Update from Venezuela on the Lost & Found Ex-Gitmo Detainee

Latest statement from Jon Eisenberg, lawyer for Jihad Diyab/Dhiab:

Andres Conteris, who is a member of the U.S. human rights group Witness Against Torture and is part of an informal group of Uruguayans who have offered support to Mr. Dhiab since his arrival in Uruguay, met this morning with a member of the Venezuelan foreign ministry with regard to Mr. Dhiab. Mr. Conteris was told that the ministry is working to arrange a special visit tomorrow (Tuesday) between him and Mr. Dhiab, that the ministry is also working on finding a solution for where Mr. Dhiab will be sent, and that no decision has yet been made about where Mr. Dhiab will be sent

Mr. Conteris learned over the weekend that Mr. Dhiab’s health is seriously deteriorating. We remain concerned that he may have resumed hunger striking, but we cannot be certain of that because nobody has been allowed to visit or otherwise communicate with him. I have not spoken with Mr. Dhiab since June 5. My understanding, however, is that the Venezuelan foreign ministry will now be requesting that I be allowed to speak with Mr. Dhiab by telephone.

Mr. Conteris will address these matters at press conference to be held on Wednesday at 10:00 a.m. near the U.S. embassy in Caracas.

Who are the two mystery agencies Obama says must help review capture operations, but not targeted killings?

The May 2013 Presidential Policy Guidance (PPG), also known as the “playbook” for drone strikes outside of conventional war zones, is now mostly public, thanks to a Freedom of Information Act lawsuit by the American Civil Liberties Union. In Chapter 6 of Power Wars, I outlined the second-term interagency process for signing off on proposed targeted killing operations based on anonymous sourcing; that outline dovetails with the far more detailed description of the bureaucratic procedures this document prescribes. But there was something curious in its section about who signs off on plans to capture high-value terrorism suspects, a component of the PPG that has received far less attention.

Both capture and kill operations undergo a similar review, including a deputies committee meeting and then a principals committee meeting chaired by the president’s counterterrorism adviser, currently Lisa Monaco. And for kill operations, the agency and departments whose leaders participate in those meetings are all unredacted. They are the State Department, the Defense Department, the Joint Chiefs of Staff, the Justice Department, the Homeland Security Department, the office of the Director of National Intelligence, the Central Intelligence Agency, and the National Counterterrorism Center

ppg-kill dc

But here’s that list in the equivalent section about who participates in meetings about proposed capture operations:

ppg-capture dc

Three more agencies help decide about capture ops: the Treasury Department and two three-letter agencies who have been redacted. Why would Treasury be there for one but not the other, and who are the other two with that status, and why keep them secret even though they’re letting it all hang out about the CIA’s participation? I have a theory about who the mystery members are and why that trio gets invited to help make decisions about one type but not the other, though not about the reason for the secrecy.

My guess is that this is about additional headaches that arise only if the suspect is still alive, and that the two mystery agencies are the Federal Bureau of Investigation and the National Security Agency.

The first thing that would happen, if they captured someone alive, is that a High-value Interrogation Group (“HIG”) would interrogate the prisoner for intelligence purposes; the FBI runs the HIG. Then, typically, the FBI would bring in a “clean team” of criminal interrogators who would Mirandize the prisoner and start over with questioning for the purpose of gathering admissions that are admissible as courtroom evidence. So the FBI needs to be part of the planning process for a capture operation, because it will need to be ready to swing into action. Indeed, the deputies are supposed to talk about “the proposed plan for the detention and interrogation of the suspect,” which they could hardly do without the bureau.

The deputies are also supposed to talk about “long-term disposition options for the individual” when the intelligence interrogation is over. The preference is clearly for the U.S. to transfer the captive to some other country if that is workable, but if not, the U.S. will retain custody and try to prosecute him. That could lead to a dilemma over the need to disclose to the defense, for a fair trial, classified evidence that might reveal sources and methods–like, say, data about financial transfers gathered by the Treasury Department’s intelligence programs, or intercepted communications gathered by NSA’s surveillance programs. Indeed, another thing the deputies are supposed to talk about is whether the proposed capture operation “would interfere with any intelligence collection or compromise any intelligence sources or methods.” You could see a scenario in which a suspect is of only middling importance and it is unlikely that any other country could take custody of him, and Treasury or the NSA would prefer not to capture him in the first place if it meant risking revealing something.

But none of that would be an issue in a kill operation–there’s no one to interrogate and prosecute, so no need for the FBI, Treasury, or NSA to weigh in with any unique equities in the decision. Even if I’m right, however, I have no idea why the Obama administration would redact the FBI and NSA. (So far I’ve not gotten any answers, but I will update the post if I do.)

UPDATE 8/8/2016: The “Federal Bureau of Investigation (FBI)” was spelled out in a first reference earlier in the doc, on page 5, but the NSA does not appear in unredacted portions so would need a first reference somewhere in which it is identified as the “National Security Agency (NSA)” for this theory to be correct. On Twitter, Josh Leitzel points out that a redaction line on page 8, a page before the list of participants in capture operation meetings, seems to line up.


And also:


Lawyer asks Venezuela to let the ex-Gitmo detainee who went missing from Uruguay talk to him

In June, Jihad Diyab (also spelled Dhiab), an erratic former Guantanamo Bay detainee from Syria who was resettled in Uruguay (and who is also the plaintiff in a continuing lawsuit seeking to make public videotapes of forcefeeding sessions), said he was going to be incommunicado for the month of Ramadan. Then authorities lost track of him. This led to alarms and recriminations from Congress about sending former detainees to places like Uruguay. Late last month he showed up in Venezuela. He had taken a bus across Brazil and said he wanted to join his family in Turkey. He was arrested and supposedly is going to be deported back to Uruguay. But much remains murky about the whole episode.

Today his American lawyer, Jon Eisenberg, released this statement:




5 AUGUST 2016


Former Guantánamo Bay detainee Abu Wa’el (Jihad) Dhiab is said to be in the custody of the Venezuelan agency Servicio Bolivariano de Inteligencia Nacional (SEBIN).


