's motion for entry of interim judgment for Russia's failure to transfer custody of the Jewish Library and Archive, known as the Schneerson Collection (background on the case is here and here).

Not surprisingly, Chabad simply notes that the arguments of the U.S. government -- that the Foreign Sovereign Immunity Act does not allow the type of sanctions Chabad is seeking and that an entry of interim judgment would implicate U.S. foreign policy interests -- are the same arguments the U.S. government asserted earlier in the litigation, "arguments that this Court has already considered, addressed, and rejected." Chabad also urges the Court to deny the U.S. government's request that, if the Court enters the interim judgment, it should also require Chabad to provide the Court and the U.S. government with "advance notice of any efforts to take any additional steps to enforce the Court's interim judgment" on the basis that the Foreign Sovereign Immunities Act already has a notice requirement that is sufficient and that the Government's request is "vague" and overbroad.

Finally, Chabad directly attacks the U.S. government's assertion that "further steps in the litigation will not be productive" to resolving the issue by filing an affirmation by Seth Gerber, counsel for Chabad, describing how the Court's earlier order allowing sanctions led to direct, high-level negotiations with the Russian Government and "secured the direct attention of Russian President Vladimir Putin."

Wednesday, February 26, 2014

Confirmed: The CIA Destroyed Its Noam Chomsky File and Thousands More on Other U.S. Citizens

I can now confirm that the reason why the CIA could not locate its file on Noam Chomsky, despite the fact that the CIA had in fact maintained records on him, is that the CIA destroyed them and, unfortunately in my view, the destruction was authorized by the Archivist of the United States.

As background, in an earlier post "More CIA Records on Noam Chomsky the CIA Could Not Find" I analyzed some additional CIA records (see, e.g.,  here from 1967, here, here, and here from 1970, and here from 1971) showing that the CIA was documenting the activities of Noam Chomsky as part of the CIA's CHAOS/MHCHAOS program. Importantly, those documents were located in the "Segregated Collection" of CIA records that were provided to the House Select Committee on Assassinations established in 1976 to investigate the assassinations of JFK and MLK, which are available in full-text search from the Mary Ferrell Foundation

My post was a follow-up to John Hudson's earlier piece in Foreign Policy called "Exclusive: After Multiple Denials, CIA Admits to Snooping on Noam Chomsky" that was based on a CIA document obtained via a FOIA request to the FBI by Kel McClanahan at National Security Counselors on behalf of Chomsky biographer Fredric Maxwell after the CIA had repeatedly denied possession any such records.

The new piece of the puzzle, just obtained via FOIA, is this CIA records control schedule, NC1-263-78-1, signed by then Archivist James B. Rhoads in March 1978 approving a "Request for immediate disposal" of thousands of CIA files on U.S. citizens "and the index related to these collections which were established under project CHAOS during the period 1967-1974."  The schedule notes that the "files were opened to maintain information bearing on possible foreign Communist exploitation of dissention in the United States, primarily concerning the Vietnam War. Subject of the folders were U.S. citizens and organizations involved in dissident activities in the United States."  

The schedule actually quantifies these files noting there were "8,328 folders on individual U.S. persons (citizens, resident aliens) and 2,196 volumes consisting of official and 'soft' subject files and so-called sensitive files (i.e., organizations/activities)." The CIA only requested immediate destruction of 7,840 of the files and was retaining the other 488, because it had deemed them to be of "continuing foreign intelligence or counter-intelligence interest." The schedule also excludes records that were, at the time, subject to FOIA or Privacy Act requests.

The schedule explains why the CIA denied having any such records and why the CIA records on Chomsky have been found in collections outside the CIA. Moreover, on its face, this approved records schedule made the destruction of the records consistent with the procedure outlined in the statutes collectively referred to as the Federal Records Act (although it is not conclusive as courts can, and have, found that even records schedules fail to comply with the federal records laws (see, e.g., American Friends Serv. Comm. v. Webster, 720 F.2d 29, 65-67 (D.C. Cir. 1983)). 

