Consortiumnews.com 
Shame on Us All
By Robert Parry
October 18, 2006



History should record October 17, 2006, as the reverse of July 4, 1776.

From the noble American ideal of each human being possessing  “unalienable rights” as declared by the Founders 230 years ago amid the ringing of bells in Philadelphia, the United States effectively rescinded that concept on a dreary fall day in Washington.

At a crimped ceremony in the East Room of the White House, President George W. Bush signed the Military Commissions Act of 2006 while sitting behind a sign reading “Protecting America.”

On the surface, the law sets standards for harsh interrogations, prosecutions and executions of supposed terrorists and other “unlawful combatants,” including al-Qaeda members who allegedly conspired to murder nearly 3,000 people on Sept. 11, 2001.

“It is a rare occasion when a President can sign a bill he knows will save American lives,” Bush said. “I have that privilege this morning.”

But the new law does much more. In effect, it creates a parallel “star chamber” system of criminal justice for anyone, including an American citizen, who is suspected of engaging in, contributing to or acting in support of violent acts directed against the U.S. government or its allies anywhere on earth.

The law strips “unlawful combatants” and their alleged fellow-travelers of the fundamental right of habeas corpus, meaning that they can’t challenge their imprisonment in civilian courts, at least not until after they are brought before a military tribunal, tried under special secrecy rules and then sentenced.

One of the catches, however, is that with habeas corpus suspended these suspects have no guarantee of a swift trial and can theoretically be jailed indefinitely at the President’s discretion. Given the endless nature of the “global war on terror,” suspects could disappear forever into the dark hole of unlimited executive authority, their fate hidden even from their families.

While incarcerated, the “unlawful combatants” and their cohorts can be subjected to coercive interrogations with their words used against them if and when they are brought to trial as long as a military judge approves.

The military tribunals also could use secret evidence to prosecute a wide range of “disloyal” American citizens as well as anti-American non-citizens. The procedures are similar to “star chambers,” which have been employed historically by absolute monarchs and totalitarian states.

Even after the prosecutions are completed, the President could keep details secret. While an annual report must be made to Congress about the military tribunals, the President can conceal whatever information he chooses in a classified annex.

False Confidence

When Congress was debating the military tribunal law in September, some Americans were reassured to hear that the law would apply to non-U.S. citizens, such as legal resident aliens and foreigners. Indeed, the law does specify that “illegal enemy combatants” must be aliens who allegedly have attacked U.S. targets or those of U.S. military allies.

But the law goes much further when it addresses what can happen to people alleged to have given aid and comfort to America’s enemies. According to the law’s language, even American citizens who are accused of helping terrorists can be shunted into the military tribunal system where they could languish indefinitely without constitutional protections.

“Any person is punishable as a principal under this chapter who commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission,” the law states.

“Any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States ... shall be punished as a military commission … may direct. …

“Any person subject to this chapter who with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign power, collects or attempts to collect information by clandestine means or while acting under false pretenses, for the purpose of conveying such information to an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished by death or such other punishment as a military commission … may direct. …

“Any person subject to this chapter who conspires to commit one of the more substantive offenses triable by military commission under this chapter, and who knowingly does any overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission … may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission … may direct.” [Emphases added]

In other words, a wide variety of alleged crimes, including some specifically targeted at citizens with “an allegiance or duty to the United States,” would be transferred from civilian courts to military tribunals, where habeas corpus and other constitutional rights would not apply.

Secret Trials

Secrecy, not the principle of openness, dominates these curious trials.

Under the military tribunal law, a judge “may close to the public all or a portion of the proceedings” if he deems that the evidence must be kept secret for national security reasons. Those concerns can be conveyed to the judge through ex parte – or one-sided – communications from the prosecutor or a government representative.

The judge also can exclude the accused from the trial if there are safety concerns or if the defendant is disruptive. Plus, the judge can admit evidence obtained through coercion if he determines it “possesses sufficient probative value” and “the interests of justice would best be served by admission of the statement into evidence.”