The United States government held Mr. Dhiab under indefinite detention without charge or trial at Guantánamo Bay for 12 years before releasing him to Uruguay in December of 2014.  Mr. Dhiab, a long-term hunger-striker, was brutally force-fed hundreds of times before his release. A lawsuit by Mr. Dhiab, challenging the conditions under which hunger-striking Guantánamo detainees have been force-fed, ended in midstream upon his release to Uruguay—but not before a judge ordered the Obama administration to release secret videotapes of Mr. Dhiab’s force-feedings to 16 U.S. news media organizations that sued to make the videotapes public.


This coming September 8, the Court of Appeals for the District of Columbia Circuit will hear oral arguments on a U.S. government appeal resisting public release of the videotapes.


I represented Mr. Dhiab in his legal challenge to the Guantánamo detainees’ force-feeding.  I have viewed the secret videotapes under court order subject to strict government supervision, and I can attest that they are terrible to see.  More than that I am forbidden to say, because the videotapes remain classified, held under lock and key in a top-secret facility during the pendency of the U.S. government’s appeal.


I am still haunted by those images—but surely less than Mr. Dhiab himself, to whom these things actually happened, hundreds of times, in a manner that was deliberately designed to be especially painful and humiliating.


Until Mr. Dhiab went to court, Guantánamo hunger strikers were subjected to force-feeding in excessive quantities at excessive speeds amounting to a form of water torture, their limbs, waist and head bound in a specially-designed restraint chair, using excessively large nasogastric feeding tubes that frequently drew blood and were lubricated in a manner that can cause a rare form of pneumonia. The U.S. government has since ceased some of those practices, but others continue to this day at Guantánamo Bay, in violation of internationally-recognized norms of ethical medical practice and basic human rights.


This past June 5, a few hours before the start of the Muslim holy month of Ramadan, I spoke with Mr. Dhiab by telephone about the pending effort by the U.S. news media organizations to secure public release of the force-feeding videotapes.  He continued to maintain a burning desire for their public release.  He told me:  “I want these tapes to be made public so that the world can see a small part of the many forms of torture that occurred at Guantánamo Bay.”


Mr. Dhiab also told me that he was hoping for an imminent visit to Uruguay by his wife and children, whom he has not seen for 15 years.  We made plans to speak again in mid-July, because he would not be using the telephone, email, or Skype throughout Ramadan.


Shortly after I spoke with Mr. Dhiab, he disappeared from public view.  Evidently I was the last person outside Uruguay to speak with him before his disappearance.  I did not know where he was.


Nothing more was heard from Mr. Dhiab until July 26, when he surfaced in Caracas, Venezuela, presenting himself at the Uruguayan consulate there and asking to be sent to Turkey to be reunited with his family.  The next day, the Uruguayan Ministry of Foreign Affairs issued a press release stating that Mr. Dhiab had asked to be allowed to telephone “the Red Cross, his lawyer and family members,” and that he was provided the means to make those telephone calls—after which he left the consulate voluntarily.


The truth is that Mr. Dhiab never telephoned me from the Uruguayan consulate in Caracas.  I have not heard from him since June 5.


Immediately after leaving the Uruguayan consulate on July 26, Mr. Dhiab again disappeared.  News media reports state that he is now being held by SEBIN.  If that is true, his detention is incommunicado and would appear to be without legal process. I find it tragically ironic that, because of an apparent quest to be reunited with his family, he now finds himself once again being detained without charge or trial and beyond reach of the rule of law.  And I am concerned about the conditions of his current confinement and whether he might have resumed hunger-striking in protest.


I therefore respectfully call upon the Venezuelan government to afford Mr. Dhiab access to legal counsel and allow me to speak with him by telephone forthwith.


I am hopeful that Venezuela will eschew the legacy of human rights violations at Guantánamo Bay and treat Mr. Dhiab with the dignity, respect, and fairness that the U.S. government denied him for 12 years.
Jon B. Eisenberg


California State Bar No. 88278

5 August 2016




F.B.I. discloses 250 pages of internal shooting incident review reports

The Federal Bureau of Investigation has disclosed another batch of internal shooting incident review reports in response to my Freedom of Information Act lawsuit with the New York Times (pursued by the NYT’s lawyer David McCraw and the annual NYT First Amendment fellows, currently Tali Leinwand).

The names of the people who were shot are redacted unless they were killed. Fatal shooting incidents in this batch include the 2013 shooting of Anthony Meeks in Charlotte; the 2013 shooting of Tevin Hammond in Philadelphia; the 2012 shooting of Frank Eric Martinez in Los Angeles; the 2013 shooting of Jimmy Lee Dykes in Alabama (the rescue of a kidnapped child in bunker hostage rescue after a six-day siege-see the ABC News story on the link); and the 2013 shooting of James Lee DiMaggio in Idaho (the kidnapper of cheerleader, later made into a TV movie).

There are also newly available Civil Rights Division decline-to-prosecute memos for the 2013 killing of Jason Moore in Peoria (the “high school reunion” shooting); the 2012 killing of Fallacy Myers in Dayton; the 2013 killing of Scott Evans in New Market, Tennessee; the 2013 killing of Gerardo Delgato in Miami; the 2013 killing of Anthony Starnes in Richmond, Illinois; and the 2013 killing of Allen Desdunes in New Orleans.

The newly available pages are numbered in the lower right corner at NYT-816 to NYT-1082. That numbering is slightly off the PDF pages because there are several missing pages that we are still litigating over. The massive document set is below, but it’s probably easier to use in a DocumentCloud viewer, where I have indexed years and “bad shoots.”

None of these newly available reports involve “bad shoots” so I don’t immediately see a news article in them, but I’m adding them to the growing public library of such incidents that this and previous iterations of the litigation have brought to light. That library dates back to 1993.

If you come across this page and see something in these reports that is worthy of greater attention, please contact me.

Previous coverage:


Recent citations to “Power Wars”: Immigration, Forever War, and whether White House lawyers could constrain a President Trump

When you write a book–missing a lot of time with your family and flirting with walking away from a job you love in order to get it done–it is sincerely gratifying to see it find an audience. The first wave of that, of course, is reviews. The flurry for Power Wars are subsiding, although Barron’s published a nice review earlier this month by the FIU history professor Howard B. Rock. He wrote, “Power Wars should serve as a challenge to Obama’s would-be successors and an important guidebook to voters whose support they seek.” Alas he missed that there is a full index for the book online, writing that “Given the author’s prodigious research, his book’s main flaw is that it lacks an index.”