The bigger issue, as I suggested in my earlier post, is that the incomplete story of the CIA's creation, maintenance, and then destruction of its Noam Chomsky file highlights yet again a crucial question that needs attention and discussion in the ongoing debate over NSA surveillance files (previously discussed here).  Namely, the drive for "purging" surveillance data and "minimization" procedures purportedly designed to "protect privacy" needs to be balanced against the value of retaining government surveillance files (or some portion thereof) for long-term accountability purposes.  We now know that the CIA destroyed its file on Noam Chomsky based on a records schedule that cites the Privacy Act as justification, but that destruction also had the effect of creating, for years, the false impression that the CIA had never had such a file in the first place. There has to be a middle path that both protects privacy and also preserves accountability.

Tuesday, February 25, 2014

The Lost Archives of Noriega

I have a new law review article (available here) entitled "The Lost Archives of Noriega: Emancipating Panamanian Human Rights Documents in U.S. Military Custody" just published by the Boston University International Law Journal.  The article discusses the fate and legal status of over six million pages of records seized by U.S. forces in Panama that continue to sit in a military warehouse in Albany, Georgia.

Previous coverage of these documents is here.

Monday, February 24, 2014

U.S. Government Opposes $14.75 Million Judgment Against Russia Over Jewish Archives

The U.S. government has now filed a new Statement of Interest (here) in the Chabad v. Russian Federation case, which involves a dispute over the return of the historical Jewish library and archive (the so-called Schneerson collection) that remain in Russia.  The U.S. government opposes Chabad's recent motion for entry of "interim judgment" in the amount of $14.75 million against the Russian Federation that reflected, the $50,000 per day sanctions for Russia's failure to transfer custody of the library and archive to Chabad.

The new U.S. Statement of Interest begins by recycling the same argument the United States previously made -- and the court previously rejected -- that the Foreign Sovereign Immunities Act does not allow the sanctions the court is imposing.  The United States also recycles its earlier arguments that, even if the law allowed such sanctions, to impose them would be counterproductive to the the return of the property and would cause "harm to the United States' foreign policy interests."  Judge Lamberth previously rejected these arguments as well and it is hard to imagine he would suddenly find them persuasive now.

The one request of the U.S. government that Judge Lamberth is likely to grant is that, if the court grant's Chabad's motion, the U.S. wants Chabad "to provide the Court and the United States with advance notice of any efforts to take additional steps to enforce the Court's interim judgment" in order to "permit the United States to make a timely, considered determination as to what steps it might need to take to protect its interests." Elsewhere the United States alternatively phrases this as "the United States would consider taking appropriate action to seek to prevent or mitigate" the purported harm to its foreign policy interests.  What such "appropriate action" the U.S. government has in mind is unclear, but perhaps we may see in the future.

The final noteworthy part of the government's Statement of Interest its Exhibit A, which consists of a letter from Mary E. McLeod, the Principal Deputy Legal Adviser at the State Department. It primarily urges that the Department of Justice file a Statement of Interest, but also notes past and ongoing diplomatic efforts to resolve the dispute.  Of particular interest, it discloses that the U.S. State Department has proposed to the Russian Federation "a partial resolution through a state-to-state archival exchange agreement."  Whether that proposal simply involves the return of the library and archive at issue in the Chabad case pursuant to this agreement or whether the agreement actually involves the U.S. sending some unknown archives to the Russian Federation in "exchange" raises some interesting questions.  The letter also notes the corresponding lawsuit (for recent update see here) that the Russian Ministry of Cultural and the Russian State Library filed in Moscow last year against the United States and the U.S. Library of Congress in relation to seven books that are part of the Chabad collection that Russia had loaned to the Library of Congress during the 1990s.

Lastly, for an interesting account of what it is like to visit the collection in Moscow, see this recent piece by Paul Berger.

Wednesday, February 12, 2014

New Article on Iraqi Intel on Iranian Nuclear Program Based on Captured Documents

