Thursday, January 29, 2009

Obama Order to Close Secret CIA Prisons Overseas Has a Big Loophole In It

Little-Noticed Exception in Executive Order Allows CIA to Keep Terror Suspects in 'Temporary' Detention Sites Abroad, Pending Future Prosecution in the U.S. or in Other Countries; Loophole Shows Obama Not Completely Reversing Bush Policy

President Obama has ordered the closure of the controversial detention camp at Guantanamo Bay, Cuba (pictured above) within a year and other centers overseas operated by the Central Intelligence Agency. But a little-noticed provision in the president's executive order carves out an exception: It allows the agency to maintain "temporary" detention facilities overseas in the event of new terror suspects being captured and ultimately tried either in the United States or sent to other countries where they are wanted on terrorism charges. (Photo courtesy U.S. Department of Defense)

(Posted 5:00 a.m. EST Thursday, January 29, 2009)


The Washington Times

President Obama's executive order closing so-called "black sites" operated by the Central Intelligence Agency contains a little-noticed exception that allows the spy agency to continue to operate temporary detention facilities abroad.

The provision illustrates that the president's order to shutter foreign-based prisons, known as black sites, is not airtight and that the CIA still has options if it wants to hold terrorism suspects for several days at a time.

Current and former U.S. officials, who spoke to The Washington Times on the condition that they not be identified because of the sensitivity of the subject, said such temporary facilities around the world will remain open, giving the Obama administration the opportunity to seize and hold suspected terrorists.

The detentions would be temporary. Suspects either would be brought later to the United States for trial or sent to other countries where they are wanted and can face trial.

The exception is evidence that the new administration, while announcing an end to many elements of the Bush "war on terror," is leaving itself wiggle room to continue some of its predecessor's practices regarding terrorist suspects.


According to the executive order, "The terms 'detention facilities' and 'detention facility' in section 4(a) of this order do not refer to facilities used only to hold people on a short-term, transitory basis."

Analysts inside and outside government say this refers to so-called "safe houses," which are buildings where operatives can go to protect themselves from pursuers or can hide people they have taken into custody.

"This executive order does not close down all operations. There are still facilities on a temporary basis, often called safe houses, for holding someone for a matter of days," an administration official said.

Ken Gude, the associate director of international rights and responsibilities at the Center for American Progress, said the temporary facilities operated by the CIA should not be confused with the Bush administration's black sites.

"My understanding is that these types of temporary facilities can be in no way described as a prison," Mr. Gude said. "They are temporary holding facilities that the CIA has used in the past for decades, ... often parts of exchange agreements with other foreign intelligence agencies."

"For example, we may have an agreement with the Pakistanis, where we agree to pick someone up and we need a place to hold them temporarily while we decide what is the next appropriate course of action," he said. "This is not like the so-called black site prisons that we heard about as part of the extraordinary rendition program."


Michael Kraft, a former senior adviser at the Office of the Coordinator for Counterterrorism at the State Department, said the temporary facilities could be used for any number of reasons.

"A scenario might be, someone is picked up in Country X, and maybe for logistics reasons, we hold him somewhere else, while a plane with larger fuel tanks is prepared to take him to his final destination," said Kraft, who retired in 2004.

Duane Clarridge, who founded the CIA's Counterterrorism Center, said the temporary facilities may be used for interrogations.

"It seems to me that they will take down terrorist suspects, bring them to a safe house, which is acquired on a temporary basis and controlled by the CIA or the military, where they interrogate the suspect over a period of days before making a decision on future disposition," Clarridge said.

"We don't know what that is," he continued. "It could be a variety of things. It could be turn him over to the country of origin, or for standing trial in a third country, or release.


The practice of moving terrorist suspects abroad, called rendition, began during the Reagan administration and escalated under President Bill Clinton. After the September 11, 2001, terrorist attacks in New York and Washington, the Bush administration began classifying terrorist suspects as "enemy combatants" and holding them indefinitely without formal charges or the protections afforded prisoners of war under the Geneva Conventions.