Ultimately more satisfying, though, is seeing the book start to become part of the discourse as a resource for other people who write about national security and executive power. A few days ago I blogged about the Syria “red line” episode of 2012-13, riffing off a citation to the book in a Lawfare/Just Security blog post by Ashley Deeks and Marty Lederman responding to the State Department dissent memo. Here are three other examples from the past few weeks. They span topics as diverse as the Supreme Court’s (non) ruling about President Obama’s immigration policy, the evolving nature of the Forever War against Qaeda/ISIS, and whether a President Trump’s White House counsel would check and balance him.

Peter Shane, The Atlantic, “The U.S. Supreme Court’s Big Immigration Case Wasn’t About Presidental Power,” today:

To be sure, Johnson’s program followed intense collaboration involving the White House, DHS, and the Justice Department. In Power Wars, his account of the Obama presidency, the New York Times reporter Charlie Savage explains how the White House vetted a variety of policy options regarding deferred action for undocumented immigrants. The White House was directly involved in DAPA as a policy matter, and even the legal analysis published by the Justice Department—which rejected one of DHS’s major proposals as impermissible—was developed in consultation with White House counsel. What this points to, however, is only Obama’s political accountability for DAPA, not the secretary’s underlying legal authority. For political leadership, a president is accountable in the polls, but not the courts.

Samuel Moyn, Lawfare, “Endless War Watch, Summer 2016,” June 24, expanding on his NYT review of Mark Danner’s “Spiral: Trapped in the Forever War”:

There is little or no new information in it for experts, but the national security law community should still read and ponder it. Danner’s contribution and voice are very different, for example, from Charlie Savage’s much noted Power Wars, with its new information and judicious balance.  Danner steps outside the bipartisan consensus on national security law whose current equilibrium and minor bickering set the term of Savage’s inquiry. Danner, clearly, did not simply want to split the difference between the tangling lawyers within a bipartisan consensus around the war. Instead, he offers a cri de coeur about a national security culture that has gone deeply awry. If only to verify that he is wrong, everyone who is part of that consensus, which I assume describes most of the writers for and readers of this site, should take a look.

The thesis of Savage’s book is that after some point Americans, or at least all the current president’s men and women, “were trying to fight al-Qaeda while adhering to what they saw as the rule of law” (my emphasis). Now some people might disagree that Americans have in fact adhered to the rule of law and worry about a regime in which people whom the law is supposed to regulate get to decide what the law is. (I have tried to avoid staying hungry while adhering to what I see as my weight-loss regime, and I am afraid it hasn’t worked very well either.) It once seemed like “constitutional alarmism” to complain that checks within the executive branch—such as the storied independence of the Office of Legal Counsel— were too weak, but what about now? That the legislature has been out to a very long lunch as its statutes proved infinitely elastic has long struck many as regrettable, even though it is routinely treated as inevitable.  Few people in America have considered that it is Americans who are deciding what international law says – Savage cites few if any foreigners on such questions — even though every law student learns the maxim that no man should be a judge in his own cause. But even to have such debates it is critical to grasp that the new normal is a war asserted to be legal and fought in ostensible conformity with law. Condemning the war as “state of exception” skirts this all-important fact or ignores for how long and how broadly the war has been legalized.

Andrew Rudalevige, The Washington Post/Monkey Cage, “No, White House lawyers would not prevent a President Trump from overstepping his constitutional bounds,” June 14:

Charlie Savage’s magisterial “Power Wars“ examines both administrations. “Many of the lawyers [Bush and Cheney] surrounded themselves with,” he writes, “ … embraced such sweeping views of executive power that the law was not a factor. They dispatched every hard problem with the same easy answer: The president could do whatever he deemed necessary to protect national security.”

Obama, by contrast, did not want to claim presidential prerogative, preferring to ground his actions in statute. But administration lawyers have shown great talent in finding statutory interpretations that could be used to justify Obama’s preferences.

And indeed, so have those in other administrations. Institutional pressures demand it. One of Reagan’s counsels, A.B. Culvahouse, told Borrelli et al. that the office is “the last and in some cases the only protector of the President’s constitutional privileges. Almost everyone else is willing to give those away in part, inch by inch and bit by bit. … So a lot of what I did was stand in the way of that process.” Or as one Justice Department attorney told Savage: “At the end of the day, the job was not to decide what the intelligence community needed. Our job was to help them bring the tool they said they needed up to conform with the rule of law.”

As Savage reported at the time, but details more extensively in Power Wars (see Ch. 12, part 5), various administration lawyers had diverging views on using the American military in Libya after those 60 days. Most (including OLC) seemed to think that, at the very least, the “operational tempo” would have to be dialed back, with the United States providing only support for NATO attacks rather than carrying them out.

But White House Counsel Robert Bauer, along with Koh, developed what Savage calls “a very aggressive interpretation” of the War Powers Resolution, arguing that the Libya operation did not constitute “hostilities” under the terms of the WPR. That phrase should be reserved, Obama himself said at a news  conference, for wars on the scale of Vietnam.

Thanks to all of you.

What Google Earth Shows About Guantanamo’s Super-Secret Camp 7

Gitmo labeled

UPDATED Jan. 28, 2018 with Strava fitness map data visualization insight

UPDATED Sept. 18, 2017 with updated Google Earth satellite images

UPDATED Apr. 6, 2021 with archival Google Earth satellite images


Today I read on TechCrunch that Google had figured out a way to make its satellite maps clearer, and checked Camp 7 of the Guantanamo Bay wartime prison, where the “high value” detainees who were formerly held in the Central Intelligence Agency’s black-site prisons are kept. They include Khalid Shaikh Mohammed and the other four 9/11 defendants, as well as Abu Zubaydah (the first prisoner to be waterboarded), Abd al-Rahim al-Nashiri (U.S.S. Cole defendant), and eight other men. Although I did not save a version of the image before, I’m pretty sure its resolution is indeed now clearer. I’ll make screenshots this time to preserve it for news value/comparison purposes, in case the website changes, and discuss what we can see.

First, for context, the military and intelligence community drape Camp 7 — marked on the military’s “for official use only” maps of the base as an “intelligence operations center” — with security theater. Journalists who visit the prison complex have been able to walk through Camp 5 and Camp 6, where lower-level detainees are held, but the military’s press handlers will not talk about Camp 7 – not even where it is located. In 2014, when James Connell, a defense lawyer for Ammar al-Baluchi, another defendant in the 9/11 military commission case, went to inspect his client’s cell, the military blocked out his van’s windows and drove him in circles before taking him there. (Al-Baluchi’s defense team is currently asking a military commissions judge to order the military to let the United Nations’ special rapporteur on torture visit Camp 7, a motion that I estimate has approximately zero percent chance of being granted.)

