Posts from September, 2008

Subpoena for Office of Legal Counsel Documents Authorized

The Senate Judiciary Committee has authorized the issuance of a subpoena for a copy of opinions of the Justice Department Office of Legal Counsel (OLC).

OLC opinions interpret the law for executive branch agencies. Controversially, they have been used to sanction official departures from existing legal norms in domestic surveillance, prisoner interrogation, and other areas. They have also frequently been withheld from most members of Congress (though they have reportedly been provided to the intelligence committees in many cases).

“During this administration, OLC has been misused to provide legal justifications for misguided policies,” said Sen. Patrick Leahy, chairman of the Judiciary Committee. “That advice has been deeply flawed, sloppy, and flat out wrong but it has been permitted to happen because secrecy has prevented our oversight.”

“Unjustified secrecy continues to prevent the review by this Committee that would provide a check and some control on how the administration is interpreting the law that is Congress’s constitutional responsibility to write. That obsessive secrecy even prevents us from knowing the subject matter on which OLC has written opinions,” Sen. Leahy said.

The secrecy of OLC decisions, as well as interrogation policy, the role of signing statements and many other questions were explored in detailed questions submitted to Michael B. Mukasey following his confirmation hearing last October. The full record of that hearing (with the Attorney General’s answers in the PDF version) has now been published.

Secret OLC opinions, along with overclassification generally, and a litany of other problematic practices were explored by Sen. Russ Feingold in a hearing last week on “Restoring the Rule of Law.” Senator Feingold summarized the findings and recommendations of that hearing in a floor statement yesterday.

Sen. Inouye on Intelligence Oversight

Sen. Daniel Inouye (D-HI) this week defended the current structure of congressional oversight of intelligence, and specifically rejected a proposal by Sen. Christopher Bond (R-MO) to establish a subcommittee on intelligence within the Senate Appropriations Committee (described in Secrecy News, Sept. 12).

Sen. Bond’s proposal, according to Sen. Inouye, would have the undesirable effect of reducing the number of Senators and staff who are engaged in intelligence oversight. “It would put all decisionmaking into fewer hands,” he said.

In making his argument, Senator Inouye also provided some fresh insight into current intelligence oversight arrangements in the Intelligence and Appropriations Committees.

“I would point out that the Intelligence Committee has one professional staff member on the majority staff who reviews the budget for the National Reconnaissance Office; so do we [on the Appropriations Committee]. The Intelligence Committee has one professional staff member on the majority staff who reviews the budget for the National Security Agency; so do we.”

Sen. Inouye also obliquely discussed an intelligence satellite program advocated by Sen. Bond but rejected by the Appropriations Committee.

The history of congressional oversight of intelligence and specifically the CIA was recently explored in depth by L. Britt Snider in “The Agency and the Hill: CIA’s Relationship with Congress, 1946-2004″ (pdf), CIA Center for the Study of Intelligence, 2008.

Reviewing the book in the latest issue of Studies in Intelligence, bibliophile and intelligence expert Hayden B. Peake wrote that “It will be the principal reference book on the topic for the foreseeable future.” But surprisingly, the Snider book has minimal discussion of intelligence budget disclosure, one of the perennial themes in congressional oversight, and it does not even mention the official declassification of the intelligence budget in 1997 and 1998. David M. Barrett’s “The CIA and Congress,” cited by Snider, also has additional material not found in the Snider book for the early years of the Agency.

Burundi Ratifies the Comprehensive Test Ban Treaty

The African Republic of Burundi this week ratified the Comprehensive Test Ban Treaty which prohibits all nuclear explosions. A total of 145 nations have now ratified the Treaty, according to a news release from the CTBT Organization.

Detailed background on the Comprehensive Test Ban Treaty is available from the Congressional Research Service in a report updated September 18 (pdf) that has not previously been made available online.

Court Orders Release of Detainee Abuse Photographs

A federal court of appeals this week affirmed that 21 photographs depicting abusive treatment of detainees by U.S. soldiers in Iraq and Afghanistan must be disclosed under the Freedom of Information Act.

