EPIC Appeals FOIA Decisions Concerning Body Scanner Information

Electronic Privacy Information Center – April 16, 2013

EPIC has filed appeals in two Freedom of Information Act cases seeking documents related to airport body scanners from the Department of Homeland Security and the Transportation Security Administration.

EPIC filed FOIA requests with the agencies seeking records related to radiation risks from body scanners and the threat detection software the machines use.

The TSA is currently developing formal rules for the use of body scanners in response to a court order in one of EPIC’s previous cases.

Body scanners allow routine digital strip searches of individuals who are not suspected of any crime.

For more information, see EPIC: Radiation Risks lawsuit and EPIC: ATR lawsuit, and EPIC: Suspension of Body Scanner Program.

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• Judge: DHS Must Release Body Scanner Safety Reports (reason.com)
• Letter From a Screener: So We Found a Suicide Bomber With The Full Body Scanner: Now What? (takingsenseaway.wordpress.com)

White House wins fight to keep drone killings of Americans secret

RT | January 3, 2013

A federal judge issued a 75-page ruling on Wednesday that declares that the US Justice Department does not have a legal obligation to explain the rationale behind killing Americans with targeted drone strikes.

United States District Court Judge Colleen McMahon wrote in her finding this week that the Obama administration was largely in the right by rejecting Freedom of Information Act (FOIA) requests filed by the American Civil Liberties Union and The New York Times for materials pertaining to the use of unmanned aerial vehicles to execute three US citizens abroad in late 2011 [pdf].

Anwar al-Awlaki and Samir Khan, both US nationals with alleged ties to al-Qaeda, were killed on September 30th of that year using drone aircraft; days later, al-Awlaki’s teenage son, Abdulrahman al-Awlaki, was executed in the same manner. Although the Obama administration has remained largely quiet about the killings in the year since, a handful of statements made from senior White House officials, including President Barack Obama himself, have provided some but little insight into the Executive Branch’s insistence that the killings were all justified and constitutionally-sound. Attempts from the ACLU and the Times via FOIA requests to find out more have been unfruitful, though, which spawned a federal lawsuit that has only now been decided in court.

Siding with the defendants in what can easily be considered as cloaked in skepticism, Judge McMahon writes that the Obama White House has been correct in refusing the FOIA requests filed by the plaintiffs.

“There are indeed legitimate reasons, historical and legal, to question the legality of killings unilaterally authorized by the Executive that take place otherwise than on a ‘hot’ field of battle,” McMahon writes in her ruling. Because her decision must only weigh whether or not the Obama administration has been right in rejecting the FOIA requests, though, her ruling cannot take into consideration what sort of questions — be it historical, legal, ethical or moral — are raised by the ongoing practice of using remote-controlled drones to kill insurgents and, in these instances, US citizens.

“The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules — a veritable Catch-22,” she writes. “I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reason for their conclusion a secret.”

Throughout her ruling, Judge McMahon cites speeches from both President Obama and Attorney General Eric Holder in which the al-Awlaki killings are vaguely discussed, but appear to do little more than excuse the administration’s behavior with their own secretive explanations.

“The Constitution’s guarantee of due process is ironclad, and it is essential — but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war — even if that individual happens to be a US citizen,” McMahon quotes Mr. Holder as saying during a March 2012 address at Chicago’s Northwestern University. “Holder did not identify which recent court decisions so held,” the judge replies, “Nor did he explain exactly what process was given to the victims of targeted killings at locations far from ‘hot’ battlefields… ”

And while both Mr. Holder and President Obama have discussed the killings in public, including one appearance by the president on the Tonight Show with Jay Leno, the Justice Department insists that going further by releasing any legal evidence that supports the executions would be detrimental to national security.

While Judge McMahon ends up agreeing with the White House, she does so by making known her own weariness over how the Obama administration has forced the court to rely on their own insistence that information about the attacks simply cannot be discussed.

“As they gathered to draft a Constitution for their newly liberated country, the Founders — fresh from a war of independence from the rule of a King they styled a tyrant — were fearful of concentrating power in the hands of any single person or institution, and most particular in the executive,” McMahon writes.

Responding to the decision on Wednesday, ACLU Deputy Legal Director Jameel Jaffer issued a statement condemning the White House’s just-won ability to relieve itself from any fair and honest explanation as to the justification of Americans.