Despite all this, as I periodically have pointed out when feeling snarky/exasperated, anyone who looks at Google Maps in satellite view can see Camp 7, up in the hills about a mile northwest of the main prison complex. And now, unless I’m mistaken, we can see it a bit more clearly. So what can we see?

First, in the shot at the top of this post, I’ve marked the location of Camp 7 in the upper left hand corner. In the main complex area I’ve also marked Camps 5 and 6, along with Camp Echo (where detainees meet with their lawyers or live apart from the general population just ahead of their release), and the old, largely disused Camp Delta (which consists of now-empty Camps 1 through 4, but is still used to house prison library books and a hospital area).

Here is the closest view we can get of Camp 7:


[9/18/2017: See also updated pics at end of post.]

You can see that it has a central control area with two blocks, each of which has two outdoors recreation yards surrounded by high green tarp walls. That’s basically a smaller version of how Camps 5 and 6 work, and comports with a rare public description of Camp 7 from a military report in 2009:

Camp7 details

There’s a parking area to the east, and a path to the entrance that includes what looks like maybe a small walkbridge over a dry streambed. In 2013, Southcom wanted $49 million to build a replacement building because Camp 7 was built on unstable ground–a dry streambed that sometimes was not so dry, it was said–and its floors were supposedly buckling; that funding request was rejected.

Now, earlier this month, in a military commission hearing, Gouled Hassan Dourad, a Somali detainee who lives in Camp 7, described, among other things, how it is divided between two tiers called Alpha block and Bravo block. He also said each cell has something called a “Charlie area” at the back where detainees can get fresh air and communicate by shouting at each other, and which have roofs. Maybe those white areas are roof coverings for the fenced-in “Charlie” recreation areas? The Charlie areas may be new since 2009: they were not described in the 2009 report, which “strongly” recommended increasing “detainee-to-detainee contact in Camp 7, including the ability for detainees to communicate with each other from within their cells.” Dourad also said “pinholes” were opened since 2009 that permitted more socializing. Here are the relevant excerpts from the transcript of that testimony:

Camp7 testimony

(Update: Carol Rosenberg told me she thinks he actually said “beanholes” — as in the slots in the steel doors — and his accent threw off the translators. She also noted that there is also a reference to the Charlie areas in this court filing:


Back to Google Earth, it looks like there is a second perimeter fence encircling this area at some distance — a couple hundred feet to the west, but nearly 1,000 feed of scrub to the east. There also appear to be some small sheds or structures in a fenced-off adjoining yard that I’ve marked with a question mark. (This is purely a guess, but perhaps they are kennels for dogs used to patrol the perimeter? Or entrances to bunker cells used to house Camp 7 detainees during hurricanes?)

camp7 fencing

And at the southern edge, down by the road, it looks like there’s a security gate vehicles have to pass through to get up to the parking lot area:

Camp7 gate

So, that’s a tiny bit of transparency for Camp 7. Thank you, Google.

UPDATE (9/18/2017):

Looks like the satellite imagery has been swapped again. In the currently available version the white roofs that may be the open-air Charlie areas at the back of the cells are less contrasty. The ground is much more brown than green compared to the last version, suggesting this was taken during the dry season, so maybe they are just covered in dust.

UPDATE 1/27/2018:

The Guardian reported today (based on a discovery by Nathan Ruser) that a global data visualization map released by the fitness appmaker Strava, using GPS data uploaded from users wearing fitness trackers when jogging or otherwise moving around, revealed information about military bases around the world.

Most of those insights came from seeing where Western people were, such as intense jogging circles around the perimeter of what must be forward operating bases in Afghanistan. But looking at Strava’s presentation of Gitmo with data for both jogging and driving toggled on, the insight comes from the opposite: a striking gap in the stretch of the road (called “Central Magazine Road” I think) on either side of the turnoff to Camp 7, where nobody wearing a fitness tracker is going.

It looks like one of the security measures is to make even the approach to the turnoff to Camp 7 a no-go zone for most military personnel. Otherwise, that stretch of road would be heavily traveled, since it is the most efficient route between the main detention complex to the southeast and the main base development area to the northwest, near the ferry landing.

UPDATE 4/6/21:

This past weekend, Southcom announced that it had closed Camp 7 and moved the high-value detainees to Camp 5. Last December, Carol Rosenberg (now at the NYT!), Eric Schmitt, and I had teamed up on an article reporting on chatter that this was being considered. It’s a solution to the fact that 7 has been crumbling for years and Congress hasn’t wanted to pay for erecting a replacement facility. In addition, consolidating all the remaining detainees in one place – the adjoining complex of Camps 5 and 6 – will enable the Pentagon to reduce the number of troops it must deploy to guard them.

In discussing the end of Camp 7’s current-events relevance (though we’ll see whether military commissions defendants litigate over trying to preserve it; there has previously been litigation over preventing the military from razing the old Camp X-Ray and over overseas C.I.A. “black site” facilities), Cryptome brought to my attention something I had not realized: if you use Google Earth Pro, the stand-alone program, instead of the web interface for Google Earth, you can see earlier iterations of satellite imagery.  (Thanks also to Twitter user Juergen/@jnievele for separately explaining this.) Using this technique, we can ascertain another fact about Camp 7: it was constructed sometime between April 2003 and November 2004.

Notably, that’s exactly the same time that a Halliburton subsidiary, KBR, was building the first permanent/hard-sided unclassified prison building — Camp 5 (see my story about learning this as a young Miami Herald reporter visiting Gitmo in June 2003, when Carol was going to Iraq, here). So it probably wasn’t called Camp 7 at first, since there was no Camp 6 yet.