The closure of black-site prisons by Obama was part of a series of orders issued last week that included closing the detention facility at Guantanamo Bay, Cuba, and other measures to undo the previous administration's war on terrorism.

The president revoked all executive directives issued by the CIA between September 11, 2001 and the day of his inauguration on January 20 that have been used to justify harsh interrogation techniques, which critics have called torture.

Obama also revoked Executive Order 13440, which declares al-Qaida and Taliban fighters to be "enemy combatants" and therefore not protected by the Geneva Conventions.


The CIA practiced rendition long before the 9/11 attacks and in some cases sent suspected terrorists to countries where human rights groups have claimed they were tortured.

The most notorious of those cases is that of Maher Arar, a Syrian-born Canadian. In September 2002, Arar was on a stopover at New York's Kennedy Airport en route back to Canada from a vacation in Tunisia when U.S. officials detained him, claiming he had links to al-Qaida, and deported him to his native Syria, even though he was carrying a Canadian passport.

When Arar returned to Canada more than a year later, he said he had been tortured during his incarceration in Syria and accused American officials of sending him to his native country knowing that Syrian officials practice torture.

Arar and his family, who live in Kamloops, British Columbia, are seeking compensation from the Canadian government for his abrupt deportation and imprisonment in Syria. A lawsuit by Arar against the U.S. government was dismissed on the grounds of U.S. government immunity.

The issue of rendition will be one of the policies studied by a Cabinet-level special task force on interrogation and transfer policies.


While the CIA operated special prisons overseas for high-value al-Qaida and Taliban detainees, the agency holds no such detainees in custody today, two U.S. officials said.

The last person in the CIA detention program was Muhammad Rahim, purported to be a driver for Mullah Muhammad Omar, the leader of the Taliban that governed Afghanistan from 1995 until it was overthrown in a U.S.-led invasion in December 2001, two months after the 9/11 attacks.

Rahim was transferred to the Guantanamo Bay prison on March 14 of last year and remains there today.

One of the two officials, when asked about the executive order Tuesday, said: "The wording seems to preserve the ability to capture terrorists. But long-term detention by the CIA is out."


The loophole for safe houses worries the American Civil Liberties Union, which has pressed for the closing of Guantanamo Bay and the black sites.

"This is a place where what we all understood to be the CIA's secret prison system with prisons in places like Poland and Thailand is shut down here, and there is no future detention authority to operate those facilities," said Christopher Anders, senior legislative counsel for the ACLU.

"But there is a provision on some kind of short-term detention authority, and our position is that the CIA should have no detention authority," Anders said. "If President Obama has taken the CIA out of the prison business, he should also take the CIA out of the short-term jailer business as well."

(The Canadian Broadcasting Corporation contributed to this report.)

# # #

Volume IV, Number 8
Special Report Copyright 2009, The Washintron Times, LLC.
The 'Skeeter Bites Report Copyright 2009, Skeeter Sanders. All rights reserved.


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Monday, January 26, 2009

Bush's Warrantless Spying Program Cast Far Wider Net Than Previously Thought; Media, Journalists and Bloggers Targeted

Former U.S. Intelligence Official Reveals Bush Administration Indiscriminately Eavesdropped on All Americans' Telephone, Internet and Fax Communications Without Court Warrants -- Far Exceeding the Scope of a Similar 1970s Program Under Nixon That the Supreme Court Declared Unconstitutional

It was only a matter of time before the full extent of former President George W. Bush's warrantless electronic surveillance program would be exposed following his departure from office. But when a former U.S. intelligence official who helped The New York Times reveal the program's existence three years ago appeared on MSNBC's "Countdown with Keith Olbermann" just a day after Barack Obama was sworn in Tuesday as Bush's successor, he dropped a bombshell: The program was far more extensive than previously thought, gathering data on all Americans' electronic communications -- and specifically targeting news organizations, journalists and bloggers. (Image courtesy

(Posted 5:00 a.m. EST Monday, January 26, 2009)


Former President George W. Bush's highly controversial warrantless electronic eavesdropping program was far more extensive than previously thought, indiscriminately gathering data on all Americans' telephone, Internet and fax communications without court warrants -- with particularly intensive scrutiny placed on news organizations, journalists and bloggers -- according to a former U.S. intelligence official.