“This ruling denies the public access to crucial information about the government’s extrajudicial killing of US citizens and also effectively green-lights its practice of making selective and self-serving disclosures,” Jameel writes. “As the judge acknowledges, the targeted killing program raises profound questions about the appropriate limits on government power in our constitutional democracy. The public has a right to know more about the circumstances in which the government believes it can lawfully kill people, including US citizens, who are far from any battlefield and have never been charged with a crime.”

The ACLU says they plan to appeal Judge McMahon’s decision and are currently awaiting news regarding a separate lawsuit filed alongside the Center for Constitutional Rights that directly challenges the constitutionality of the targeted kills.

“The government has argued that case should also be dismissed,” the ACLU notes.

In a Wednesday afternoon statement from the Times, assistant general counsel David McCraw says the paper will appeal the ruling as well.

“We began this litigation because we believed our readers deserved to know more about the US government’s legal position on the use of targeted killings against persons having ties to terrorism, including US citizens,” McCraw says.

Although she ruled against the plaintiffs, Judge McMahon, says McCraw, explained “eloquently … why in a democracy the government should be addressing those questions openly and fully.”

Related articles

• VIDEO: On CNN, Nasser Al-Awlaki Demands “Accountability” for U.S. Drone Strike That Killed His Grandson (alethonews.wordpress.com)

‘Most transparent administration’ violates federal transparency laws

RT | September 28, 2012

Nineteen out of 20 cabinet-level agencies under the Obama administration have failed to follow the requirements of the Freedom of Information Act, thereby disobeying the law that demands disclosure of public information.

White House Chief of Staff Jack Lew said in July that the Obama administration “has been the most transparent ever.” But an analysis of government requests filed by Bloomberg News has found an alarming number of transparency violations, particularly when it comes to the taxpayer-funded cost of travel by top officials.

“When it comes to implementation of Obama’s wonderful transparency policy goals, especially FOIA policy in particular, there has been far more ‘talk the talk’ rather than ‘walk the walk,’’ Daniel Metcalfe, director of the Department of Justice’s office monitoring the government’s compliance with FOIA requests, told the news agency.

In 2009, the newly sworn in President Obama promised a new standard of transparency that his administration has not upheld – even accepting awards for what he oversaw as “the most transparent administration in history.”

“I will hold myself as president to a new standard of openness… Let me say it as simply as I can: Transparency and the rule of law will be the touchstones of this presidency,” he said while welcoming his senior staff and cabinet secretaries to his office. Two years later, the administration continued to boast about its supposed transparency.

“This president has demonstrated a commitment to transparency and openness that is greater than any administration has shown in the past, and he’s been committed to that since he ran for president and he’s taken a significant number of measures to demonstrate that,” White House Press Secretary Jay Carney said in May 2011, before the president accepted an award for transparency.

But Bloomberg’s report highlights specific instances in which secrecy was a normal part of the regime. Under FOIA, the news agency requested documents from 57 federal agencies regarding taxpayer-funded travel. Only eight of 57 agencies responded within the 20-day time frame required by the Act. The other agencies are under violation of FOIA for failing to submit the documents on time.

And Eric Newtown, senior advisor at the Knight Foundation, said there should be no excuses.

“In a 24/7 world, it should take two days, it should take two hours,” he said. “If it’s public, it should be just there.”

Bloomberg eventually received documents disclosing fiscal year 2011 travel costs from about half of the agencies, although most came well past the legal deadline.

Travel costs by top Obama officials, including the transportation secretary, energy secretary, environmental protection agency administrator and homeland security chief, remain undisclosed.

The lack of public disclosure regarding travel costs of many cabinet-level top officials has become concerning since the General Services Administration’s inspector general spent $823,000 of taxpayer money on a one-day event in Las Vegas in 2010.

Another one of Bloomberg’s FOIA request also found that federal agencies have increased their use of exemptions to block the release of information under the Obama administration. Cabinet agencies employed exemptions 466,402 times during Obama’s first year in office, which is a 50 percent jump from the last year of George W. Bush’s presidency.

“I don’t think the administration has been very good at all on open-government issues,” said Katherine Meyer, a Washington attorney. “The Obama administration is as bad as any of them, and to some extent worse.”