The law permits, too, the introduction of secret evidence “while protecting from disclosure the sources, methods, or activities by which the United States acquired the evidence if the military judge finds that ... the evidence is reliable.”

During trial, the prosecutor would have the additional right to assert a “national security privilege” that could stop “the examination of any witness,” presumably by the defense if the questioning touched on any sensitive matter.

The prosecution also would retain the right to appeal any adverse ruling by the military judge to the U.S. Court of Appeals in the District of Columbia. For the defense, however, the law states that “no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever … relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions.”

Further, the law states “no person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.”

In effect, that provision amounts to a broad amnesty for all U.S. officials, including President Bush and other senior executives who may have authorized torture, murder or other violations of human rights.

Beyond that amnesty provision, the law grants President Bush the authority “to interpret the meaning and the application of the Geneva Conventions.”

In signing the Military Commissions Act of 2006, Bush remarked that “one of the terrorists believed to have planned the 9/11 attacks said he hoped the attacks would be the beginning of the end of America.” Pausing for dramatic effect, Bush added, “He didn’t get his wish.”

Or, perhaps, the terrorist did. 

http://www.consortiumnews.com/2006/101806.html



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Published on Tuesday, April 14, 2009 by Consortium News 
Anatomy of Bush's Torture 'Paradigm'
by Ray McGovern

The prose of the recently leaked report of the International Committee of the Red Cross on torture seems colorless. It is at the same time obscene - almost pornographic.

The 41-page ICRC report depicts scenes of prisoners forced to remain naked for long periods, sometimes in the presence of women, often with their hands shackled over their heads in "stress positions" as they are left to soil themselves.

The report's images of sadism also include prisoners slammed against walls, locked in tiny boxes, and strapped to a bench and subjected to the drowning sensation of waterboarding.

How could it be that we Americans tolerate the kind of leaders who would subject others to systematic torture - yes, that's what the official report of the international body charged with monitoring the Geneva agreements on the treatment of prisoners concludes - torture.

Over the past week I have been asked to explain how this could have happened; who authorized the torture in our name? The Red Cross report lacks the earmarks of rogues or "rotten apples" at the bottom of some barrel.

This is what I have been telling those who ask:

Rather than Harry Truman's famous motto on his Oval Office desk, "The Buck Stops Here," this was a case of "The Buck Starts Here." President George W. Bush set the tone and created the framework, with strong support from Vice President Dick Cheney and Defense Secretary Donald Rumsfeld. 

The first hints of what was in store came from the President himself in the White House bunker late on Sept. 11, 2001, at a meeting with his closest national security advisers after his TV address to the nation about the terrorist attacks that morning.

The vengeful bunker mentality prevailing at that meeting comes through clearly in the report of one of the participants, Richard Clarke in his book, Against All Enemies. Describing the President as confident, determined, forceful, Clarke provides the following account of what President Bush said:

"We are at war.... Nothing else matters. ... Any barriers in your way, they're gone."

When, later in the discussion, Secretary Rumsfeld noted that international law allowed the use of force only to prevent future attacks and not for retribution, Bush nearly bit his head off.

"No," the President yelled in the narrow conference room, "I don't care what the international lawyers say, we are going to kick some ass."

‘Taking the Gloves Off'

In the weeks that followed, the air in Washington hung heavy with demons of retribution. Afghanistan was invaded in October 2001, and during a prisoner uprising on Nov. 25, a CIA officer was killed there.

A young American citizen, John Walker Lindh, was discovered among the prisoners in the area. There was not the slightest evidence that Lindh had anything to do with the killing.

But documents show that U.S. Joint Special Operations troops were told that the office of the Defense Secretary's counsel (William J. Haynes II, was Pentagon general counsel at the time) had authorized an Army intelligence officer "to take the gloves off and ask whatever he wanted" of Lindh.

Despite urgent intervention by Justice Department ethics attorney Jesselyn Radack, Lindh was not properly read his rights. Instead, the FBI agent on the scene ad-libbed in an offhand way, "You have the right to an attorney. But there are no attorneys here in Afghanistan."