Russell Tice, a former signals intelligence officer for the super-secret National Security Agency, said that despite the Bush administration's claims to the contrary, "The NSA had access to all Americans' communications, faxes, phone calls and their computer communications -- and it didn't matter whether you were in Kansas in the middle of the country and you never made any . . . foreign communications at all. They monitored all communications."

Appearing on MSNBC's "Countdown with Keith Olbermann" on Wednesday -- just a day after Barack Obama was sworn in as the nation's 44th president -- Tice, who was one of the sources who helped The New York Times reveal the program's existence three years ago, said he had warned Congress in 2005 that the program violated the Fourth Amendment of the Constitution and the 1978 Foreign Intelligence Surveillance Act.

That action cost Tice his job -- and led to what he said was a campaign of harassment and intimidation by the Bush administration against Tice and other whistleblowers.

If Tice's accusations are confirmed, then the scope of the Bush administration's warrantless eavesdropping program went far beyond that of a similar program implemented in the early 1970s by the Nixon administration against domestic radicals and other opponents of the U.S. war effort in Vietnam -- a program the Supreme Court unanimously declared unconstitutional in 1972.


Although Tice "has already stood up for truth" by being one of the sources for the Times expose of the Bush administration's "eavesdropping on American citizens without warrants," Olbermann told viewers, the former NSA official waited until now to come forward publicly and reveal the full extent of the program, fearing harsh reprisals if he had done so while Bush remained in office.

Tice said that part of his job was to monitor the telephone calls, e-mails, text messages, faxes and other electronic communications of organizations that had nothing to do with protecting the country against terrorism, ostensibly to rule them out as potential threats. "What I was finding out, though, is that collection [of data] on those organizations was [happening] 24/7, you know, 365 days a year -- and it made no sense," he told Olbermann.

Asked by Olbermann what organizations were the subject of monitoring, Tice revealed that the eavesdropping included "U.S. news organizations, reporters and journalists."

"Is there a file somewhere of every e-mail sent by all the reporters at The New York Times?" Olbermann asked. "Is there a recording somewhere of every conversation I've had with my little nephew [who lives] in upstate New York?"

"If it was involved in a specific avenue of collection, it would be everything," Tice replied. "Yes, it would be everything."

Tice added that while he was sure that the collection "was digitized and put on databases somewhere," he didn't know what was done with the information beyond that point.

Tice also told Olbermann that the NSA "tailored some of their briefings" with the House and Senate committees on intelligence "to try to be deceptive, whether to a congressional committee or someone [the agency] didn't want to know what was really going on.

"There'd be a lot of bells and whistles in a briefing and quite often the meat of the briefing was deceptive," he said.

Asked why he decided to come forward, Tice replied, "I raised my hand, just like the president, and my oath was to support and defend the Constitution -- not the director of an agency, not a classification on a piece of paper, but the Constitution of the United States. These things that were happening were against the law."


While Tice's revelations on "Countdown" marked the first time the former NSA analyst had appeared in public, his efforts to halt what he considered to be illegal actions by the Bush administration had been ongoing for just over three years.

On December 18, 2005 -- two days after the Times story was published -- Tice sent a letter to both the Senate and House intelligence committees, in which he characterized the NSA spying as "akin to violating a sacred oath," the alternative news site AlterNet reported Saturday in its own story about the former NSA analyst's MSNBC appearance.

The Web site quoted from Tice's letter:

"As a Signals Intelligence (SIGINT) officer, it is continually drilled into us that the very first law chiseled in the SIGINT [is] equivalent of the Ten Commandments: 'Thou shall not spy on American persons without a court order from FISA [the Foreign Intelligence Surveillance Court].' This law is continually drilled into each NSA intelligence officer throughout his or her career. The very people that lead the National Security Agency have violated this holy edict of SIGINT . . ."