Related articles

• Obama Cabinet Flunks Disclosure Test With 19 in 20 Ignoring Law (bloomberg.com)
• 19 Out of 20 Cabinet Agencies in the Most Transparent Administration In History Disregard Disclosure Law (reason.com)
• Testing “The Most Transparent Administration in History” (cato-at-liberty.org)

FBI ‘Primer’ Instructs Interrogators to Break Detainees Through Isolation

By Kevin Gosztola | FireDogLake | August 2, 2012

A “primer” from the Federal Bureau of Investigation (FBI) seems to encourage the use of isolation to break down prisoners in overseas prisons. Published in 2011, it advocates the use of this coercive measure to break detainees ahead of interrogations, which violates or runs contrary to FBI policy.

The American Civil Liberties Union (ACLU) obtained the “primer” through a Freedom of Information Act (FOIA) request. Devon Chaffee, Legislative Council for the ACLU, says it is the first document she has seen “that’s written by an FBI agent” and “explicitly recommends that FBI agents recommend that detainees be put in isolation.”

Here is part of the primer that led the ACLU to be concerned:

…For the safety of other detainees in the facility, detainees fresh from the battlefield should be detained in individual cells until complete assessment can be made. The assessment can be considered to be complete when the decision has been made whether to release the detainee or send him to long term detention facility. Additionally, access to anything above the baseline level of treatment provided to all detainees should be strictly controlled by the assigned Interrogator. Granting this authority and control to the Interrogator places the Interrogator in a position of power that can provide an advantage when crafting an approach strategy.

Isolation of the detainee not only ensures the safety of other detainees but also prevents the individual detainee from drawing strength from the support and companionship of other detainees It also prevents collusion on cover stories between detainees. A large part of the Interrogators advantage is the natural fear of the unknown that the detainee will be experiencing. Exposure to other detainees will mitigate that fear. You may not be in a position to influence how your subject is held, but at a minimum you should know if he has been held in a communal cell prior to interrogation…

Chaffee considers this to be problematic because “isolation was component of many of the abusive interrogations that took place” after the September 11th attacks. Isolation can lead to serious abuses in interrogation. The FBI also has a policy that prohibits the “use of coercion in interrogation” and the FBI and Supreme Court have recognized that “isolation in interrogation is an indication of coercion.” [For these reasons, the ACLU sent a letter to FBI director Robert Mueller.]

The FBI would presumably contend the isolation is only done for so-called security purposes, however, additional language in the “primer” makes it clear the isolation is intended to inflict a psychological impact on detainees so they are essentially in a state of “learned helplessness” (like what the CIA has done to detainees in their custody whom they’ve tortured).

…[D]etainees should not be held in the clothing they are captured in. Detaining a subject in his own clothing could impact negatively on the health and safety of detention facility personnel and other detainees in the facility. Having the detainee change into hospital pajamas, or some other generic clothing, and flip flops has the added benefit of removing a potential source of comfort and an anchor to the world outside the detention facility. This is an important step in the process of detaching the detainee from the outside world and replacing his concern for his cause and his colleagues with a concern for his own fate…

…In order to create the optimum conditions for a productive interview, if the policy of the facility permits, consider having your detainee placed in an individual cell several days before you begin interrogation. If you are conducting law enforcement interviews in a DOD facility, a formal request from the FBI must be made to isolate a detainee. This request must be approved by the first O-6 in the chain of command.

Keep in mind that a thorough interrogation may be a multi-session, multi-day process. Having your subject return to a communal cell between sessions is completely counterproductive. A subject returning to a communal cell will feel pressure from fellow detainees based on the duration of his absence from the cell and the knowledge that he will be questioned by his peers upon his return. Isolation of your subject removes this intangible, but extremely powerful, influence from your subject. [emphasis added]

Chaffee notes, ”There are some legitimate administrative reasons why a detainee for a limited amount of time would need to be isolated, potentially at his request or for his protection from other detainees in the facility, for instance.” But, “the way that it is described and the language that is being used” suggests the isolation is being employed to “break a detainee’s will” and that to the ACLU “seems inherently coercive.”

Also, there is no need to “separate the detainee from the entire population” if collusion is suspected. Just separate the detainee from the detainee(s) he is suspected of colluding with. And, if a decision to separate detainees needs to be made, the head of the facility should make that decision. Why should an FBI interrogator be in a position to make this decision?