Lindh had been seriously wounded in the leg. Despite that, U.S. troops put a hood over him, stripped him naked, duct-taped him to a stretcher for days in an unheated and unlit shipping container, and threatened him with death.

Parts of his humiliating ordeal were captured on film (a practice that became tragically familiar with the photos of Abu Ghraib). 

In her book, Canary in the Coalmine: Blowing the Whistle in the Case of John Walker Lindh, attorney Radack comments that official documents pertaining to this case provide "the earliest known evidence that the Bush Administration was willing to push the envelope on how far it could go to extract information from suspected terrorists."

(Because she protested, Radack was fired as Justice Department legal ethics advisor, put under criminal investigation, and even added to the "no-fly" list.)

End-Run Around Geneva

But the Bush administration was just getting started.

On Jan. 18, 2002, White House Counsel Alberto Gonzales advised the President that the Justice Department had issued a formal legal opinion concluding that the Geneva Convention III on the Treatment of Prisoners of War (GPW) does not apply with respect to al Qaeda.

Gonzales added that he understood that Bush had "decided that GPW does not apply and, accordingly, that al Qaeda and Taliban detainees are not prisoners of war under the GPW." 

On Jan. 19, 2002, Defense Secretary Rumsfeld told combat commanders that the President had "determined that al-Qaeda and Taliban individuals under the control of the Department of Defense are not entitled to prisoner of war status for purposes of the Geneva Conventions of 1949."

Secretary of State Colin Powell asked the President to reconsider his decision and to conclude, instead, that the GPW does apply to both al Qaeda and the Taliban. But Powell's protest was couched in bureaucratic politeness, rather than in anger and outrage. [See Consortiumnews.com's "Cowardice in the Time of Torture."]

The next step took the form of the fateful memorandum of Jan. 25, 2002, signed by Alberto Gonzales but drafted by counsel to the Vice President David Addington. That memo outlined for the President "the ramifications of your decision and the Secretary's [Powell's] request for reconsideration."

It described a "new paradigm" that, the writers claimed "renders obsolete Geneva's strict limitations on questioning of enemy prisoners, and renders quaint some of its provisions."

Gonzales and Addington urged the President to disregard Powell's misgivings and move ahead. But they cloaked their argument in lawyerly language that obscured what was to come.

The lawyers argued that it was "appropriate" and "consistent with military necessity" to waive Geneva regarding the treatment of al Qaeda and Taliban detainees, but they inserted assurances that the prisoners would be treated "humanely" and "in a manner consistent with the principles of GPW."

Powell Rebuffed

Brushing aside Powell's objections, President Bush adopted the Gonzales/Addington language and signed a memorandum to that effect on Feb. 7, 2002. The memo went to Vice President Cheney, Secretary of State Powell, Defense Secretary Rumsfeld, Attorney General John Ashcroft, Chief of Staff to the President Andrew Card, Director of Central Intelligence George Tenet, Assistant to the President for National Security Affairs Condoleezza Rice, and Joint Chiefs Chairman Gen. Richard Myers.

The memo amounted to an executive order, although it was not labeled as such. In it, the President alludes fulsomely to Justice Department opinions and recommendations, as well as "facts" supplied by the Defense Department.

Bush then takes clear responsibility for the decision to spurn Geneva: "I determine that common Article 3 of Geneva does not apply to either al Qaeda or Taliban detainees. ... I determine that Taliban detainees ... do not qualify as prisoners of war under Article 4 of Geneva ... and that al Qaeda detainees also do not qualify as prisoners of war."

The Feb. 7, 2002, memo bears the Orwellian title "Humane Treatment of al Qaeda and Taliban Detainees." In it, Bush lifts verbatim the language from the Gonzales/Addington memo of Jan. 25, 2002, and makes it his own.

Bush claimed, for example, "the war against terrorism ushers in a new paradigm [that] requires new thinking in the law of war."

Bush then tries to square a circle, directing (twice in the two-page memo) that "detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of GPW."

Smell Smoke?

The smoking-gun memorandum of Feb. 7, 2002, was released to the media, together with other documents, by Gonzales on June 22, 2004, but it did not receive the attention it deserved until recently.