The Tice letter went on:

"In addition to knowing this fundamental commandment of not violating the civil rights of Americans, intelligence officers are required to take an oath to protect the United States Constitution from enemies both foreign and domestic. It is with my oath as a U.S. intelligence officer weighing heavy on my mind that I wish to report to Congress acts that I believe are unlawful and unconstitutional. The freedom of the American people cannot be protected when our constitutional liberties are ignored and our nation has decayed into a police state."


The following night, Tice appeared on "Countdown" again, this time accompanied by James Risen, the New York Times reporter who broke the NSA wiretapping story.

Risen, who won a 2007 Pulitzer Prize for his expose and has since co-written a book about the scandal with fellow Times reporter Eric Lichtblau, told Olbermann that he had little doubt that he became a target of government surveillance.

Risen told Olbermann that although he did not know which agency had him under surveillance, "what I do know for a fact is that the Bush administration got my phone records . . . We know for a fact that they showed my phone records to other people in the federal grand jury, and we have asked the court to investigate that."

Risen was subpoenaed by a federal grand jury to try to force him to reveal his confidential sources for his book, State of War: The Secret History of the CIA and the Bush Administration.

Risen is one of several top journalists who were, according to Tice, placed under continuous electronic surveillance, including The Washington Post's Bob Woodward, CNN's Christiane Ananpour, MSNBC's Chris Matthews and Olbermann, Newsweek magazine's Michael Isikoff and The New Yorker magazine's Lawrence Wright, to name a few.

Risen says he believes that the point of the program's spying on journalists was not so much to intimidate them from exposing questionable government policies, but rather to intimidate their whistleblowing sources into silence. "We [journalists] have a large organization to support us . . . whistleblowers don't have that," he said.

"It's [the surveillance] aimed at frightening people in the government from talking . . . to have a chilling effect on potential whistleblowers in the government to make them realize that there's a Big Brother out there that will get them if they step out of line," Risen continued.


In the days following the MSNBC broadcast, The 'Skeeter Bites Report has subsequently learned that the Washington bureau of the Qatar-based al-Jazeera TV news network came under the closest scrutiny of all media organizations.

Al-Jazeera, which launched an English-language channel in November 2006, has long been accused by Bush administration officials -- particularly former Defense Secretary Donald Rumsfeld -- of being a propaganda tool for the al-Qaida terror network, because its Arabic-language channel frequently received audio and video recordings from Osama bin Laden and other al-Qaida leaders.

In 2003, as the U.S.-led invasion of Iraq unfolded, an al-Jazeera correspondent was killed when a missile fired by a U.S. warplane struck the al-Rashid Hotel in Baghdad, which housed the network's bureau and scores of other foreign journalists -- the same hotel from where CNN broadcast live, albeit audio-only, coverage of the opening hours of the 1991 Gulf War. The Arab network to this day believes that its Baghdad bureau was deliberately targeted.

Bush even considered sending U.S. warplanes to bomb al-Jazeera's Qatar headquarters in 2004 but backed off after vehement opposition by then-Prime Minister Tony Blair of Britain, according to a leaked British government memorandum that made front-page banner headlines in London.

Ironically, al-Jazeera's English-language network experienced a dramatic 600 percent increase in worldwide viewership during Israel's 22-day offensive in the Gaza Strip -- with 60 percent of that increase coming from American viewers, despite the channel being available in the U.S. only on the Internet and on three cable systems, according to's Alexa Web tracking site.

Just as CNN scooped the world by having the only live coverage from Baghdad during the opening hours of the Gulf War, al-Jazeera scooped the world by having the only live coverage -- with pictures -- from inside Gaza throughout the 22-day Israeli offensive, while other global TV networks were barred by Israeli authorities from sending reporters into the densely-populated strip.


Since its inception in December 2005 -- just a week before the Times revealed the Bush administration's warrantless eavesdropping program's existence -- The 'Skeeter Bites Report has pointed out repeatedly that the program was every bit as unconstitutional as a similar warrantless spying program instituted in the early 1970s under then-President Richard Nixon.