It is unclear if this encouragement for isolation is re-emerging in policy. However, Chaffee argues the FBI should not be asking foreign governments or other agencies to engage in conduct that the FBI agents are prohibited from engaging in, especially when this conduct could potentially lead to human rights abuses.

A final note: creating a state of “learned helplessness” in a prisoner, a concept developed by positive psychologist Martin Seligman, can deliberately make that prisoner ill.

This post by David Dobbs over at ScienceBlogs.com (a partner with National Geographic) explains that “some studies have shown ‘learned helplessness’ to be an apt model for major depression from both a behavioral and even a neurological perspective. In a sense, then, to intentionally produce it in someone by causing them pain and distress in a situation they are powerless to change is to inflict on them a mental illness.” Inducing a state of helplessness or depression in a person through isolation—which is torture—will likely make a human very ill.

Given this scientific reality, the FBI’s ‘primer’ unmistakably encourages the cruel and inhuman treatment of prisoners.

Related articles

• Pentagon: ‘Gitmo drugged prisoners for their sake… then interrogated’ (alethonews.wordpress.com)
• FBI Interrogation Primer Encourages Prisoner Isolation (aclu.org)

Pentagon: ‘Gitmo drugged prisoners for their sake… then interrogated’

RT | July 13, 2012

A recently-released Pentagon report admits to interrogating Guantanamo Bay prisoners after administering mind-altering treatments to them – often forcibly against their will – but stresses it was not done for the purposes of interrogation.

The report by the inspector general of the US Department of Defense obtained by truth-out.org under the Freedom of Information Act, found that some Gitmo inmates were questioned while receiving prescribed psychoactive treatments.

The Pentagon has tried to justify the facility staff’s actions, saying that “nowhere in the medical records did we find any evidence of mind-altering drugs being administered for the purpose of interrogation,” as the report states on page 13.

“The detainees were not given drugs as a means to facilitate interrogation,” insisted Pentagon spokesman Army Lt. Col. Todd Breasseale.

But the report does admit that “certain detainees, diagnosed as having serious mental health conditions being treated with psychoactive medications on a continuing basis, were interrogated.”

The inspector general also notes that “numerous” inmates have complained of being medicated against their will, but adds that wardens have used treatments known as “chemical restraints” to quell the aggressive individuals.

“Some detainees were involuntarily medicated to help control serious mental illnesses,” says a former commander of the Joint Medical Group at Guantanamo.

The report further admits that drugs administered “could impair an individual’s ability to provide accurate information.”

The medication under question, known as Haldol, has been used for over 50 years, and is often administered in psychiatric wards. Several side effects including depression, suicidal behavior and heart attacks are known to exist.

The Pentagon spokesman has refused to comment about how often such substances are used at the detention center, where the US has locked up nearly 170 men, writes the Washington Post.

Being drugged-up changes nothing?

After reviewing the report, David Remes, an attorney of one of the detainees, sounded an alarm saying that there is a vast possibility that statements and evidence obtained from those using psychoactive medication cannot be used in order to justify charging detainees held at the base.

The revelations in the study have raised numerous concerns among human rights activists.

“The inspector general’s report confirms that detainees whose mental deterioration and suffering was so great as to lead to psychosis and attempts at self-harm were given anti-psychotic medication and subjected to further interrogation,” Leonard Rubenstein, a medical ethicist at Johns Hopkins Center for Public Health and Human Rights, told truth-out.org.

However, some stipulate that evidence obtained through these methods would hold up in court.

Shayana Kadidal, from the Center for Constitutional Rights says that under the system set up by the US Court of Appeals for the District of Columbia, any statements detainees made during these interrogations would be presumed accurate “even if detainees took medication that could produce unreliable information.”

Kadidal added that “the burden ends up falling upon the detainee to prove what was said wasn’t accurate if they were challenging their detention in habeas corpus proceedings.”

Obama Regime Files Midnight Brief Defending Secrecy Surrounding “Targeted Killing”

ACLU | June 21, 2012

Just before a midnight deadline, the Obama administration filed a 50-page brief this evening defending the secrecy surrounding the “targeted killing” program.  The administration writes: “Whether or not the CIA has the authority to be, or is in fact, directly involved in targeted lethal operations remains classified.”  The case concerns a Freedom of Information Act request filed by the ACLU last year for records concerning the targeted killing program generally as well as the killing of three American citizens in Yemen last year.