On Dec. 11, 2008, Sen. Carl Levin, D-Michigan, and Sen. John McCain, R-Arizona, ranking members of the Senate Armed Services Committee, released, without dissent, the summary of their committee's report on the abuse of detainees.

The report's first subhead was: Presidential Order Opens Door to Considering Aggressive Techniques, and the first words of the first sentence of the first paragraph were, "On Feb. 7, 2002, President Bush signed a memorandum stating..."

Referring to the "President's order," the first paragraph adds that "the decision to replace well-established military doctrine, i.e., legal compliance with the Geneva Conventions, with a policy subject to interpretation, impacted the treatment of detainees."

"Conclusion Number One" of the Senate Armed Services Committee report states: "Following the President's determination [of Feb. 7, 2002], techniques such as waterboarding, nudity, and stress positions ... were authorized for use in interrogations of detainees in U.S. custody."

Once Bush had opened the door with his Feb. 2, 2002, memo, other actions followed to implement the President's "new paradigm."

White House lawyers worked with Deputy Assistant Attorney General John Yoo of the Office of Legal Counsel to develop constitutional theories about expansive presidential powers that effectively let Bush operate beyond the law.

The OLC traditionally is the office that tells presidents the limits of their constitutional authorities. However, in this case, Yoo collaborated with Gonzales, Addington and other White House lawyers in hammering out arguments that the administration could use to implement harsh interrogations of al Qaeda suspects.

On Aug. 1, 2002, Yoo and his OLC superior, Assistant Attorney General Jay Bybee, issued an opinion that so narrowly defined "torture" that it cleared the way for a variety of "enhanced interrogation techniques," including waterboarding, which creates a near-drowning experience.

Top-Down Torture

As the legal framework for Bush's torture policies took shape, senior officers and lower-level participants in the interrogations understood that the basis for the newly permitted harsh tactics stemmed from a presidential decision.

In a report on Abu Ghraib prisoner abuses, former Defense Secretary James Schlesinger indicated that Lt. Gen. Ricardo Sanchez, the top commander in Iraq, instituted a "dozen interrogation methods beyond" the Army's standard practice under the Geneva Convention.

Sanchez said he based his decision on "the President's memorandum," which he said allowed for "additional, tougher measures" against detainees, according to the Schlesinger report.

An FBI e-mail of May 22, 2004, from a senior FBI agent in Iraq stated that President Bush had signed an Executive Order approving the use of military dogs, sleep deprivation and other tactics to intimidate Iraqi detainees.

The FBI official sought guidance in confronting an unwelcome dilemma. He asked if FBI personnel in Iraq were required to report the U.S. military's harsh interrogation of detainees when such treatment violated Bureau standards but fit within the guidelines of a presidential Executive Order.

In sum, abundant evidence indicates that the torture techniques applied in the jail cells and interrogation chambers - the "alternative set of procedures" about which Bush boasted publicly on Sept. 6, 2006 - resulted directly from Bush's Feb. 7, 2002, memo and implementing actions by his administration.

Interrogators also were egged on by comments from Bush, Cheney and Rumsfeld regarding the "tough" treatments they favored.

One fig leaf left covering the otherwise exposed role of Bush and his top aides remains the clever inclusion of the word "humane" in the memo that made possible what the International Committee of the Red Cross condemned as "inhuman" treatment of terror suspects in U.S. custody.

There's also the-Justice-Department-told-me-it-was-legal excuse, though the evidence is now clear that the Bush administration essentially stage-managed the Yoo-Bybee opinions.

For instance, when the Yoo-Bybee opinions were withdrawn by Bybee's OLC successor, Assistant Attorney General Jack Goldsmith, Addington and other administration officials successfully pressured Goldsmith to resign and then welcomed a new OLC chief, Steven Bradbury, who reinstated the key opinions in May 2005.

And - as the evidence built of illegal torture in 2006 - the Bush administration pushed the "Military Commissions Act" through the Republican-controlled Congress with phrasing that granted a degree of retroactive immunity.

The law states that "no person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories."