“The public interest in disclosure of these photographs is strong,” the Second Circuit panel concluded in a September 22 ruling (pdf) in favor of the American Civil Liberties Union and other plaintiffs.

The ruling carefully analyzed and rejected several government arguments against disclosure.

Among other things, the government had contended that the photographs should be exempted from disclosure under FOIA exemption 7(F), which protects law enforcement records that “could reasonably be expected to endanger the life or physical safety of any individual.” Government attorneys said that release of the photographs (which were gathered in the course of an Army criminal investigation) could be used to incite violence against U.S. forces, coalition forces or civilians in Iraq or Afghanistan, and should therefore be withheld.

But even if potential incitement is a valid concern, the court said, it would not provide a basis for invoking FOIA exemption 7(F), which was intended to serve as “a shield against specific threats to particular individuals arising out of law enforcement investigations, never as a means of suppressing worldwide political violence.” The exemption is not supposed to be “an all-purpose damper on global controversy.”

In short, the court ruled, the cited FOIA exemption cannot be used as “an ersatz classification system” to bar access to these unclassified photographs.

Nor can the government legitimately invoke the Third and Fourth Geneva Conventions that protect prisoners “against insults and public curiosity.”

“Both of these treaties were designed to prevent the abuse of prisoners,” the court explained. “Neither treaty is intended to curb those who seek information about prisoner abuse in an effort to help deter it.”

At the end of World War II, the court noted, the government itself “widely disseminated photographs of prisoners in Japanese and German prison and concentration camps. These photographs of emaciated prisoners, corpses, and remains of prisoners depicted detainees in states of powerlessness and subjugation similar to those endured by the detainees depicted in the photographs at issue here. Yet the United States championed the use and dissemination of such photographs to hold perpetrators accountable.”

In the same way, “Release of the photographs is likely to further the purposes of the Geneva Conventions by deterring future abuse of prisoners,” the court concluded. A copy of the 52 page ruling in ACLU et al v. Department of Defense et al is posted here.

“These photographs demonstrate that the abuse of prisoners held in U.S. custody abroad was not aberrational and not confined to Abu Ghraib, but the result of policies adopted by high-ranking officials,” said Amrit Singh, the ACLU attorney who argued the case.

“Their release is critical for bringing an end to the administration’s torture policies and for deterring further prisoner abuse,” Ms. Singh said.

Court Orders Preservation of Vice Presidential Records

In a rare judicial rebuff to the Office of Vice President Dick Cheney, a federal court issued a preliminary injunction (pdf) requiring the preservation of Vice Presidential records over the objections of Administration attorneys.

A lawsuit brought by Citizens for Ethics and Responsibility in Washington (CREW) along with historians and others alleged that the Office of Vice President had improperly limited the scope of records that it said would be preserved under the Presidential Records Act, and that records outside the scope of that definition were liable to be destroyed.

Judge Colleen Kollar-Kotelly agreed that there was no legal basis on the record for the Vice President’s position. On September 20, she ordered the government to preserve all official Vice Presidential records “without regard to any limiting definitions that Defendants may believe are appropriate.”

“It’s a pretty strong opinion,” said Anne Weismann, chief counsel for CREW. “They will be prevented from destroying anything. It basically means they have to preserve everything in the broadest possible interpretation of what the law requires — not their narrow interpretation.”

New Light on Private Security Contractors in Iraq

The use of thousands of private security contractors in Iraq represents a quantitatively new feature of U.S. military operations, but relatively little has been publicly disclosed about the contractual arrangements involved.

The war in Iraq “is apparently the first time that the United States has depended so extensively on contractors to provide security in a hostile environment,” according to a recently updated Congressional Research Service report (pdf).

But “the use of armed contractors raises several concerns, including transparency and accountability,” the CRS report said.

