Epic Fail in Congress: USA PATRIOT Act Renewed Without Any New Civil Liberties Protections
News Update by Kevin BankstonYesterday evening, the U.S. House of Representatives voted overwhelmingly to renew three expiring provisions of the USA PATRIOT Act, after the Senate abandoned the PATRIOT reform effort and approved the extension by a voice vote on Wednesday night.
Disappointingly, the government's dangerously broad authority to conduct roving wiretaps of unspecified or "John Doe" targets, to secretly wiretap of persons without any connection to terrorists or spies under the so-called "lone wolf" provision, and to secretly access a wide range of private business records without warrants under PATRIOT Section 215 were all renewed without any new checks and balances to prevent abuse. Despite months of vigorous debate, when PATRIOT renewal bills providing for greater oversight and accountability were approved by the Judiciary Committees of both the House and the Senate, Democratic leaders' push for reform fizzled in the face of staunch Republican opposition buoyed by recent hot-button events such as the attempted bombing of an airliner on Christmas Day and the shooting at Fort Hood.
The renewed PATRIOT provisions were originally set to expire on December 31, 2009, but Congress ran out of time last year and temporarily extended them until February 28th, this coming Sunday. The new extension is expected to be signed by the President before then.
The one silver lining? Despite a push by Republican leaders for a four-year extension, the renewed provisions are now set to expire in one year. So, although this battle's been lost, the effort to roll back PATRIOT's worst excesses is far from over. Thank you to everyone who took action to support PATRIOT reform this past year; we hope that you'll continue the fight with us in the next year.
Related Issues: PATRIOT Act, PrivacyCREW ASKS ATTORNEY GENERAL TO INVESTIGATE DESTRUCTION OF EMAILS RELATING TO TORTURE MEMOS
Contact:
Matt Jacob // 202.408.5565
Related Documents
25 Feb 2010 // Washington, D.C. - Today, Citizens for Responsibility and Ethics in Washington (CREW) asked Attorney General Eric Holder to investigate the destruction of emails of at least two former high-ranking Department of Justice (DOJ) officials, John Yoo and Patrick Philbin, who were involved in drafting the Office of Legal Counsel’s (OLC) memoranda authorizing torture. Last week, DOJ’s Office of Professional Responsibility (OPR) released a public version of a July 2009 report examining the actions of the OLC officials and concluded they had not violated any of their ethical obligations as lawyers. That report revealed for the first time that OPR’s investigation had been hampered by the destruction of most of Mr. Yoo’s emails as well as many of Mr. Philbin’s from the period when the torture memos were being drafted.
The destruction of emails from such high-ranking officials related to such a critically important matter clearly violates the agency’s obligations under the Federal Records Act (FRA). Among other things, the FRA requires agencies to preserve agency records and maintain safeguards against their removal or loss. The destruction of the key emails may also violate criminal laws, particularly if the destruction was intended to impede the investigation into the origin and preparation of the torture memos.
CREW Executive Director Melanie Sloan stated, “Given the disappearance of millions of Bush White House emails, we shouldn’t be surprised that crucial emails also disappeared from the Bush Justice Department.” Sloan continued, “The question now is what is the Attorney General going to do about it? Even if Mr. Yoo and Mr. Philbin did not violate their professional obligations by writing the torture memos, they – or others seeking to hide the truth -- may have broken the law by deleting their emails.”
Click here to read CREW’s letter to Attorney General Holder.National Archives, Watchdog Demand DOJ Probe Destruction of John Yoo's Emails
Friday 26 February 2010
by: Jason Leopold, t r u t h o u t | Report
(Photo: YooTube; Edited: Lance Page / t r u t h o u t)
The National Archives and a watchdog group sent letters to the Justice Department (DOJ) Thursday demanding an investigation into the destruction of John Yoo's emails in the summer of 2002, when he and other government attorneys prepared and finalized legal memoranda for the CIA that redefined torture and authorized interrogators to brutalize war on terror detainees.
The Federal Records Act (FRA) requires the preservation of government documents. Records cannot be destroyed unless approved by the National Archives and Records Administration (NARA). According to the DOJ's web site, emails fall under FRA if they pertain to government business.
Last week, the DOJ's Office of Professional Responsibility (OPR) released a long-awaited report into the legal work former Office of Legal Counsel (OLC) attorneys Yoo and Jay Bybee did for the Bush administration on torture. Yoo currently works as a law professor at UC Berkeley and Bybee received a lifetime appointment as a federal judge on the Ninth Circuit Court of Appeals.
Legal opinions written by Yoo in August 2002 and signed by Bybee cleared the way for the Bush administration to subject detainees to the near drowning of waterboarding and other brutal treatment at the hands of CIA interrogators.
Waterboarding and some of the other interrogation techniques sanctioned by the Bush administration, such as slamming detainees against walls and depriving them of sleep, have long been considered acts of torture and have been treated and prosecuted as war crimes. However, Yoo - working closely with Bush administration officials - claimed that the techniques did not violate US criminal laws and international treaties forbidding torture.
Further, Yoo asserted that Bush's presidential powers were virtually unlimited in wartime, even a conflict as vaguely defined as the war on terror.
But Yoo, the report concluded, was found to have "committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice."
Bybee was found to have "committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice." OPR investigators deemed this to be a violation of "professional standards" and recommended that Yoo and Bybee be referred to state bar associations where they could have had their law licenses revoked. Career prosecutor David Margolis, however, downgraded the criticism to “poor judgment," which means the DOJ now won't make the referral.