That provision was interpreted as a broad amnesty for U.S. officials, including President Bush and other senior executives who may have authorized torture, murder or other violations of human rights.

The law also granted Bush the authority "to interpret the meaning and the application of the Geneva Conventions." [For details, see Consortiumnews.com's "Shame on Us All."]

However, there remain legal questions about whether the law's language would prevent prosecutions under pre-existing anti-torture laws.

The sudden appearance of the damning report by the International Committee of the Red Cross, initially given to the CIA's acting general counsel on Feb. 14, 2007, greatly complicates any rotten-apples-at-the-bottom-of-the-barrel-type disingenuousness.

In a departure from the usual diplomatic parlance, the ICRC minces not a word in referring to those who authorized torture. In the report itself, the Red Cross calls on current U.S. authorities "to punish the perpetrators, where appropriate, to prevent such abuses from happening again."

What do you suppose is holding Attorney General Eric Holder back from appointing an independent prosecutor to investigate, with a view toward rubbing out, once and for all, this shameful stain on our collective conscience?

© 2009 Consortium News
Ray McGovern works with Tell the Word, the publishing arm of the ecumenical Church of the Saviour in Washington, DC. During his career as a CIA analyst, he prepared and briefed the President's Daily Brief and chaired National Intelligence Estimates. He is a member of the Steering Group of Veteran Intelligence Professionals for Sanity (VIPS
http://www.commondreams.org/view/2009/04/14-12

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Bush officials backpedaled on terror memos in last Administrative days


WASHINGTON — In the waning days of the Bush administration, the Justice Department renounced some of its own sweeping legal justifications, which were enacted after the 9/11 attacks, for spying on Americans and for harsh interrogations of terror suspects. 

In a memo written five days before President Barack Obama took office, Steven Bradbury, the then-principal deputy assistant attorney general, warned that a series of opinions issued secretly by the Justice Department's Office of Legal Counsel "should not be treated as authoritative for any purpose."

Bradbury said he wrote the 11-page document to confirm that "certain propositions" in memos issued by the Justice Department from 2001 to 2003 "do not reflect the current views of this office." 

The memo, unusual for its critique of a current administration's legal opinions, was released by the Justice Department Monday along with eight other previously secret opinions. The disclosures came on the same day that the Obama administration confirmed that CIA officials had previously destroyed 92 tapes of terror suspects, a higher number than previously known. The tapes included interrogations that critics think constituted illegal torture.

In January, the American Civil Liberties Union urged the Obama administration to release dozens of secret Bush Justice Department memos. For years, the Bush administration refused to release them, citing national security, attorney-client privilege and the need to protect the government's deliberative process.

Critics see the release of the documents as necessary to determine whether former administration officials should be held accountable for legal opinions that justified various antiterrorism measures, including the use of waterboarding, an interrogation technique that simulates drowning.

Attorney General Eric Holder said Monday that he planned to release as many of the Bush administration's OLC memos and opinions as possible "while still protecting national security information and ensuring robust internal executive branch debate and decision-making."

"Americans deserve a government that operates with transparency and openness," he said.

The memos and opinions released on Monday portray an administration scrambling to determine what it could and could not do in the name of the war on terror.

In the early days after the attacks, the Justice Department gave the president broad authority.

In an Oct. 23, 2001, memo, for example, Justice Department lawyers John Yoo and Robert Delahunty assert that the Fourth Amendment's prohibition of unreasonable search and seizure couldn't be used to restrain domestic military operations.

Jameel Jaffer, the director of the ACLU's National Security Project, said the memo, which the ACLU had been seeking for years, was among the most revelatory of the batch of documents released on Monday. He surmised that it might've provided justification for Bush's warrantless surveillance program.

"It essentially says that war is a blank check for the president not only on foreign battlefields but also inside the United States," he said. "In some ways that memo also succinctly summarizes the administration's national security policies more generally."

However, Bradbury warns administration officials in an Oct. 6, 2008, follow-up memo that "caution should be exercised before relying in any respect" on the assertions.