Nixon's Justice Department, under then-Attorney General John Mitchell, had overheard telephone conversations of anti-Vietnam War activists and other domestic radicals "to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of government."

Mitchell argued that the surveillance was lawful, even though it was conducted without prior judicial approval, "as a reasonable exercise of [Nixon's] power, exercised through [Mitchell], to protect the national security."

The Nixon program was unanimously declared unconstitutional by the Supreme Court in 1972. The justices ruled that it violated the Fourth Amendment's ban on "unreasonable searches and seizures" by the government.

Justice Lewis Powell, writing for the court, declared that "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses...

"These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillance may be conducted solely within the discretion of the Executive Branch," Powell continued. "The Fourth Amendment does not contemplate the executive officers of government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate and to prosecute.

"But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks," Powell wrote."The historical judgement, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressure to obtain incriminating evidence and overlook potential invasions of privacy and protected speech."


The high court's unanimous decision -- which covered only domestic intelligence -- was bolstered in 1975 by an equally unanimous ruling by the U.S. Court of Appeals for the District of Columbia, the nation's second-highest court, which declared the Fourth Amendment's ban on warrantless domestic spying also applied to foreign intelligence gathering by the government on U.S. soil.

The seven-member appeals court ruled that even where foreign affairs and national security were involved, the government must obtain court warrants before it can eavesdrop on the communications of domestic organizations or individual U.S. citizens who were neither agents of or collaborators with foreign powers.

Based on the appeals court's unanimity under the Fourth Amendment -- which mirrored that of the Supreme Court's decision three years earlier -- the administration of then-President Gerald Ford chose not to appeal to the Supreme Court, apparently fearing that it would lose. Instead, Ford ordered the Justice Department to comply with the court's decision.

Ford even indicated that he would support legislation in Congress to require court warrants for all electronic eavesdropping by the government -- in part, paving the way for the passage of the Foreign Intelligence Surveillance Act a year after Ford left office in 1977.

Yet only the American Civil Liberties Union -- and this blogger -- appear to have remembered the fact that the Bush warrantless spying program is, at the very least, every bit as questionable constitutionally as the Nixon program of nearly four decades ago. The ACLU, in fact, has a lawsuit pending in U.S. District Court in New York to have the program struck down under the Fourth Amendment.


However, the ACLU lawsuit could be rendered moot if the Obama administration acts to either halt the program or -- more likely -- force the NSA and other intelligence-gathering agencies to comply with the Constitution and FISA law and obtain court warrants.

In his first few days in office, President Obama has so far said nothing, at least publicly, about the NSA spying. Tice told Olbermann that he even volunteered his services to the Obama team during the 2008 election campaign, but that "they never really utilized me."

Having been in power for only a week, it's too early to know what the new administration will do. Even the ACLU has been preoccupied with the new administration's decisions regarding the closing of the Guantanamo Bay detention camp in Cuba and Obama's executive orders halting interrogation tactics against terror suspects that he has publicly denounced as torture.

There is also what appears to be an increasing likelihood of a fight in the Senate over the nomination of Eric Holder as the nation's next attorney general.

Some conservative Senate Republicans -- hard-line Bush loyalists -- are not-so-subtly raising the threat of a filibuster to block Holder's confirmation unless he agrees not to prosecute members of the Bush administration for alleged war crimes stemming from the treatment of terror suspects at Guantanamo Bay and the Abu Ghraib prison in Iraq.

Not to mention the Bush administration's warrantless spy program.

It remains to be seen whether these conservatives will make good on their filibuster threat, running the risk of being accused of obstructionism, even blackmail, against the new administration -- and whether they'll have enough votes on the Senate floor to sustain it.

But one thing remains clear: The Obama administration -- however great its desire to usher in a climate of bipartisan cooperation and end the bitter rancor that has poisoned Washington for the past 30 years -- has a legal obligation to get to the bottom of the Bush administration's illegal and unconstitutional activities and hold its officials accountable for those activities, regardless of the political consequences.

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Volume IV, Number 7
Copyright 2009, Skeeter Sanders. All rights reserved.


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