A Nation Of Men

No Charges in Destruction of C.I.A. Interrogation Tapes

WASHINGTON — A federal prosecutor will not bring criminal charges against any of the Central Intelligence Agency officers involved in destroying videotapes depicting the brutal interrogation of Al Qaeda detainees, the Justice Department said on Tuesday.

After an investigation spanning nearly three years, John H. Durham, the special prosecutor assigned to the case by former Attorney General Michael Mukasey, has decided not to charge the C.I.A. undercover officers and top lawyers at the agency for their roles in the destruction of the tapes.

Matthew Miller, a Justice Department spokesman, said that since that appointment, “a team of prosecutors and F.B.I. agents led by Mr. Durham has conducted an exhaustive investigation into the matter.” He continued, “As a result of that investigation, Mr. Durham has concluded that he will not pursue criminal charges for the destruction of the interrogation videotapes.”

Jose A. Rodriguez, the former head of the agency’s clandestine service, ordered his staff in November 2005 to destroy tapes of the interrogations of Abu Zubaydah and Abd al-Rahim al-Nashiri. The tapes had been kept in a safe in the agency’s station in Thailand, the country where the interrogations were conducted in 2002.

Mr. Rodriguez took responsibility for the destruction of the tapes, according to current and former government officials, and said that C.I.A. lawyers had authorized his order. The agency withheld the fact that the tapes existed from , federal courts and the Sept. 11 Commission, which had asked the agency for records of the interrogations.

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Unquestioned Authority

Obama Administration Claims Unchecked Authority To Kill Americans Outside Combat Zones

WASHINGTON – The Obama administration today argued before a federal court that it should have unreviewable authority to kill Americans the executive branch has unilaterally determined to pose a threat. Government lawyers made that claim in response to a lawsuit brought by the American Civil Liberties Union and the Center for Constitutional Rights (CCR) charging that the administration’s asserted targeted killing authority violates the Constitution and international law. The U.S. District Court for the District of Columbia heard arguments from both sides today.

“Not only does the administration claim to have sweeping power to target and kill U.S. citizens anywhere in the world, but it makes the extraordinary claim that the court has no role in reviewing that power or the legal standards that apply,” said CCR Staff Attorney Pardiss Kebriaei, who presented arguments in the case. “The Supreme Court has repeatedly rejected the government’s claim to an unchecked system of global detention, and the district court should similarly reject the administration’s claim here to an unchecked system of global targeted killing.”

The ACLU and CCR were retained by Nasser Al-Aulaqi to bring a lawsuit in connection with the government’s decision to authorize the targeted killing of his son, U.S. citizen Anwar Al-Aulaqi. The lawsuit asks the court to rule that, outside the context of armed conflict, the government can carry out the targeted killing of an American citizen only as a last resort to address an imminent threat to life or physical safety. The lawsuit also asks the court to order the government to disclose the legal standard it uses to place U.S. citizens on government kill lists.

“If the Constitution means anything, it surely means that the president does not have unreviewable authority to summarily execute any American whom he concludes is an enemy of the state,” said Jameel Jaffer, Deputy Legal Director of the ACLU, who presented arguments in the case. “It’s the government’s responsibility to protect the nation from terrorist attacks, but the courts have a crucial role to play in ensuring that counterterrorism policies are consistent with the Constitution.”

The government filed a brief in the case in September, claiming that the executive’s targeted killing authority is a “political question” that should not be subject to judicial review. The government also asserted the “state secrets” privilege, contending that the case should be dismissed to avoid the disclosure of sensitive information.

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Hit and Run

DA: Hit-And-Run Suspect Won’t Face Felony Because Of Job

EAGLE COUNTY, Colo. — Prosecutors have dropped felony charges against a man accused in a hit-and-run because prosecutors don’t want the man to lose his job as a financial manager.

Martin Joel Erzinger, 52, is accused of hitting cyclist Dr. Steven Milo in July then speeding away. Milo was seriously injured.

When Avon police found Erzinger a few miles away, he was putting a broken side mirror and a bumper in his trunk, according to court records obtained by the Summit Daily News. Erzinger told police he was unaware he had hit Milo.

Erzinger works at Morgan Stanley Smith Barney in Denver. He manages more than $1 billion in assets as a director in private wealth management and would have to disclose any felony charge within 30 days, according to North American Securities Dealers regulations.

“Mr. Erzinger struck me, fled and left me for dead on the highway,” Milo said in a letter to District Attorney Mark Hurlbert. “Neither his financial prominence nor my financial situation should be factors in your prosecution of this case.”

“Felony convictions have some pretty serious job implications for someone in Mr. Erzinger’s profession, and that entered into (the decision),” Hurlbert told the newspaper. “When you’re talking about restitution, you don’t want to take away his ability to pay.”

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Of Dogs and Men

Timeline of Michael Vick dogfighting case

Aug. 27, 2007 — Vick pleads guilty to dogfighting conspiracy before U.S. District Judge Henry Hudson. At a news conference, Vick apologizes for “using bad judgment and making bad decisions. I offer my deepest apologies to everyone. And I will redeem myself. I have to.”