The CIA's latest issue of Studies in Intelligence has a new piece by an anonymous author entitled "Iraqi Human Intelligence Collection on Iran's Nuclear Weapons Program, 1980-2003" that relies upon a number of Iraqi documents captured by U.S. forces that are available at the Conflict Records Research Center at the National Defense University. The abstract of the new piece is below and available here, the full-text pdf of the article is here.
Well before the United States and the Western world first questioned Iran’s nuclear goals, members of Iraq’s intelligence services had recruited high-level Iranian officials and individuals involved in Tehran’s nuclear program. This article draws on captured IIS and GMID records held at the Conflict Records Research Center (CRRC) at the National Defense University in Washington, DC. Until US forces entered Iraq in 2003, most research on Saddam’s regime had relied on secondary sources or “the occasional memoir or defector’s account.” This is no longer the case. From the beginning of the Iraq War in 2003, US troops and their allies captured millions of Iraqi state records. The records, many of which are available to scholars today, offer a variety of primary sources relating to the inner-workings of Saddam’s Ba’athist state. The records also reveal much about Iraq’s foreign human intelligence (HUMINT) collection discipline, and it is upon these records that this account is largely based.

Friday, February 7, 2014

Senate Passes Resolution on Iraqi Jewish Archive: Some Thoughts

Last night the Senate passed by unanimous consent Senate Resolution 333 (available here), which "strongly urges" the State Department to "renegotiate" with Iraq "in order to ensure that the Iraqi Jewish Archive be kept in a place where its long-term preservation and care can be guaranteed."  Led by Sen. Pat Toomey, the Resolution had 30 co-sponsors from both parties.

Some thoughts:

First, the Resolution has a balanced tone which is conducive to the type of re-negotiation it urges.  It gives credit to Iraq, for example, for "acknowled[ing] the importance of the Archive" and demonstrating "a shared respect for the wishes of the Iraqi Jewish diaspora" based on its agreement to, and attendance at, the burial of several Torah fragments from the Archive in a New York cemetery in December 2013 (Iraqi Embassy press release on that event is here, AP coverage here).  The Resolution also both "reaffirms the United States commitment to cultural property under international law," which I would read as a show of respect for the position of Iraq, while it also "reaffirms the United States commitment to ensuring justice for victims of ethnic and religious persecution."

Second, the Resolution puts forward what appear to be reasonable and modest goals.  After a series of "whereas" phrases that put the status and fate of the Iraqi Jewish Archive in historical context, the substance of the Resolution is to urge (1) that the State Department negotiate with Iraq "in order to ensure that the Iraqi Jewish Archive be kept in a place where its long-term preservation and care can be guaranteed" and (2) that "the Iraqi Jewish Archive should be housed in a location that is accessible to scholars and to Iraqi Jews and their descendents who have a personal interest in it."  Of course, Iraq would respond that negotiation is not even necessary to accomplish goal (1), which Iraq has stated it shares.  Goal (2) is a bit more complex, however, especially given that (as the burial of the Torah fragments illustrated) special religious importance attaches to some of the physical originals that can not be replicated through digital copies and the fact, stated elsewhere in the Resolution, that the "Iraqi Jewish community" is "now represented by the diaspora outside Iraq."

Finally, the Resolution provides a compelling justification for new negotiations noting that the agreement between the National Archives and Records Administration (NARA) and the Coalition Provisional Authority (CPA) from August 2003 (available here) was signed "under great urgency and before adequate time could be dedicated to researching the history of the Iraqi Jewish Archive" and, again later in the Resolution, that that the agreement was "signed before knowing the complete history of the Iraqi Jewish Archive."  This is clearly correct.  As I mentioned in an earlier post, for example, when the State Department published a Notice in the Federal Register in August 2003 designed to protect the Iraqi Jewish Archive under the Immunity from Seizure Act it strains credulity that the State Department enforced even its own standards that purport to require a "professional inquiry" using "independent, multi-source research" into the provenance of foreign cultural property coming into the U.S. and a certification that there is no "reason to know"of any "potential for competing claims of ownership." The complexity of the legal status of the Archive was simply not considered adequately and fully in the rush -- both understandable and praiseworthy -- to protect them.

More broadly, the larger issue is the nature of the "agreement" that the Resolution urges the State Department to "re-negotiate," which raises unresolved questions.  A recent news piece on the controversy over the Archive, for example, includes quotes from U.S. Rep. Jerrold Nadler asserting that the NARA-CPA agreement was essentially between two U.S. entities and asking "Why should we negotiate with the government of Iraq at all? . . . I don't see that they have any business in this" and the Iraqi Ambassador to the U.S., Lukman Faily, responding that "this was an agreement, a legal agreement, agreed with the [CPA] back in 2003 and it's owned by the Iraqi government," both of which are overstatements.