The voluminous report noted, however, that while OPR investigtors were initially provided us with a relatively small number of emails, files, and draft documents," it became "apparent, during the course of our review, that relevant documents were missing..."
OPR "requested and were given direct access to the email and computer records of REDACTED, Yoo, [Deputy Assistant Attorney General Patrick] Philbin, Bybee, and [fomer OLC head Jack] Goldsmith" during the course of the investigation into the creation of the torture memos. But OPR investigators said their probe was “hampered by the loss of Yoo's and Philbin's email records."
OPR investigators said they were told that most of “Yoo's email records" as well as "Philbin's email records from July 2002 through August 5, 2002 - the time period in which the Bybee Memo was completed and the Classified Bybee Memo ... was created" were deleted and "reportedly" not recoverable. The deleted emails also included other relevant documents the OPR needed to assist its investigation.
In a letter sent Thursday to Jeanette Plante at the DOJ's Office of Records and Management Policy, Paul Wester, director of the Archives' modern record program, said, in accordance with federal rules governing the preservation of records, if the “DOJ determines that an unauthorized destruction has occurred, then DOJ needs to submit a report to the [National Archives and Records Administration ..."
Wester requested a response within 30 days. A DOJ spokesperson was unavailable for comment.
The destruction of Yoo's and Philbin's emails also caught the attention of watchdog group Citizens for Responsibility and Ethics in Washington (CREW), which had waged a years-long legal battle with the Bush administration over its destruction of tens of millions of emails and failed efforts to take steps to recover the documents and preserve others.
Melanie Sloan, CREW's executive director, said Thursday, “given the disappearance of millions of Bush White House emails, we shouldn't be surprised that crucial emails also disappeared from the Bush Justice Department."
“The question now is what is the Attorney General going to do about it?" she said.
Sloan also sent a letter sent to Attorney General Eric Holder Thursday calling for a criminal investigation into the matter, a request that will likely go unfulfilled given the Justice Department's and the Obama administration's unwillingness to further delve into the previous administration's alleged crimes.
She said such an inquiry is warranted, however, and compared the destruction of emails with the CIA's destruction of torture tapes, which led to a criminal investigation and the appointment of a special prosecutor by former Attorney General Michael Mukasey. That probe is ongoing.
"The destruction of emails from high-ranking officials such as Messrs. Yoo and Philbin related to a subject of critical important to the Department of Justice and the nation as a whole clearly violates FRA," Sloan's letter to Holder said.
Indeed, the DOJ's web site said emails are federal records if it:
- Documents agreements reached in meetings, telephone conversations, or other E-mail exchanges on substantive matters relating to business processes or activities
- Provides comments on or objections to the language on drafts of policy statements or action plans
- Supplements information in official files and/or adds to a complete understanding of office operations and responsibilities
The DOJ rules for preserving records also said "the unlawful removal or destruction of federal records" can result in "criminal or civil penalties, fines and/or imprisonment."
Sloan, in her letter to Holder, said, "the apparent failure of the Department of Justice to take any action in the face of knowledge that crucial records had been destroyed reflects a patent disregard of mandatory federal record keeping laws ... Even if Mr. Yoo and Mr. Philbin did not violate their professional obligations by writing the torture memos, they - or others seeking to hide the truth - may have broken the law by deleting their emails."
Last December, CREW and the historical group the National Security Archive announced that they entered into a settlement with the Obama administration over the loss of Bush administration emails.
Under the terms of the agreement, 94 days of missing emails will be restored. That includes emails from the Office of the Vice President that were previously lost and unrecoverable and were subpoenaed by Patrick Fitzgerald, the special prosecutor appointed to probe the unauthorized leak of covert CIA operative Valerie Plame Wilson. This time frame also coincided with litigation surrounding the release of documents related to former Vice President Dick Cheney's Energy Task Force meetings.
The emails will be sent to NARA. But whether they contain answers to lingering questions about the CIA leak or Cheney's energy task force meetings will not be known for years, as the documents will not be immediately available for public view.
Congressional Hearing
The destruction of Yoo's and Philbin's email was one of the first issues raised Friday during a Senate Judiciary Committee hearing, where Acting Deputy Attorney General Gary Grindler is currently testifying about the OPR report.
"Have [the emails] disappeared? If they have, and if they have been destroyed, either the Yoo emails, the Philbin emails, will the [Justice Department] make ultimate determination whether the destruction was criminal, in violation of the criminal statutes, which seem fairly clear?" Judiciary Committee Chairman Patrick Leahy (D-Vermont) asked Grindler.
Grindler testified that he still needs to gather information from the "information technology experts, including all of the questions of what occurred, what the policies are, and what the archive system is. And at that point I'll be in a position to evaluate whether anything additional needs to be done."
Grindler said the report does not "suggest there was anything nefarious" about the fact that Yoo and Philbin's emails were not turned over to OPR investigatiors and he noted that the report "does include a review of some of Mr. Yoo's emails."
But Leahy said the episode was cause for concern given that other Bush administration officials were found to have destroyed emails in violation of the Presidential Records Act during time frames that coincided with the lead up to the invasion of Iraq, the leak of Plame's covert status and other scandals that engulfed the Bush White House.
"All I'm saying is that the report doesn't have a complete lack of his e-mails," Grindler said. But as soon as I learn the facts regarding this, I will provide appropriate information back to this committee...If they are retrievable, I will direct [technical staff] to retrieve them."
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