Nov. 20, 2007 — Vick surrenders to U.S. marshals and begins serving his sentence in a Virginia jail three weeks before his official sentencing.

Dec. 10, 2007 — Vick is sentenced to 23 months in federal prison.

Judge Perry Issues Sentence For Johannes Mehserle: Two Years

LOS ANGELES-Judge Robert Perry has sentenced former BART transit cop Johannes Mehserle to the minimum sentence of two years in state prison for the shooting death of 22-year-old Oscar Grant.

The sentence comes after more than a year and a half of legal wrangling and community unrest, including violent protests and looting in downtown Oakland. The former BART police officer was found guilty of involuntary manslaughter in July for the January 1, 2009 shooting of the unarmed black man on a train platform in Oakland, CA.

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Leaving The Backdoor Open

U.S. enables Chinese hacking of Google

Google made headlines when it went public with the fact that Chinese hackers had penetrated some of its services, such as Gmail, in a politically motivated attempt at intelligence gathering. The news here isn’t that Chinese hackers engage in these activities or that their attempts are technically sophisticated — we knew that already — it’s that the U.S. government inadvertently aided the hackers.

In order to comply with government search warrants on user data, Google created a backdoor access system into Gmail accounts. This feature is what the Chinese hackers exploited to gain access.

Google’s system isn’t unique. Democratic governments around the world — in Sweden, Canada and the UK, for example — are rushing to pass laws giving their police new powers of Internet surveillance, in many cases requiring communications system providers to redesign products and services they sell.

Many are also passing data retention laws, forcing companies to retain information on their customers. In the U.S., the 1994 Communications Assistance for Law Enforcement Act required phone companies to facilitate FBI eavesdropping, and since 2001, the National Security Agency has built substantial eavesdropping systems with the help of those phone companies.

Systems like these invite misuse: criminal appropriation, government abuse and stretching by everyone possible to apply to situations that are applicable only by the most tortuous logic. The FBI illegally wiretapped the phones of Americans, often falsely invoking terrorism emergencies, 3,500 times between 2002 and 2006 without a warrant. Internet surveillance and control will be no different.

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Silencing Ghosts

70-year gag on Kelly death evidence

Evidence relating to the death of Government weapons inspector David Kelly is to be kept secret for 70 years, it has been reported.

A highly unusual ruling by Lord Hutton, who chaired the inquiry into Dr Kelly’s death, means medical records including the post-mortem report will remain classified until after all those with a direct interest in the case are dead, the Mail on Sunday reported.

And a 30-year secrecy order has been placed on written records provided to Lord Hutton’s inquiry which were not produced in evidence.

The Ministry of Justice said decisions on the evidence were a matter for Lord Hutton. But Liberal Democrat MP Norman Baker, who has conducted his own investigations into Dr Kelly’s death, described the order as “astonishing”.

Dr Kelly’s body was found in woods close to his Oxfordshire home in 2003, shortly after it was revealed that he was the source of a BBC report casting doubt on the Government’s claim that Iraq had weapons of mass destruction capable of being fired within 45 minutes.

An inquest was suspended by then Lord Chancellor Lord Falconer, who ruled that Lord Hutton’s inquiry could take its place. But in the event, the inquiry focused more on the question of how the BBC report came to be broadcast than on the medical explanation for Dr Kelly’s death.

Lord Hutton’s report in 2004 concluded that Dr Kelly killed himself by cutting an artery in his wrist. But the finding has been challenged by doctors who claim that the weapons inspector’s stated injuries were not serious enough.

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Pimpin’ Ain’t Easy

Anti-ACORN Filmmaker, Others Accused of Trying to Infiltrate Senator’s Office

Four men have been arrested in Louisiana on suspicion of trying to gain access to Democratic Sen. Mary Landrieu’s New Orleans office by posing as telephone repairmen, it was reported Tuesday.

Among those taken into custody was James O’Keefe, the conservative filmmaker who shot undercover videos targeting the community organizing group ACORN last year, Politico reported. O’Keefe, 25, was arrested by the U.S. Marshal’s Service along with Joseph Basel, Robert Flanagan and Stan Dai, all 24, according to Politico.

The suspects face felony charges of “entering federal property under false pretenses,” according to a copy of an FBI affidavit obtained by Politico:

The complaint said that Flanagan and Basel each entered the premises, wearing light green fluorescent vests, denim paints and blue work shirts, tool belts and hard-hats. They informed a member of Landrieu’s staff that they were telephone repairmen and requested access to the main telephone at the reception desk, Politico reported.

When asked for identification the men said they left their credentials in their vehicles. They were arrested shortly afterwards.

According to the FBI, the four men could each face up to 10 years and a fine of $250,000 if they are convicted, Politico reported.

O’Keefe made news last year after an undercover video he shot showed ACORN employees discussing prostitution, tax evasion, and smuggling with a couple posing as a pimp and a prostitute.