The following can be attributed to Jameel Jaffer, Deputy Legal Director of the ACLU:

“The notion that the CIA’s targeted killing program is still a secret is beyond absurd.  Senior officials have discussed it, both on the record and off.  They have taken credit for its putative successes, professed it to be legal, and dismissed concerns about civilian casualties.  If they can make these claims to the media, they can answer requests under the Freedom of Information Act.  The public is entitled to know more about the legal authority the administration is claiming and the way that the administration is using it.  The administration should release the legal memos that purportedly justify the targeted killing program, and it should release more information about the process by which individuals, including American citizens, are added to government kill lists.  It should also release the evidence that led the administration to kill three Americans, including a 16-year-old boy, last year.”

“We continue to have profound concerns with the power the administration is claiming and with the proposition that the President should be permitted to exercise this power without oversight by the courts. That the administration believes a power so sweeping should be exercised in secret is astounding.”

Today’s filing comes after the government sought several extensions to respond to the ACLU’s lawsuit.  In its last request for an extension, the government stated to the court that it needed further time to allow for “deliberations at the highest levels of the Executive Branch.”

The government’s brief can be found here:
www.aclu.org/files/assets/https___ecf.nysd_.uscourts.gov_cgi-bin_show_temp.pl_file10176016-0–17573.pdf

CONTACT: ACLU national, media@aclu.org

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CIA: We Do Not “Concede or Not Concede” that Waterboarding is Illegal

ACLU | March 13, 2012

On Friday, the ACLU appeared before the 2nd Circuit Court of Appeals in New York to argue that the Freedom of Information Act (FOIA) requires the CIA to release documents describing its use of waterboarding. The simple question at the heart of the hearing was this: is waterboarding an “intelligence method” that can be protected from disclosure under FOIA? We argued that the answer — of course not — is easy because even the president himself has declared that waterboarding is illegal. Exposing official misconduct to public scrutiny is the chief purpose of FOIA. But it cannot serve that purpose if even officially confirmed illegality is protectable.

The CIA disagreed and offered a truly astonishing view of what our laws on transparency were meant to protect from the public’s view. Under its theory, the agency may protect just about any type of activity — legal or illegal — as an “intelligence method,” and thus conceal such activities from the public. It does not matter that President Obama has declared waterboarding to be illegal, and it does not matter that the United States has prosecuted waterboarding as a war crime in the past. Even the most egregiously unlawful interrogation techniques could be kept secret as “intelligence methods” of the CIA.

Was the CIA really making this argument? We would soon find out that even the CIA’s lawyer seemed uncomfortable with the extraordinary breadth of the claim, resorting to smoke and mirrors to distract the court’s focus. Toward the end of the hearing, the three judges and the CIA’s lawyer recessed for a 40-minute classified session to discuss the documents we are seeking. When the public hearing resumed, the CIA’s lawyer made the mystifying claim that the CIA “does not concede or not concede” that waterboarding is illegal.

We scratched our heads trying to understand what exactly this meant. President Obama declared waterboarding to be illegal shortly after releasing the Bush administration’s torture memos in 2009. And the CIA never once disputed the unlawfulness of waterboarding in its filings in this case. The only possibility was that the government was trying to have it both ways. It wants to win this case without having to argue publicly that illegal conduct can be a protectable “intelligence method.”

At its core, the CIA’s argument is that the agency should be permitted to decide for itself which information should be released, and which should be suppressed. The agency believes that courts should simply defer to its decisions about secrecy. There is a time and place for that kind of deference, of course, but when it comes to public disclosure of the CIA’s illegal conduct, the CIA’s claim to immunity is fundamentally at odds with our system of checks and balances. Only through public scrutiny of official wrongdoing can the governed hold the government accountable. And only through robust judicial enforcement of our transparency laws will the public have access to the information necessary to do so.

Related articles

• US Government Argues Cables on Illegal CIA Waterboarding Should Remain Secret (dissenter.firedoglake.com)
• CIA Claims Release of its History of the Bay of Pigs Debacle Would “Confuse the Public.” (alethonews.wordpress.com)
• EFF Wants to Make Every Week Sunshine Week with ‘This Week in Transparency’ (eff.org)
• Sign on to Fight the CIA’s Covert Attack on Mandatory Declassification Review (nsarchive.wordpress.com)