“The lack of public information on the terms of the contracts, including their costs and the standards governing hiring and performance, make evaluating their efficiency difficult. The apparent lack of a practical means to hold contractors accountable under U.S. law for abuses and other transgressions, and the possibility that they could be prosecuted by foreign courts, is also a source of concern,” the CRS report said.

Thanks to a Freedom of Information Act request filed by David Isenberg of United Press International, new information is now available on the U.S. State Department’s Worldwide Personal Protective Services (WPPS) contract, which provides security services throughout Iraq (as well as Afghanistan, Bosnia and Israel).

UPI obtained the WPPS contract specifications from the State Department and reported on the material in “Dogs of War: WPPS World” by David Isenberg, September 19. The newly disclosed contract material itself was posted by UPI here (pdf).

Extensive background information on the issue is available from the Congressional Research Service in “Private Security Contractors in Iraq: Background, Legal Status, and Other Issues,” updated August 25, 2008.

Dept of Defense Role in Foreign Assistance, and More from CRS

The structure, development and ramifications of growing U.S. Department of Defense foreign assistance activities are described in a major new report from the Congressional Research Service. See “The Department of Defense Role in Foreign Assistance: Background, Major Issues, and Options for Congress” (pdf), August 25, 2008.

Other noteworthy new reports from CRS that have not been made readily available to the public include the following (all pdf).

“Pay-for-Performance: The National Security Personnel System,” September 17, 2008.

“The Defense Base Act (DBA): The Federally Mandated Workers’ Compensation System for Overseas Government Contractors,” September 15, 2008.

“The North Korean Economy: Leverage and Policy Analysis,” updated August 26, 2008.

“Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments,” updated August 21, 2008.

“Periods of War,” updated August 19, 2008.

“The Manhattan Project, the Apollo Program, and Federal Energy Technology R&D Programs: A Comparative Analysis,” September 3, 2008.

Ideological Conflict Puts Al Qaeda on the Defensive

Al Qaeda is “imploding,” a State Department counterterrorism official told the Associated Press last week, as a result of growing opposition in the Muslim world.

The implication that al Qaeda’s demise may be imminent is almost certainly incorrect. But what is true is that “a severe intellectual conflict has emerged” within the jihadist movement, said Kamal Habib, a former official of the Egyptian Jihad Organization (Al Arab, September 14).

Over the past year, al Qaeda has been publicly criticized by several of its own former supporters and ideological leaders, most notably Sayyid Imam Al-Sharif, also known as Dr. Fadl, who once saved the life of Usama bin Laden.

“Sayyid Imam is viewed as the greatest and most important authority for all of the jihadist salafist groups,” said Kamal Habib.

So when Sayyid Imam declared in a November 2007 book that killing non-combatant civilians, including Christians and Jews, is prohibited and that Al Qaeda’s conduct of jihad against the west was illegitimate, it produced an ideological earthquake within Islamist ranks.

“Fadl’s arguments undermined the entire intellectual framework of jihadist warfare,” wrote Lawrence Wright in an illuminating article in The New Yorker (June 2, 2008).

“Al Qaeda senior leaders in 2008 have devoted nearly half their airtime to defending the group’s legitimacy,” observed National Intelligence Officer Ted Gistaro in an August 12 speech (pdf). “This defensive tone … reflects concern over allegations by militant leaders and religious scholars that al Qaeda and its affiliates have violated the Islamic laws of war, particularly in Iraq and North Africa.”

One of the major al Qaeda responses came in a book by bin Laden deputy Ayman al Zawahiri called “The Exoneration: A Treatise Exonerating the Community of the Pen and the Sword from the Debilitating Accusation of Fatigue and Weakness” (pdf).

The book is an attempt to defend the legitimacy of al Qaeda’s tactics, including the killing of civilians, against the critiques of Sayyid Imam and other Islamic figures.

“Those who claim that killing innocent persons is absolutely forbidden are in a position of accusing the prophet, may God’s peace and prayers be upon him, his companions, and the generation following them that they were killers of innocent persons, as they see it,” wrote Zawahiri.

