Category: reason

4/17/1978: Penn Central Transportation Corporation v. New York argued.

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The Black Banners (Declassified): How Torture Derailed the War on Terror After 9/11, by Ali Soufan, W.W. Norton & Co., 640 pages, $17.95

The terrorist has been captured, and the clock is ticking. FBI agents know they need to use humane interrogation methods to get the information that could stop a deadly attack. But clueless politicians in Washington want to use torture, wasting precious minutes and putting the mission at risk.

It sounds like a parody of a post-9/11 spy thriller. But it’s a scenario that keeps recurring in Ali Soufan’s autobiography, The Black Banners (Declassified). Soufan, a retired FBI agent who was pursuing Al Qaeda long before it was a household name, argues that secrecy and the thirst for torture made it harder to protect Americans. We would have been better served, he shows, if Washington had treated terrorism as a law enforcement problem, not an exception to the law.

Much of Soufan’s story has already been told, both in the heavily censored 2011 edition of his book and in the official 9/11 Commission Report. In the months before September 11, 2001, the CIA failed to give the FBI crucial information that could have stopped the attackers and saved thousands of American lives. In the years that followed, the FBI-CIA rivalry continued to hinder counterterrorism efforts.

The new edition of The Black Banners—finally fully declassified after a lengthy legal battle—paints an even more disturbing picture. FBI agents had been waging an effective fight against Al Qaeda using ordinary interrogation tactics. But after 9/11, the Bush administration unleashed torture methods that were self-sabotaging as well as immoral.

Soufan had been tracking Al Qaeda since the 1990s, building an encyclopedic knowledge of Osama bin Laden’s group. Sometimes he used this knowledge to catch suspects in a lie, flustering them and forcing them to tell the truth. Other times he got suspects to warm up to him with small talk and acts of kindness. Many terrorists knew they would have been viciously tortured by their home countries’ security services; they had no idea what to make of the fearsome FBI sending a likeable Arab Muslim to chat with them over tea.

“Acting in a nonthreatening way isn’t what the terrorist expects from a U.S. interrogator. This adds to the detainee’s confusion and makes him more likely to cooperate,” Soufan writes. “Because the interrogator is the one person speaking to and listening to the detainee, a relationship is built—and the detainee doesn’t want to jeopardize it.”

Soufan first caught an inkling of the 9/11 plot in 2000, while serving as lead investigator into the bombing of the USS Cole in Yemen. FBI agents on the ground discovered that Al Qaeda was transferring money to operatives abroad for something, and he wanted to find out what. But the CIA refused to share intelligence that, combined with the FBI’s leads, could have led to the 9/11 hijackers.

Despite its failure to stop the attacks, the CIA grew more powerful after 9/11. The United States invaded Afghanistan, where Al Qaeda was based, and captured scores of militants. These captives were treated neither as criminal suspects nor as prisoners of war but as “enemy combatants,” a legal term invented to imply that they had no rights. Some were held at Naval Station Guantanamo Bay, while the CIA disappeared others to secret black sites.

The climax of Soufan’s story occurred at one such black site and nearly led him to arrest CIA officers on the spot. Pakistani forces had captured Zayn al-Abidin “Abu Zubaydah” Muhammad Hussein, a senior official from a militant training camp in Afghanistan, and handed him to the Americans in March 2002. Soufan knew of Abu Zubaydah from a previous investigation, and he was rushed to a secret base to help interrogate the prisoner.

CIA censors selectively redacted much of what happened next from the 2011 edition of Soufan’s memoir. What remained could give readers the impression that torture helped soften up Abu Zubaydah. Only the 2020 edition tells the full, damning story.

FBI agents spent 10 long days interrogating Abu Zubaydah as medical personnel fought to keep the badly wounded militant alive. He cooperated quickly, even naming Khalid Sheikh Mohammed as the mastermind of the 9/11 attacks. The FBI also learned that Abu Zubaydah had trained and assisted many high-level members of Al Qaeda but was not a formal member of the group.

The Bush administration, which believed (and told the public) that it had captured Al Qaeda’s third-in-command, insisted that Abu Zubaydah had simply bamboozled the FBI. So the CIA turned to former Air Force trainer and psychological consultant James Elmer Mitchell. (Although he is named only by a pseudonym in Soufan’s book, Mitchell has written his own account of these events.)