Contrary to Rep. Nadler's assertions, there is, of course, a second letter "agreement" directly between the Iraqi Ministry of Culture of and the CPA in which Iraq agreed to the removal of the archive "on the condition that" the "documents are returned to Iraq."  Moreover, Nadler's characterizations of the CPA, which was acting as occupying power in Iraq, are not necessarily consistent with the U.S. government's inconsistent, and never fully resolved, assertions regarding the precise legal status of the CPA.  See, for example, the Congressional Research Service's report, The Coalition Provisional Authority (CPA): Origin, Characteristics, and Institutional Authorities from 2005 which notes that U.S. government assertions about the CPA make unclear even basic facts such as whether the CPA was created by the President, CENTCOM, or a U.N. Security Council resolution.  And in any event, the CPA-NARA agreement also directly involves Iraq given that the CPA formally appointed the Iraqi Ministry of Culture its designee under the terms of the agreement (2004 Letter of Designation here).

On the other hand, neither of these "agreements" is a formal U.S. treaty and neither may constitute an "international agreement" or executive agreement under U.S. law.  I would be happy to be corrected, but I have not seen any indication that either agreement was reported to Congress pursuant to the Case Act, for example.  Regardless of the extent to which it is a "legal" agreement, however, it still would be enough to constitute a "political" commitment that the U.S. cannot simply disregard.

According to an anonymous State Department official, it appears that the State Department has already begun discussions with Iraq in order to find "a creative approach to access and sharing of these documents and materials."  While concern for diplomatic appearances may prevent either side from characterizing such discussions as a "re-negotiation" -- even if accurate -- hopefully an acceptable solution can be found in line with the goals identified in S. Res. 333 that successfully navigates all of the competing interests.

Wednesday, January 29, 2014

Chabad Moves for $14.75 Million Judgment Against Russia over Jewish Archives

In a new development in the Chabad v. Russian Federation case over the return of the historical Jewish library and archive that remains in Russia (previously coverage here, here, and here), Chabad has filed a motion for an entry of "interim judgment" in the amount of $14,750,000 against the Russian Federation.  The figure reflects the $50,000 per day sanctions that have accrued from January 2013 to January 2014 for Russia's failure to transfer custody of the library and archive as the court ordered in 2010.

The motion states that Russia has "demonstrated a consistent lack of interest in resolving this matter in contemptuous disregard of this Court's jurisdiction and rulings and in flagrant disregard of well-established international law prohibiting the plunder and looting of cultural and religious objects in time of war and upheaval."

Moreover, the motion notes that in December 2013:
Russian President Vladimir Putin personally decided to take matters into his own hands by announcing the placement of a small portion of the Library within a special department of the Russian State Library at the Jewish Museum and Tolerance Center in Moscow -- rather than, as this Court directed, returning the entire Library and Archives to Chabad's duly authorized representative.
The motion ends by arguing:
While money cannot remedy the continued theft of Chabad's sacred religious texts, a clear sign from this Court regarding the significance of this litigation and the consequences of Russia's ongoing disregard of the Court's orders may help to speed the timing of their return.

Tuesday, January 7, 2014

John Rizzo's Tape Destruction Revisionism

Former acting CIA General Counsel John Rizzo's new book "Company Man" makes the story of the creation and destruction of the interrogation tapes the main lead-in.  While the publisher's description states that the book "provides the most comprehensive account ever written of the 'torture tape' fiasco" Rizzo's account is demonstrably misleading, incomplete, and puzzling.  A few points:

First, Rizzo grossly misrepresents the findings of the CIA Office of Inspector General's (OIG) investigation relating to the tapes.  As you'll recall, the OIG found that the interrogators were waterboarding detainees in a manner very different than described in the DOJ OLC opinion on which the CIA purported to be relying. "The difference," the CIA OIG stated, was "in the manner in which the detainee's breathing was obstructed." In the DOJ opinion,
the subject's airflow is disrupted by the firm application of a damp cloth over the air passages: the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency interrogator [redacted] continuously applied large volumes of water to a cloth that covered the detainee's mouth and nose.
One of the "psychologists/interrogators" even acknowledged the discrepancy to the OIG and "explained that the Agency's technique is different because it is 'for real' and is more poignant and convincing."