In addition, as the Senate Intelligence Committee report on the C.I.A. torture program later recounted, from September 2003 to April 2004, the C.I.A. held at least five of its “high value detainees” at Guantanamo, apart from the hundreds of lessor detainees the military was holding there. It named two high profile military commissions defendants, Abd al-Nashiri, who is accused of plotting of the U.S.S. Cole bombing, and Ramzi Binalshibh, one of the five accused of aiding 9/11 plot, as among those the C.I.A. held at Guantanamo during this early period. (The C.I.A. moved them out to other overseas black-sites after the Supreme Court agreed to consider whether civilian courts had jurisdiction to hear habeas corpus lawsuits by detainees held at Gitmo in the Rasul v. Bush case; two years later, the C.I.A. would close its other black sites and transfer its remaining detainees to Camp 7 at Gitmo, after another Supreme Court ruling, Hamdan v. Rumsfeld, raised the possibility that agency black-site officials could be prosecuted for war crimes.)

A footnote in the report also said the C.I.A. held detainees in two facilities there, codenamed DETENTION SITE MAROON and DETENTION SITE INDIGO; the same footnote also contains an otherwise redacted sentence about “a third C.I.A. facility, DETENTION SITE RED.”

So it doesn’t take a great leap of imagination to deduce that the facility we know by the name Camp 7 either started out as MAROON or INDIGO, or that it was built with the intention of being a black site facility to be called RED before the Supreme Court’s decision to hear Rasul v. Bush prompted the C.I.A. to abruptly get out of Guantanamo.

FBI Discloses 700 Pages of Internal Shooting Incident Review Reports

With the help of the New York Times‘ legal guru, David McCraw, I have been using a series of Freedom of Information Act lawsuits to assemble a massive public library of internal Federal Bureau of Investigation shooting incident reports dating back to 1993. We’ve just updated that library with about 700 pages of such reports generated from 2013 to 2015. I don’t see a general-interest news story in these documents, so I’m just putting them up; if someone sees something of note, please get in touch with me. The documents include:

  • Shooting Incident Review Team (SIRT) reports: Under most circumstances, whenever an FBI agent fires his or her weapon outside of a shooting range, the bureau’s Inspections Division sends out a SIRT to investigate. It interviews witnesses and uses forensics to reconstruct what happened, and produces a report. The reports are thick binders of supporting material, but I FOIA’d out only the narrative summary portions.
  • Shooting Incident Review Group (SIRG) reports: After the Inspections Division completes its findings, they go to  a SIRG – a panel of high-level FBI and Justice Department officials – for review. The SIRG is looking for lessons learned and also assesses whether the shooting complied with the bureau’s policy on using lethal force, which permits agents to fire only if they have a reason to believe that their lives or the lives of others are in imminent danger. If the SIRG says the shooting complied with policy, that’s a “good shoot,” and if it did not comply with policy, that’s called a “bad shoot,” and an agent gets recommended for discipline, ranging from a censure letter in his or her file to being fired.
  • Civil Rights Division (CRT) reports, etc: For more recent incidents, I have also been asking for additional documents where somebody was hit by a bullet or where at least one member of the SIRG voted to find a bad shoot, even if that member was outvoted. Most importantly, I am seeking reports by Main Justice’s Civil Rights Division about whether to recommend prosecuting an agent for violating a person’s civil rights — or, more realistically given the unbroken pattern, why they don’t think prosecution is justified. In the super-rare case where an agent is recommended for discipline, I’m also asking for documents related to that process, which can take a long time.

Unintentional shootings are, of course, always bad shoots. But it is extremely rare for the bureau to find intentional shootings to be bad shoots, especially in potentially fraught situations in which a bullet actually hit somebody. The FBI’s internal shooting review process, in its current form, dates back to 1993, when then-FBI director  Louis J. Freeh overhauled it. Before then, the credibility of the process had been called into question because the bureau had deemed justified a shot by a FBI sniper that killed the wife of a white supremacist during the 1992 standoff at Ruby Ridge in Idaho, but then Main Justice took a second look and said it was improper. Still, in the 20 years since that overhaul, the process has deemed exactly one shot fired by an FBI agent that hit someone to be a bad shoot – a 2012 incident in Queens.

Here is some coverage:


Savage NYT FOIA FBI Shooting Incident Review Reports (Text)

“It’s not like the lawyers couldn’t have come up with a theory”: The Obama legal team and the lawfulness of attacking Assad

Several prominent law professors who were formerly members of the Obama national security legal team are debating the “dissent memo” signed by 51 mid-level career State Department diplomats about the administration’s current policy toward Syria. The diplomats think the United States should carry out airstrikes against the forces of Syrian President Bashar Assad, not just against the Islamic State. The debate has raised a section of Power Wars that reported out the behind-the-scenes legal policy deliberations over the 2012-13 “Syria red line” episode, including the existence and contents of a secret 17-page administration legal memo that assessed the legality of using force unilaterally against Assad’s forces. But I don’t think the debate has perfectly reflected what my reporting showed.

First, here’s the debate: In an essay cross-posted at Lawfare and Just Security, Ashley Deeks and Marty Lederman criticize the dissent memo in part because it does not address how it would be lawful for the United States to attack Syrian government forces. They suggested it would be illegal under both domestic and international law. In a rejoinder posted at Just Security, Harold Koh argues that whether or not the diplomats’ proposed policy is a good idea, there would be stronger legal authority for it than they maintain. (This is obviously, in part, an iteration in the long-running debate over “responsibility to protect” and whether humanitarian interventions can be lawful even without a United Nations Security Council resolution or a self-defense rationale.)

The essay by Marty and Ashley contains this footnote:

Earlier, when the President sought congressional authorization for the proposed 2013 strikes in Syria, he stated that “I believe I have the authority to carry out this military action without specific congressional authorization.” The President did not offer any justification for that statement, however (perhaps he had concluded that he already had some sort of statutory authorization that was not “specific”), and we think that it was, at best, questionable, at least if the President intended to suggest he had a constitutional authority to act unilaterally. For what it is worth, in his book Power Wars, Charlie Savage reports that an interagency group of lawyers, considering the legality of a possible operation in Syria back in 2012, realized that the constitutional case for unilateral presidential action was at least subject to serious question (and that the international law basis was even more dubious). Therefore, when the President and his staff debated the question of whether to initiate the use of force in the summer of 2013, White House Counsel Kathy Ruemmler, speaking for the lawyers group, urged the President to ask Congress for authorization, which he eventually did. Savage also quotes Ben Rhodes as saying that although perhaps the lawyers could have “come up with a theory,” the President himself told his aides, at the time of his decision, that he agreed with the narrower view of Article II authority that he himself had articulated as a candidate in 2007.