Mitchell’s solution, as Soufan puts it, was to “make Abu Zubaydah see his interrogator as a god who controls his suffering.” In other words, torture.

Mitchell had never interrogated a terrorist. In fact, he had never interrogated anyone at all. His methods were not just cruel but bizarre. Abu Zubaydah was left naked and sleep-deprived as CIA officers blasted loud music into his cell. An interrogator playing the role of God would say “Tell me what you know?” only to leave the room every time Abu Zubaydah responded, “What do you want to know?” At one point, the CIA left a crayon in Abu Zubaydah cell, hoping he would spontaneously write down valuable information. Even other CIA officers on the ground were uncomfortable with these techniques. The pressure to torture came from the highest levels of the Bush administration.

Higher-ups eventually noticed that the information had stopped coming and gave Soufan permission to try his own methods. The torture stopped, and Abu Zubaydah began providing useful information again, leading to the arrest of wannabe bomber Jose Padilla.

Even this intelligence was distorted for political ends. Padilla had wanted to set off a radioactive “dirty bomb,” and the Bush administration publicly took credit for stopping an “unfolding terrorist plot” to irradiate an American city. Soufan emphasizes that Padilla was indeed a “committed terrorist” with malicious intent, but he notes that he was “a brain transplant away” from actually building a radiation weapon. The Bush administration’s statements “unnecessarily instilled fear in the American people,” Soufan writes, and “made us look foolish in the eyes of al-Qaeda.”

The CIA had another turn at Abu Zubaydah, and then the FBI got to interrogate him again. The cycle repeated a third time. Finally, the CIA brought in a coffin to terrify Abu Zubaydah with a mock burial. That was the last straw. When Soufan threatened to start making arrests, then–FBI Director Robert Mueller ordered his agents out of the black site.

Abu Zubaydah was extensively tortured after that. His mental state deteriorated, and he lost an eye. The information he provided under torture did not stop a single terrorist plot, but the Bush administration used some of it to justify the invasion of Iraq. In 2005, CIA officers destroyed videotapes of Abu Zubaydah’s interrogation in order to cover their tracks. The following year, Abu Zubaydah was transferred to Guantanamo Bay, where he told a U.S. military tribunal that he had made false statements just to make the pain stop.

Mitchell was paid millions for his services. Gina Haspel, one of the officers who destroyed evidence of Abu Zubaydah’s torture, served as CIA director from 2018 to early 2021. Abu Zubaydah, who has not been charged with a single crime, is still imprisoned in Cuba.

Soufan managed to build a rapport with several detainees at Guantanamo Bay without torture. One prisoner—who knew bin Laden’s wife, it turns out—even promised to provide more information if the FBI allowed him to call his family. Soufan agreed, but the U.S. military officers at Guantanamo Bay refused. Those officials “wouldn’t let a detainee use a phone for a minute, which would have led to bin Laden,” Soufan writes, “but they didn’t mind disregarding the U.S. Constitution” with their harsh treatment of prisoners.

In September 2002, Pakistani forces handed militants Ramzi bin al-Shibh and Hassan bin Attash to the CIA. (Bin Attash is named only by a pseudonym in the book.) Soufan was given 45 minutes to interrogate them, against the wishes of CIA headquarters. Bin Attash knew that Soufan had previously treated suspects with kindness. Deciding to cooperate, he spilled the beans on Al Qaeda’s plot to blow up an oil tanker in Yemen.

The CIA refused to believe that bin Attash was telling the truth and transferred him to an unnamed country to be tortured. Al Qaeda blew up the MV Limburg off the coast of Yemen the next month, just as bin Attash had warned. The attack killed one, wounded 12, and caused an oil spill.

Soufan left the FBI in 2005. He testified against torture to the Senate Judiciary Committee in 2009 and remains an outspoken critic of the excesses of the war on terror. And he has something to say to his detractors: “If my account was not true, they would not have tried to censor it.”

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On her show Friday night, MSNBC host Joy Reid interviewed Anthony Fauci, the White House’s top COVID-19 adviser. Reid made the following comment.