He noted that the prophet authorized the use of catapults, which do not discriminate between innocent and guilty, and he also killed all the males of a Jewish tribe “and made no distinction between one person and another.”

“The Exoneration,” which was published in January 2008, was translated a few months later by the DNI Open Source Center. The translation has not been approved for public release, but a copy was obtained by Secrecy News.

“Zawahiri’s strategic thinking and understanding of asymmetrical warfare and revolutionary violence is heavily indebted to vanguardism, a Leninist theory of revolution which posits that a small, revolutionary elite uses violence to rouse the people to fight against the government,” according to a contractor analysis (pdf) performed for the Department of Defense and obtained by Secrecy News.

“The potential problem with Zawahiri’s application of the theory of vanguardism… is that terrorism usually diminishes the support of both the government as well as the terrorist organization,” as appears to be the case today.

See “Zawahiri Tries to Clear Name, Explain Strategy,” Transnational Security Issues Report, prepared for the Department of Defense by the International Research Center, April 21, 2008.

“Is Al Qaeda going to dissipate as a result of the criticism from its former mentors and allies? Despite the recent internal criticism, probably not in the short term,” said analyst Peter Bergen at a July 30 congressional hearing.

“However, encoded in the DNA of apocalyptic jihadist groups like Al Qaeda are the seeds of their own long-term destruction: Their victims are often Muslim civilians; they don’t offer a positive vision of the future; they keep expanding their list of enemies, including any Muslim who doesn’t precisely share their world view; and they seem incapable of becoming politically successful movements because their ideology prevents them from making the real-world compromises that would allow them to engage in genuine politics,” Mr. Bergen said.

Book: The Secret War with Iran

In 1997, acting on intelligence that a Hizballah cell was preparing to blow up the American embassy in Asuncion, Paraguay, a U.S. special forces team reportedly flew to the scene in several giant transport planes where it arrested the conspirators and prevented the attack.

If that episode happened as described (and it cannot readily be confirmed), it left no traces on the public record. It “is only one of many hidden battles” between Iran and the West, writes Israeli journalist Ronen Bergman in his new book “The Secret War with Iran” (Free Press, 2008).

The book, translated from the Hebrew and based on extensive interviews with Israeli intelligence officials and others, provides a wealth of insights, unfamiliar anecdotes, and telling observations regarding the three-decade-old confrontation with Iran. A few random examples:

Hizballah, acting as a proxy for Iran, temporarily refrained from taking American hostages between June 1985 and September 1986 in support of the secret arms sales deal between the U.S. and Iran that later became known as the Iran-contra affair.

Israel itself helped arm revolutionary Iran in a secret operation codenamed “Seashell” and described in the book. Earlier, Israel had also supplied advanced weaponry to the Shah, and “if Khomeini had not taken power as early as he did, he might have taken over a country armed with long-range missiles capable of carrying nuclear warheads… as well as a jet fighter that was supposed to be the best in the world.”

Out of a list of some 500 opposition figures targeted by Khomeini, nearly 200 of them were killed by Iranian assassins in Europe between 1980 and 1997.

Writing from an Israeli perspective, Mr. Bergman does not delve deeply into Iranian grievances or aspirations. But neither does he flatter the competence, judgment or morality of Israeli intelligence and military officials.

Categorized by the publisher as “political science,” the book is more of a work of intelligence history, with numerous strange tales of intelligence deeds and misdeeds, like the Israeli intelligence officer who was arrested for murdering his agent, and the Lebanese source who provided perfect warning of an impending attack only to be ignored in a turf battle between Israeli security agencies. The CIA is credited with “brilliantly” dismantling the Abu Nidal Organization, “sewing discord among its members by getting them to believe that they were being robbed by other operatives.”

Mr. Bergman, an investigative journalist who writes for Israel’s Yediot Aharonot, earned his doctorate under historian Christopher Andrew at Cambridge University. His dissertation explored Israeli intelligence operations in Africa.