I would characterize this episode somewhat differently. In short, I think they are right that the Obama legal team was squirming about the proposed strike’s legal basis as a matter of international law, and therefore that the dissenting State Department officials look clueless for not even bringing up the question of how their proposal would be lawful. But I think the legal team was a lot more confident that such a unilateral strike would be lawful as a matter of domestic Constitutional law. And, interestingly, I think that Obama himself ended up taking a more limited view of his authority than his interagency legal advisers did.

Let me unpack all that. The pertinent information is found in two sections of the war powers portion of the main executive power chapter, Chapter 12 (“The Tug of War”): “‘A Red Line’ in Syria,” pages 627-631, and “Going to Congress for Syria in 2013,” on pages 650-654. These bookend a flashback to the 2011 Libya controversy.

The first Syria section describes a still-secret 17-page legal memo that Obama’s interagency lawyers group drew up in late 2012, after Obama blurted out that if Syria used chemical weapons, that would cross a “red line” making him reconsider his decision not to intervene militarily in the Syrian civil war. After all, the military has access to a nato 40mm gas mask filter and similar equipment to protect them, the civilians and innocent locals do not, and need to be helped. The lawyers assessed what the legal basis would be for using force if, hypothetically, Assad were to cross that red line. As with any war powers dispute, there were two questions: an international law question (whether the United States, as a whole, could lawfully use force against another sovereign) and a domestic law question (whether, under the Constitution, the president could order such a use of force on his own or needed Congressional authorization).

The international law basis was sketchy. Both of the universally recognized bases for using force appeared unavailable. There was scant prospect that Russia would permit a U.N. Security Council resolution authorizing force against Assad. And the prospects for a self-defense rationale seemed slim, too. In their memo, they tried to come up with scenarios by which they could hook it to self-defense: maybe, they hypothesized, if the chemical weapons were used along the border with Turkey, they could cite self-defense of American forces stationed in Turkey, or collective self-defense of Turkey, as justification. But mainly they looked to the 1999 NATO air war in Kosovo, in which the Clinton administration had cited a list of “factors” (e.g., the Serbs’ slaughter of Muslims in Kosovo was a threat to regional peace and stability) for why that intervention was supposedly lawful despite the lack of a Security Council resolution or a self-defense rationale, without ever quite saying how those factors added up to a theory. The Clinton team had stopped short of just saying that a humanitarian intervention was lawful because they feared that creating a precedent for such a doctrine would enable bad actors to misuse it, like Russia invading its neighbors with the excuse of protecting Russian language/ethnic minorities from oppression. Maybe, the Obama team reasoned, they could use Kosovo as a precedent anyway, and again point to the hypothetical role of NATO and other factors (e.g., they wrote, “unconscionable follow-on consequences” for a failure to respond to the use of chemical weapons). But the international law arguments were obviously thin.

But, at least viewed from a vantage point of executive branch precedents, the domestic law arguments for a unilateral strike were stronger. There is a long history of presidents of both parties ordering limited air strikes without Congressional authorization. Clinton’s office of Legal Counsel chief, Walter Dellinger, had articulated (in a memo about Haiti) the notion that there is a category of limited interventions whose anticipated scope, intensity, and duration falls short of “war” in the constitutional sense, and which a president, as commander in chief, can therefore order unilaterally if there are national interests at stake. In 2011, Obama’s then-OLC chief, Caroline Krass, had cited that reasoning to sign off on the legality of Obama’s decision to order the military to participate in NATO’s air war over Libya without prior Congressional authorization. In their Syria memo, the lawyers listed a number of national interests Obama could cite to justify launching airstrikes against Assad without going to Congress – most notably, enforcing and preserving the global ban on using chemical weapons.

Still, in light of the War Powers Resolution 60-day clock problems that had arisen with Libya in 2011, the memo concluded with a recommendation that if the red line were crossed, it would be wiser to go to Congress for domestic legal authority from the start – even though it did not say that would be legally necessary: “If the Administration decides to pursue military action, the lawyers group believes it would be prudent to make an explicit request for congressional authorization at the outset, particularly in light of the Libya experience last year,” the still-secret memo says.

Now, the twist was that Obama himself, as a senator and presidential candidate in 2007, had told me, in my Boston Globe executive power survey, something different – that “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” But he had already changed his mind about that in 2011 with Libya; Krass’s memo about Libya did not even mention what the then-senator had said during the presidential campaign, although critics of his move, like Senator Rand Paul, sure did:

Flash forward to the second section about this in Power Wars, with the summer of 2013, when Assad’s forces used chemical weapons (warning: footage at link is graphic). The military drew up plans for punitive airstrikes, and there as lots of reporting that it was a done deal that Obama was going to order airstrikes unilaterally and imminently — reflecting the assumptions of those reporters’ sources in the military and foreign policy establishment. But as my book explains, in the internal meetings, Obama never said he had made up his mind to go forward, and there was a lone voice in the key meetings who was urging Obama to hit pause and go to Congress: his White House Counsel, Kathryn Ruemmler. She was drawing on the interagency lawyers’ reasoning and taking their analysis into the meetings, like this one about Syria on Saturday, August 31, 2013 in the Situation Room – that’s Ruemmler (who was technically on vacation) on the right-side screen in this Pete Souza photo:


The problem was the international law basis for such a strike. It turned out to be even weaker than the hypotheticals considered in the secret memo drawn up in late 2012. The chemical weapons use had not taken place anywhere near the border with Turkey, so there was no plausible self or collective self defense rationale. And the British Parliament voted against taking part in any intervention, so the US (and France) would be alone, without NATO like in Kosovo. There was simply no international law precedent for what was on the table: a use of force against another sovereign, without UN backing, without a self-defense rationale, without NATO, and with a motive of punishing a past misdeed rather than stopping an imminent atrocity.

The lawyers were willing to say that such an operation would nevertheless be legitimate under international law based on Kosovo-style “factors,” as Ruemmler explained to me in an on the record interview just a few days later, but they knew it would be incredibly controversial. In light of that, Ruemmler urged Obama to at least get Congress on board, to “enhance the legitimacy” of what the United States was about to do. Obviously putting it on stronger legal footing, as a matter of domestic law, does not solve the legal problem, if there is one, about the international law question. So this was more about marketing and prudence. But that was their advice.

And on Friday night, August 30, Obama called together his national security team for this Oval Office meeting, to tell them that he had decided to go to Congress for authorization before any strike.