Although Bradbury noted the "extraordinary — indeed, we hope, a unique — period in the history of the nation," he concluded that several legal arguments in the memo were "either incorrect or highly questionable" and "should not be treated as authoritative for any purpose."

John D. Hutson, dean and president of Franklin Pierce Law Center, said the Yoo memo gave "precious little analysis to even the slightest hint of limitations on the president's power."

"There must be some limits on what the president can do in his role as commander in chief, particularly on American soil," he said. "What if the suspect isn't a terrorist at all, but just some American walking to a mosque in Los Angeles to pray?"

In another newly released memo, the Justice Department concludes the president had the authority to transfer terrorism suspects to other countries despite concerns they could be tortured.

Experts said the March 13, 2002, memo by Jay S. Bybee, then assistant attorney general, likely provided the justification for the Bush administration's rendition of suspects to other countries.

(Margaret Talev and Tish Wells contributed to this article.) 

http://www.mcclatchydc.com/251/story/63135.html

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Obama unseals Bush-era wiretap memos
The Bush administration secretly concluded after the September 11, 2001, terrorist attacks that it had the authority to wiretap the Internet and telephone calls with virtually no limitations, restrict free speech, and use the U.S. military domestically against suspected terrorists. 

Those legal opinions came in a series of memorandums written by U.S. Department of Justice lawyers, including deputy assistant attorney general John Yoo, which were disclosed by the Obama administration on Monday. 

Although the broad outlines of the Bush administration's claims to sweeping executive powers were previously known, the newly released memorandums provide a glimpse at both the legal arguments used and the scope of the claims. 

An October 2001 memorandum (PDF-1*) by Yoo and special counsel Robert Delahunty, for instance, says that "the president has the legal and constitutional authority to use military force within the United States to respond to and combat future acts of terrorism, and that the Posse Comitatus Act does not bar deployment." 

It also envisions the possibility of censorship restrictions that could be slapped on newspapers and the Internet, saying "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully." 

A September 2001 memorandum (PDF-2**) previews what would become an extensive debate over the National Security Agency's warrantless surveillance program, saying "the president must be able to use whatever means necessary to prevent attacks on the United States; this power, by implication, includes the authority to collect information necessary for its effective exercise." 

Yoo is now a law professor at the University of California at Berkeley. Salon columnist Glenn Greenwald has suggested that Yoo could be prosecuted for war crimes; he has been sued by Jose Padilla, the American citizen who detained by the U.S. military for more than three years as an enemy combatant and was subsequently convicted by the criminal justice system. 

Some of the Bush administration's sweeping claims to unchecked executive branch powers were struck down by federal courts, including the U.S. Supreme Court--a fact that lawyers from the outgoing administration noted at the last minute in a set of memorandums that explicitly backed away from the earlier claims. 

On January 15, just days before Barack Obama took office, Steven Bradbury, principal deputy assistant attorney general, informed federal agencies that the 2001-era memos were no longer valid. 

Bradbury's memo (PDF-3***) revised the Office of Legal Counsel's opinions on topics including treaties, torture, and wiretapping, saying those "do not reflect the current views of this office." 

One 2002 memorandum (PDF-4****) hinted at how a suspect could be tortured: "So long as the United States does not intend for a detainee to be tortured post-transfer, however, no criminal liability will attach to a transfer, even if the foreign country receiving the detainee does torture him." 

"Americans deserve a government that operates with transparency and openness," said Attorney General Eric Holder in a statement on Monday. "It is my goal to make OLC opinions available when possible while still protecting national security information and ensuring robust internal executive branch debate and decision-making." 
http://news.cnet.com/8301-13578_3-10186374-38.html?tag=mncol

RELATED ARTICLE PDF FILES
*(PDF-1) http://www.usdoj.gov/opa/documents/memomilitaryforcecombatus10232001.pdf
**(PDF-2) http://www.usdoj.gov/opa/documents/memoforeignsurveillanceact09252001.pdf
***(PDF-3) http://www.usdoj.gov/opa/documents/memostatusolcopinions01152009.pdf
****(PDF-4) http://www.usdoj.gov/opa/documents/memorandumpresidentpower03132002.pdf