In Rizzo's retelling these crucial findings by the OIG are inexplicably converted into:
In its report on the interrogation program issued in May 2004, the Office of Inspector General (OIG) made a number of references to the tapes. It noted that it had looked at the tapes and, apart from questioning the CTC's numbers on how many waterboarding sessions were conducted, did not find any unauthorized techniques were used on Zubayadah.
Second, Rizzo's book provides now-final confirmation that John McPherson was the CIA attorney who viewed the tapes in late December 2002 and who was interviewed about them by the OIG in 2003.  The full significance of this is explained in my earlier posts here and here, but in brief, McPherson is the secret, overlooked linchpin in the ACLU FOIA case.  After holding that the CIA had violated his orders by failing to identify the tapes as records of the OIG's investigation that were responsive to the ACLU's FOIA request, Judge Hellerstein nevertheless stayed his hand in holding the CIA in contempt based on the erroneous view that the "evidence suggests that the individuals responsible for processing and responding to plaintiffs' FOIA requests may not have been aware of the videotapes' existence before they were destroyed."  This is demonstrably inaccurate given that the individual who responded to the ACLU in relation to the OIG's files in April 2005 was none other than John McPherson, the person who knew more about the tapes than anyone else.  Rizzo further confirms that, in fact, McPherson "was the CIA lawyer who was responsible for tracking the ongoing court cases where the tapes could be potentially implicated."

Judge Hellerstein's information was incorrect based, in part, on statements made by the DOJ lawyer representing the CIA at oral argument, Peter Skinner, who represented that CIA FOIA personnel had mechanically searched the OIG files stating that, in the CIA's view, Hellerstein had meant:
You only have to search what has been produced to or collected by the OIG. And we said, Okay, we'll go back and we'll do what the Court's told us. And when we searched and reviewed documents collected by the OIG, when the FOIA personnel did that, they didn't have any videotapes because the videotapes weren't there.
Hellerstein responded:
THE COURT: If your client was aware that that representation to me masked information that was important to the OIG, it was not put into the OIG files, I hesitate to state the inference I would take from that, Mr. Skinner.
MR. SKINNER: Your Honor, I certainly don't --
THE COURT: It seems to me that you were gulled and the Court was gulled.
Rizzo's book provides the final proof: Judge Hellerstein, you were gulled by the CIA.

Finally, more broadly, Rizzo's book attempts to make the tapes simply a story about Jose Rodriguez insubordinately going behind his back to destroy them, but fails to acknowledge that the destruction would not have occurred but for the troubling and incorrect legal interpretations of Rizzo (and his subordinates) which repeatedly advised Rodriguez (including just before Rodriguez ordered the destruction) that there was no legal obligation to retain the tapes.  Rizzo fails to mention that his faulty legal interpretations that the tapes were not "records" and that they were not legally required to be retained as relevant to ongoing or foreseeable litigation have been rejected by every court that has considered them on the merits. See, e.g., Abdullah v. Bush, 534 F. Supp. 2d 22 (D.D.C. 2008) (finding that a GTMO detainee made a "sufficient showing" that the tapes were subject to a 2005 preservation order); ACLU v. DOD, 04-cv-4151 (D.D.C. Oct. 5, 2011) (holding that the tapes were records subject to the ACLU's FOIA requests).  Indeed the National Archives inquiry into whether the destruction was an unauthorized destruction of federal records is still not closed.

To the extent Rizzo mentions the legal status of the tapes at all, his account is conflicted and inconsistent.  When he first hears about the tapes (which he states was not until October 2002), he recognized that destroying them "was fraught with enormous risk" as any "minimally competent attorney" would. He also acknowledges "the certainty" that the program and the tapes "would be implicated in prosecutions of captured Al Qaeda terrorists in the years to come" and yet nowhere does Rizzo explain how or why he came to the conclusion that there was nevertheless no legal obligation to retain the tapes and that "the question" was instead "not whether to destroy the tapes, but when."

The closest Rizzo comes is when - to his credit - Rizzo admits that the CIA avoided telling the 9/11 Commission about the tapes by "parsing literally every word in each of the commission's requests" which he acknowledges was a "mistake."