ABA targets CIA methods, secrets law

Times Staff Writer

SAN FRANCISCO -- The American Bar Assn. voted Monday to urge Congress to override a Bush administration order authorizing the CIA to use interrogation techniques such as waterboarding, and sensory and sleep deprivation.

The nation’s largest lawyers’ organization also called on Congress to give federal judges more oversight of government efforts to use the “state secrets” doctrine to throw out legal challenges to anti-terrorism programs.

The first resolution dealt with an executive order the Bush administration adopted last month allowing the CIA to use “enhanced” methods of questioning. Barbara Berger Opotowsky, executive director of the New York City Bar Assn., said the order was clearly “inconsistent with U.S. obligations” under Article 3 of the Geneva Convention, which requires humane treatment of detainees.


“The use of official cruelty has repeatedly been shown to be far from the best means of extracting truthful information,” said Opotowsky, who proposed the resolution. She noted that a U.S. Army field manual on intelligence interrogations issued last September barred the controversial interrogation techniques that will be available to the CIA.

“Unfortunately, the executive order sets a lower standard for the CIA,” she said.

Memphis lawyer Albert Harvey, a retired Marine major general, also spoke in favor of the resolution, which passed by voice vote with only a single “nay” registering in the large meeting hall at the Moscone Center here.

“When we put our troops in harm’s way, we expect other countries to treat our soldiers humanely. We can do no less,” said Harvey, who heads the Bar Assn.’s Standing Committee on Law and National Security.

Like Opotowsky, Harvey quoted an article recently published by P.X. Kelley, a former Marine commandant, and Robert Turner of the University of Virginia’s Center on Law and National Security, who in the past have been supportive of the administration’s war on terrorism. In this instance, however, they wrote that they could not “in good conscience” support the executive order, saying it affords the CIA “carte blanche to engage in ‘willful and outrageous acts of personal abuse.’ ”

By passing the resolution, the ABA’s 546-member House of Delegates paves the way for its officials to speak out in favor of legislation, testify in Congress or submit friend-of-the-court briefs. The ABA has 413,000 members nationwide.

The second resolution dealt with what ABA leaders said was the Justice Department’s growing use of the “state secrets” privilege in cases challenging administration policies in the war on terrorism. Established by the U.S. Supreme Court in 1953 in U.S. vs. Reynolds, the privilege bars the disclosure of information in court proceedings when “there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.”

The resolution passed, without opposition, just two days before the San Francisco-based U.S. 9th Circuit Court of Appeals is scheduled to hear two cases the Justice Department is attempting to have thrown out using the “state secrets” doctrine.

One case, Hepting vs. AT&T;, claims the telecommunications company violated individuals’ rights by providing customer call records to the National Security Agency’s warrantless wiretapping program. AT&T; denies wrongdoing and the government maintains that the case should be brought to a swift halt.

In the other case, Al Haramain Islamic Foundation vs. Bush, lawyers for an Islamic charity assert that their clients were illegally wiretapped under the government’s Terrorist Surveillance program.

Federal district court judges in San Francisco and Portland, Ore., had rebuffed government arguments to dismiss the cases, setting the stage for Wednesday’s 9th Circuit argument.

But in July, a federal appeals court in Cincinnati ruled 2-1 that several individuals and groups, including the American Civil Liberties Union, had no standing to challenge the Terrorist Surveillance program because they could not prove that they had been wiretapped. The Justice Department had relied on the “state secrets” privilege in seeking to topple the suit.

The ABA resolution urges Congress to enact legislation that would require the government to provide a full and complete explanation of its privilege claim, and to present its evidence to judges in private. The privilege would be granted “only if the court finds, based on specific facts, that the government has reasonably determined that disclosure of the evidence would be significantly detrimental or injurious to the national defense or to cause substantial injury to the diplomatic relations of the United States,” the resolution says.

Outgoing ABA president Karen J. Mathis, in her final news conference, said the resolution could curb government abuse.

“History demonstrates time and again that when government agencies have surreptitiously bypassed judges and decided on their own to tap phones and invade homes, abuses have occurred,” she said.

Los Angeles attorney Richard M. Macias, who presented this resolution, noted that the proposed legislation contained a number of safeguards.

The government, he said, could raise a “state secrets” claim early in a case and then lodge an expedited appeal if its initial efforts failed. Macias said a judge could still dismiss a case if, after reviewing evidence in chambers, he or she concluded that the government would be “substantially impaired” from defending the case without disclosing secrets.

Macias said the suggested legislation would “bring a level of consistency” to decisions in these cases by introducing judicial scrutiny that had not been required under the Supreme Court decision in the Reynolds case.

Philadelphia attorney Lawrence Fox told the delegates that the Reynolds decision was based on a lie that took five decades to unravel.

The case was brought by widows of four men who died in a plane crash. Officials told the women that they could not provide them with accident reports because the crash involved a secret electrical system being tested for the government.

Years later, Fox said, the families learned through a Freedom of Information Act request that the crash had been caused by a faulty landing gear and not a secret electrical system.

“You shouldn’t have to wait 50 years and a successful FOIA request to get the truth” blocked by government “overreaching and over-asserting,” Fox said.