President Barack Obama meets with senior advisors in the Oval Office to discuss a new plan for the situation in Syria, Friday night, August 30, 2013. (Official White House Photo by Pete Souza)

As Ben Rhodes (sitting on sofa to Obama’s right in the Pete Souza photo) told me, at this meeting Obama brought up his 2007 answer to my Boston Globe survey outlining a more limited view of unilateral presidential war-making authority, saying “I believe that is true. I agree with the person who said that in 2007.”

[Side note: Ruemmler wasn’t beamed into this meeting, so was represented by Brian Egan, then her deputy, sitting in the lower left of the frame holding the notebook; he later became the N.S.C. legal adviser and is now the top State Department lawyer, Koh’s previous job.]

So Obama was taking a more limited view of his constitutional authority than his own legal team had articulated. Now, he seemed to view this as an aspirational constitutional constraint – obviously, in 2011, he had acted contrary to that view. This was something that was not a binding constraint, at least not any more, but maybe we needed to get back to where it was — at least when there is no imminent harm and Congress has time to act. As he said on September 4, 2013:

I think it’s important for us to get out of the habit in those circumstances — again, I’m not talking about circumstances where our national security is directly impacted, we’ve been attacked, et cetera, where the President has to act quickly — but in circumstances of the type that I describe, it’s important for us to get out of the habit of just saying, well, we’ll let the President kind of stretch the boundaries of his authority as far as he can; Congress will sit on the sidelines, snipe; if it works, the sniping will be a little less; if it doesn’t, a little more; but either way, the American people and their representatives are not fully invested in what are tough choices.

Let me end with this note of legal realpolitik from from this section of Power Wars:

Rhodes also said that it was still a choice, not a necessity, to go to Congress because “it’s not like the lawyers couldn’t have come up with a theory.” Still, he said, “in Syria we did not have clear arguments from an international law perspective. It’s easy to get lawyers to do cver wordings, and we could point to Kosovo” as a precedent, even though, he acknowledged, the Clinton legal team “had come up with a not-particularly-persuasive rationale” back then.

Will Florida’s sunshine law thwart the federal government’s censorship of the Orlando nightclub shooter’s 911 call?



The Federal Bureau of Investigation has released a partially censored transcript of Orlando nightclub shooter Omar Mateen’s 911 call in which he pledged allegiance to the Islamic State and said his motive was to tell America to stop bombing Syria and Iraq. I’ve pasted the full version at the end of this post, but here’s the relevant bits:

OD: Emergency 911, this is being recorded.

OM: In the name of God the Merciful, the beneficial [in Arabic]

OD: What?

OM: Praise be to God, and prayers as well as peace be upon the prophet of God [in Arabic]. I let you know, I’m in Orlando and I did the shootings.

OD: What’s your name?

OM: My name is I pledge of allegiance to [omitted].

OD: Ok, What’s your name?

OM: I pledge allegiance to [omitted] may God protect him [in Arabic], on behalf of [omitted].

OD: Alright, where are you at?

OM: In Orlando.

OD: Where in Orlando?
2:48 a.m.: First crisis negotiation call occurred lasting approximately nine minutes.

3:03 a.m.: Second crisis negotiation call occurred lasting approximately 16 minutes.

3:24 a.m.: Third crisis negotiation call occurred lasting approximately three minutes.

In these calls, the shooter, who identified himself as an Islamic soldier, told the crisis negotiator that he was the person who pledged his allegiance to [omitted], and told the negotiator to tell America to stop bombing Syria and Iraq and that is why he was “out here right now.” When the crisis negotiator asked the shooter what he had done, the shooter stated, “No, you already know what I did.” The shooter continued, stating, “There is some vehicle outside that has some bombs, just to let you know. You people are gonna get it, and I’m gonna ignite it if they try to do anything stupid.” Later in the call with the crisis negotiator, the shooter stated that he had a vest, and further described it as the kind they “used in France.” The shooter later stated, “In the next few days, you’re going to see more of this type of action going on.” The shooter hung up and multiple attempts to get in touch with him were unsuccessful.

The Justice Department omitted the specific words, so we don’t know if he preferred the terminology ISIS, ISIL, Daesh, or Islamic State. Presumably the person whose name is omitted is Abu Bakr al-Baghdadi, the Islamic State’s leader.

On Sunday, Attorney General Loretta Lynch purported to explain on ABC’s This Week why they would release only the partial transcripts: “I say partial because we’re not going to be, for example, broadcasting his pledges of allegiance. We are trying not to re-victimize those who went through that horror.” That explanation seems so obviously dubious that I wonder if the real concern is not wanting to provide raw materials for ISIS propaganda, except:

But since Florida has an excellent open public records Sunshine law, and the Orlando Police Department is subject to that state law, I suspect my old employer The Miami Herald or some other state news outlet will attempt to get the completed and uncensored version of at least the transcript and maybe the audio very quickly regardless. Federalism!

Here’s what a 2014 manual for law enforcement agencies put out by Florida’s attorney general says about 911 calls. It suggests that the Orlando Police Department will have some arguments to make if they don’t want to put out the full call–they could say it is “active criminal investigative information” or events immediately before/after a killing of a person. So it may take a judge’s order to get it out:

8. Emergency records

a. Emergency “911” records Section 365.171(12)(a), F.S., provides that any record, recording, or information, or portions thereof, obtained by a public agency for the purpose of providing services in an emergency which reveals the name, address, or telephone number or personal information about, or information which may identify any person requesting emergency service or reporting an emergency by accessing an emergency communications E911 system is confidential and exempt from s. 119.07(1), F.S. However, disclosure of the location of a coronary emergency to a private person or entity that owns an automated external defibrillator is authorized in some circumstances, as set forth in the exemption. Section 365.171(12)(b), F.S.

The exemption applies only to the name, address, telephone number or personal information about or information which may identify any person requesting emergency services or reporting an emergency while such information is in the custody of the public agency or public safety agency providing emergency services. Section 365.171(12)(a), F.S. See AGO 93- 60. There is no clear indication that the Legislature intended to include the sound of a person’s voice as information protected from disclosure. AGO 15-01. Moreover, identifying information obtained or created independently of the 911 call, for example from a criminal investigation or offense report created as a result of such investigation, is not exempt under s. 365.171(12)(a), F.S. AGO 11-27.