“I am one of the fully vaccinated,” she said. “I’m fully Fauci’d. The question I have is are we really going to get to the end of it? Because, Dr. Fauci, at this point it’s political. There are people who are paranoid about you. They’ve decided they don’t trust you, they think you’re trying to have the government take over their lives or put nanobots in them and Bill Gates is going to physically control them if they get the vaccine. It isn’t just hesitancy, it’s paranoia. You have Tucker Carlson basically saying that you’re not telling the truth, if you’re vaccinated there’s no reason to wear a mask anymore. You have people screaming at store clerks because they don’t want to wear masks. This is not rational at this point, Dr. Fauci. So I wonder, what do we do about the irrational resistance to doing the basics, getting vaccinated and wearing masks.”

Fauci responded by largely echoing her concerns. He eventually conceded that people who were vaccinated could have unmasked gatherings in their own homes under some limited conditions, but stressed continued mask wearing outside the home.

“I don’t understand why that freaks people out,” said Reid. “Get a cute mask and make it fashion. Just put a mask on.”

She has it exactly backward: It is Reid and Fauci who are being irrationally paranoid, not the people they are criticizing.

The available evidence suggests that people who are fully vaccinated are essentially immune from suffering serious disease or death from COVID-19. They are also extremely unlikely to contract the virus at all, which means their odds of infecting someone else are very low. Mass vaccination is the ticket to ending the pandemic, and all advocacy efforts should be directed toward encouraging people to get vaccinated. Scaring the vaccinated back into a lockdown mindset is unnecessary and unscientific.

It’s fine to say that people who are not vaccinated should continue to wear masks when occupying crowded indoor spaces with other unvaccinated folks. But outdoor post-vaccination masking is essentially a performative act. Those who no longer participate in this performance are opting out of irrational paranoia, not succumbing to it.

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From Delplanche v. Window Products, Inc., decided yesterday by Judge Ann Aiken (D. Or.):

Plaintiff worked for defendants from November 2014 until he was terminated on August 19, 2015. On December 14. 2016, he filed this action, asserting unlawful termination under the Equal Pay Act, the Fair Labors Standards Act, and various state laws. On March 14, 2018, the parties filed a Stipulated Judgment of Dismissal, which stipulated that “this case, having been compromised and fully settled, be dismissed with prejudice and without costs or attorneys’ fees to any party” ….

On April 13, 2021, plaintiff filed this motion. In it, he alleges that, after the case settled “several third-party entities pulled the case filing and all supporting documents with confidential salary information of the Plaintiff” from the District of Oregon’s “records database and the case file was then posted all over internet search engines,” for prospective employers to find. As a result, prospective employers have asked plaintiff about the case during several job interviews. But plaintiff cannot “disclose the terms and conditions of [his] discharge without violating the terms and conditions of the [2018] settlement agreement.”

Plaintiff identified at least seven third parties that “posted the case file to … multiple search engines.” When he asked them to remove the postings, six of the parties agreed to do so. One, Leagle.com, refused to remove the postings without a court order. Plaintiff also contacted Google, Bing, and Yahoo, to see if they would agree to remove Leagle.com’s postings, but the search engines also refused to do so without a court order.

Plaintiff alleges that the presence of case information on the internet, coupled with his obligations under the settlement agreement has “hindered [his] ability to be gainfully employed” and “is affecting [his] ability to provide for his family at a financial setback of over several hundred thousand dollars,” which “violates [his] civil liberties to due process.” He also asserts that the postings violate his rights to privacy under the Federal Privacy Act. Plaintiff asks the Court to “seal this case and all of its filings and documents from [the] public record” and to order third parties, including but not limited to 11 parties listed by plaintiff, to “remove the case filing” currently posted on the internet and “cease and desist from any future internet postings.”

No, said the court:

Courts have long recognized a “general right to inspect and copy public records and documents, including judicial records and documents.” This right is justified by the interest of citizens in “keep[ing] a watchful eye on the workings of public agencies.” Unless a particular court record is one “traditionally kept secret,” [such as grand jury transcripts and warrant materials in the midst of a pre-indictment investigation,] a “strong presumption in favor of access” is the starting point.