In December, a report commissioned by the House Judiciary Committee found ACORN, which was heavily criticized after the video came to light, did not violate any federal regulations.

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A Crowd Of Ordinary Decent Folk

Barbed wire enclosed an arbitrary spot
Where bored officials lounged (one cracked a joke)
And sentries sweated for the day was hot:

A crowd of ordinary decent folk
Watched from without and neither moved nor spoke
As three pale figures were led forth and bound
To three posts driven upright in the ground.

The mass and majesty of this world, all
That carries weight and always weighs the same
Lay in the hands of others; they were small
And could not hope for help and no help came:

What their foes like to do was done, their shame
Was all the worst could wish; they lost their pride
And died as men before their bodies died…
W.H. Auden, from The Shield of Achilles (1953)

Scott Horton

While working on “The Guantánamo ‘Suicides’” over the last weeks, I kept thinking back to these lines from Auden’s great poem. They seemed to describe the facts and problems I was pondering. The three men who died in Guantánamo on the night of June 9, 2006 certainly had failings and foibles as all men do; no one will portray them as angels. To its credit, the Bush Administration even seems to have determined to set two of them free; the third had only to await resolution of diplomatic problems between the United States and his homeland. These men were not warriors engaged in some vicious military campaign against the United States, nor was there a scintilla of evidence linking them to any crime. “They were small/ And could not hope for help and no help came,” Auden writes. And what was the reaction of the world to their plight? Auden describes it perfectly, and indeed it was only to be expected: “A crowd of ordinary decent folk/ Watched from without and neither moved nor spoke.” The only difference here is the sentries, who at great risk to themselves and their families have stepped forward to place on the record exactly what they saw. They know it defies the official story; they know they may suffer retribution for it; and they know that what they saw is not conclusive in any event. It is only a fragment of the truth, which needs to be put forward and made a part of the historical record. It was offered out of respect for the dignity of the dead and out of conviction that the truth should not be suppressed, no matter how unpleasant. In the corridors of power, however, a river surges past, indifferent to all these questions, viewing them as an insignificant distraction from the troubles of a war.

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Don’t Look Back, Never Ever Look Back

FBI, Telecoms Teamed to Breach Wiretap Laws

The FBI and telecom companies collaborated to routinely violate federal wiretapping laws for four years, as agents got access to reporters’ and citizens’ phone records using fake emergency declarations or simply asking for them.

The Justice Department Inspector General’s internal audit, released Wednesday, harshly criticized how the Federal Bureau of Investigation’s Communications Analysis Unit — a counterterrorism section founded after 9/11 — relied on so-called “exigent” letters to get carriers to turn over phone records immediately. The letters were a hangover from the investigation into the 9/11 attacks in New York and promised telecoms, falsely, that subpoenas would follow shortly.

“The FBI’s use of exigent letters and other informal requests for telephone toll billing records circumvented, and in many cases violated, the requirements of the Electronic Communications Protection Act statute,” according to the report, which was referencing a leading federal wiretap law.


But an AT&T employee provided the unit with a way around some of those requirements. The employee introduced them to “exigent letters.” Those letters, first used immediately following 9/11, asked for information by saying that the request was an emergency and that prosecutors were preparing a grand jury subpoena. The letter falsely promised that the subpoena, which gives the telecoms legal immunity, would be delivered later, the report said.

What’s more, the report noted that the cozy relationship between the bureau and the telecoms made it hard to differentiate between the FBI and the nation’s phone companies.

“The FBI’s use of exigent letters became so casual, routine and unsupervised that employees of all three communication service providers told us that they — the company employees– sometimes generated the exigent letters for CAU personnel to sign and return,” the inspector general reported.

In fact, one AT&T employee even created a short cut on his desktop to a form letter that he could print out for a requesting FBI agent to sign.

Even that became too much. Agents would request “sneak peeks,” where they’d ask if it was worth their time to file a request on a given phone number, the inspector general noted. The telecom agents complied. Soon it graduated to numbers on Post-it notes, in e-mails or just oral requests.

There’s no telling how many of those there were, but the audit estimates more than 3,500 off-the-book requests from 2003 to 2007.


The telecoms also violated wiretapping law by instituting more than 100 so-called “hot watches” that would alert FBI agents if a targeted number made or received a call, the report said.

What’s more, FBI agents also used the exigent letters in a leak investigation to get records on more than 1,500 calls by Washington Post and New York Times reporters.


The Obama administration retroactively legalized the entire fiasco through a secret ruling from the Office of Legal Counsel nearly two weeks ago.

That’s the same office from which John Yoo blessed President George W. Bush’s torture techniques and warrantless wiretapping of Americans’ communications that crossed the border.

In the report’s final and heavily censored section, it discloses that the Office of Legal Counsel issued an opinion that it was legal for the FBI to obtain Americans’ phone records in the same manner that was harshly criticized by the inspector general’s report.

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