A tape recording of a “911” call is a public record which is subject to disclosure after the deletion of the exempt information. AGO 93-60. This does not, however, preclude the application of another exemption to such records. Thus, if the “911” calls are received by a law enforcement agency and the county emergency management department, information which is determined by the law enforcement agency to constitute active criminal investigative information may also be deleted from the tape prior to public release. AGO 95-48. See also Inf. Op. to Fernez, September 22, 1997 (while police department is not prohibited from entering into an agreement with the public to authorize access to its radio system, the department must maintain confidentiality of exempt personal information contained in “911” radio transmissions).

Moreover, an audio recording that records the “killing of a person” is confidential and exempt and may not be listened to or copied except as authorized in the exemption. Section 406.136, F.S. The term “killing of a person” is defined to mean “all acts or events that cause or otherwise relate to the death of any human being, including any related acts or events immediately preceding or subsequent to the acts or events that were the proximate cause of death.” Section 406.136(1), F.S.

Here is the FBI press release with the partial transcript:

Investigative Update Regarding Pulse Nightclub Shooting

ORLANDO – In order to provide an update on the progress of the investigation into the Pulse nightclub shooting, the FBI is releasing an excerpt from the timeline of events inside the Pulse nightclub during the early morning hours of Sunday, June 12, 2016. Out of respect for the victims of this horrific tragedy, law enforcement will not be releasing audio of the shooter’s 911 calls at this time,nor will law enforcement be releasing audio or transcripts of the calls made by victims at the Pulse nightclub during the incident. Furthermore, the name of the shooter and that of the person/group to whom he pledged allegiance are omitted.

The following is based on Orlando Police Department (OPD) radio communication (times are approximate):

2:02 a.m.: OPD call transmitted multiple shots fired at Pulse nightclub.

2:04a.m.: Additional OPD officers arrived on scene.

2:08 a.m.: Officers from various law enforcement agencies made entrance to Pulse and engaged the shooter.

2:18 a.m.: OPD S.W.A.T. (Special Weapons & Tactics) initiated a full call-out.

2:35 a.m.: Shooter contacted a 911 operator from inside Pulse. The call lasted approximately 50 seconds, the details of which are set out below:

Orlando Police Dispatcher (OD)
Shooter (OM)

OD: Emergency 911, this is being recorded.

OM: In the name of God the Merciful, the beneficial [in Arabic]
OD: What?

OM: Praise be to God, and prayers as well as peace be upon the prophet of God [in Arabic]. I let you know, I’m in Orlando and I did the shootings.

OD: What’s your name?
OM: My name is I pledge of allegiance to [omitted].
OD: Ok, What’s your name?

OM: I pledge allegiance to [omitted] may God protect him [in Arabic], on behalf of [omitted].

OD: Alright, where are you at?

OM: In Orlando.

OD: Where in Orlando?

[End of call.]

(Shortly thereafter, the shooter engaged in three conversations with OPD’s Crisis Negotiation Team.)

2:48 a.m.: First crisis negotiation call occurred lasting approximately nine minutes.

3:03 a.m.: Second crisis negotiation call occurred lasting approximately 16 minutes.

3:24 a.m.: Third crisis negotiation call occurred lasting approximately three minutes.

In these calls, the shooter, who identified himself as an Islamic soldier, told the crisis negotiator that he was the person who pledged his allegiance to [omitted], and told the negotiator to tell America to stop bombing Syria and Iraq and that is why he was “out here right now.” When the crisis negotiator asked the shooter what he had done, the shooter stated, “No, you already know what I did.” The shooter continued, stating, “There is some vehicle outside that has some bombs, just to let you know. You people are gonna get it, and I’m gonna ignite it if they try to do anything stupid.” Later in the call with the crisis negotiator, the shooter stated that he had a vest, and further described it as the kind they “used in France.” The shooter later stated, “In the next few days, you’re going to see more of this type of action going on.” The shooter hung up and multiple attempts to get in touch with him were unsuccessful.

4:21 a.m.: OPD pulled an air conditioning unit out of a Pulse dressing room window for victims to evacuate.

(While the FBI will not be releasing transcripts of OPD communication with victims, significant information obtained from those victims allowed OPD to gain knowledge of the situation inside Pulse.)

4:29 a.m.: As victims were being rescued, they told OPD the shooter said he was going to put four vests with bombs on victims within 15 minutes.

(An immediate search of the shooter’s vehicle on scene and inside Pulse ultimately revealed no vest or improvised explosive device.)

5:02 a.m.: OPD SWAT and OCSO Hazardous Device Team began to breach wall with explosive charge and armored vehicle to make entry.

5:14 a.m.: OPD radio communicationstated that shots were fired.

5:15 a.m.: OPD radio communication stated that OPD engaged the suspect and the suspect wasreported down.

Based on OPD radio communications, there were no reports of shots being fired inside Pulse between the initial exchange of gunfire between responding officers and shooter, and the time of the final breach. During this time, the shooter communicated with an OPD 911 operator and an OPD crisis negotiator, and OPD radio communications reported that victims were being rescued.

The FBI urges the public to provide information about the shooter and any contact they may have had with him. Since the release of the FBI’s Seeking Information poster, the FBI has received thousands of tips. The FBI will investigate every tip.

To provide a tip, please call1-800-CALL-FBI or visit tips.fbi.gov.

“The Imperial Presidency?” ACS Panel Discussion on Executive Power

C-Span has now made available the video of last weekend’s panel discussion on executive power at the American Constitutional Society for Law and Policy annual convention, which I moderated. The all-star panel included Walter Dellinger, Marty Lederman, Sai Prakash, Neomi Rao, and Hina Shamsi.

Here is the description from ACS:

The Imperial Presidency?

President George W. Bush and President Barack Obama entered office with radically different conceptions of executive power, particularly with regard to war powers and national security, and the coming year will see the election of a new president. The Bush Administration claimed sweeping unilateral executive power to act contrary to federal laws that regulated surveillance and banned torture, and issued hundreds of signing statements asserting the right to disregard statutory requirements. President Obama entered office rejecting this overreaching and pledging to restore the rule of law. But in the face of congressional obstruction, President Obama also has been accused of abusing presidential power in the contexts of immigration, health care, climate change, and recess appointments. When the next president takes office in January 2017, what view of executive power will and should prevail, and what is at stake for the nation?