When a party seeks to seal an entire case file, as plaintiff does here, courts have required that party to meet the high threshold of showing that “compelling reasons” support the need for secrecy…. In general, “compelling reasons” sufficient to outweigh the public’s interest in disclosure and justify sealing records exist when such “court files might have become a vehicle for improper purposes,” such as the use of records to gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets. “The mere fact that the production of records may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records.”

Plaintiff’s request to seal this entire case along with all associated electronic records because potential employers’ knowledge of this lawsuit has caused them to ask difficult questions during interviews and made it hard for him to find work does not meet the “compelling reasons” standard. And plaintiff fails to cite any legal authority to suggest that it does.

Plaintiff suggests that third parties who posted records from this case on the internet violated his rights under the Federal Privacy Act …. Under the Act, “[n]o agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains. 5 U.S.C. § 522a(b). As its express terms indicate, the Act does not regulate the disclosure of records by private individuals or this Court—it applies only to the release of information by federal agencies.

Quite right.

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A Justice Department memo released shortly before President Donald Trump left office could send roughly 4,000 people who were transferred to home confinement during the COVID-19 pandemic back to federal prison.

Now, a bipartisan group of lawmakers in Congress and criminal justice advocacy groups are demanding that the Biden administration rescind that memo, arguing it would be unnecessary and cruel to those who’ve started rebuilding their lives on the outside.

The memo, issued on January 15 by the Justice Department’s Office of Legal Counsel, says that those transferred from federal prison to home confinement last year due to a provision in the Coronavirus Aid, Relief, and Economic Security (CARES) Act expanding releases of elderly and at-risk inmates will have to return to prison once the pandemic is deemed over. 

At a Senate Judiciary Committee hearing Thursday on the Federal Bureau of Prisons (BOP) response to COVID-19, Sens. Chuck Grassley (R–Iowa) and Dick Durbin (D–Ill.) questioned BOP Director Michael Carvajal about the potential re-incarceration.

“Obviously, if they can stay where they are, it’s going to save the taxpayers a lot of money, and it would also help people who aren’t prone to re-offend and allows inmates to successfully re-enter society as productive citizens,” Grassley said. 

Grassley noted that only 151 of the roughly 24,000 inmates who were transferred into home confinement since last March had violated the terms of their release.

“The president recently extended the national emergency,” Carvajal said. “There’s no rush to bring these [people] back.”

Carvajal also said the BOP is working with the laws on the books. The CARES Act did not change the statutory requirements for when a federal inmate can be transferred to home confinement.

“If they have successfully been out there, we’re going to use good judgment and common sense and work within the law to make sure we place them appropriately, Carvajal said. “We have plenty of bed space in our minimum-security camps. I simply ask that either the statute is changed, or that people understand that we’re working within the parameters we’ve been given.”

More than two dozen members of Congress sent President Joe Biden a letter last week urging his administration to reverse the memo.

“The vast majority of those people on home confinement today have reunited with their families and are working and contributing to society,” the letter says. “They were not told they would have to return to prison and forcing them to do so would be cruel and devastating. You rightly pledged to reduce the federal prison population. Sending thousands of people back to federal prison who have already proven that they do not need to be there would undermine this commitment and would undermine, not advance, public safety.”

Among those facing re-incarceration is Dennis Alba. “I was granted home confinement last May,” Alba wrote to FAMM, a criminal justice advocacy group. “I got a great job and rented an apartment a few miles from the office, and I can walk to work. I am 71, so readjusting after 19 years in fed prison takes a little time. If I have to go back to prison, I would lose everything I have worked so hard for. I NEVER would have gone through the expense of buying furniture, clothes, renting a place to live and other expenses if I know I would be returning to prison.”

FAMM, along with the American Civil Liberties Union, Prison Fellowship, the Brennan Center, and other criminal justice organizations, is also urging Biden and Attorney General Merrick Garland to rescind the memo.

And although Carvajal assured senators that the BOP is prepared to handle an influx of thousands of inmates, the BOP system has been notoriously short-staffed for years.

“We don’t have the staff,” Council of Prison Locals Southeast Regional Vice President Joe Rojas told Reuters. “We are already in chaos as it is as an agency.”

The Justice Department did not respond to requests for comment.

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