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Wednesday, May 31, 2006

New court filing by Mark Zaid

A new declaration was filed yesterday in District Court by Mark Zaid. This is the latest in the legal case over the right or lack of rights to legal representation by members of the Able Danger team. This part in particular, caught my attention:

I, as Shaffer’s counsel, cannot adequately or effectively provide him sound legal advice since I do not know all the facts of the operation, nor the full scope of Shaffer’s role within the operation. This was more than clear when the conversation involved specific questions and seemingly vague discussions surrounding the legality of operations that Shaffer, and/or ABLE DANGER, might or might not have engaged in. The investigator asking the questions, and Shaffer in providing answers, continually danced around the issue while at the same time ensuring it was abundantly obvious they both knew what they were addressing. The conversation became so alarming to me that I was forced to specifically note on the record that I was concerned for Shaffer’s legal well-being and could not provide either adequate or effective representation, and I advised that both this line of questioning and his answers cease. I cannot judge at this time whether Shaffer is in legal liability or not because of the veil that the Government has purposefully placed over my face while at the same time continuing to pursue matters that potentially expose Shaffer to either administrative, civil or even criminal penalties. This scenario is completely unfair and inappropriate of the defendants to place Shaffer, or anyone, in.


Captain Ed comments on the developments here:

Interesting. While Zaid offers praise for the conduct of the investigators, he clearly senses that the depositions have aimed at making any court action impossible by tying too many classified threads into it. Not only does this confound any prosecution of the lawsuit, but Zaid cannot even be sure that it is deliberate, since he has little frame of reference about the issues at hand. As Zaid says, in this position he can do nothing to protect his client's interests.


You can download the document here:

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANTHONY SHAFFER et al. *
*
Plaintiffs, *
*
v. * Civil Action No. 06-271 (GK)
*
DEFENSE INTELLIGENCE AGENCY *
et al. **
Defendants. *
* * * * * * * * * * * *
PLAINTIFF’S NOTICE OF FILING OF SUPPLEMENTAL DECLARATION
Plaintiff Anthony Shaffer, by and through his undersigned counsel, hereby
respectfully submits this Notice of Filing of Supplemental Declaration in further support
of his Opposition to Defendants’ Motion to Dismiss (filed May 12, 2006).
Date: May 30, 2006
Respectfully submitted,
/s/
______________________________
Mark S. Zaid, Esq.
DC Bar #440532
Krieger & Zaid, PLLC
1920 N St., N.W.
Suite 300
Washington, D.C. 20006
(202) 454-2809
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANTHONY SHAFFER et al. *
*
Plaintiffs, *
*
v. * Civil Action No. 06-271 (GK)
*
DEFENSE INTELLIGENCE AGENCY *
et al. **
Defendants. *
* * * * * * * * * * * *
SECOND DECLARATION OF MARK S. ZAID, ESQ.
The undersigned hereby declares as follows:
1. I am a person over eighteen (18) years of age and competent to testify. I make this
Declaration on personal knowledge. This Declaration is submitted as a supplement to my
initial declaration dated May 12, 2006, which was filed in support of the plaintiffs’
Opposition to the Defendants’ Motion to Dismiss.
2. The defendants have initially challenged whether plaintiff Anthony Shaffer
(“Shaffer”) has standing to bring this case, or whether the asserted matters are ripe for
adjudication. Should this Court deny the Government’s Motion, it will be necessary to
decide the substantive arguments regarding whether Shaffer’s counsel’s access to certain
classified information is appropriate. In my opinion, recent events, as described below,
that postdate the filing of Shaffer’s Opposition submission pertain to all of the above.
3. Shaffer and the undersigned counsel participated in interview sessions with the
defendant Department of Defense’s Office of Inspector General (“DoD OIG”) on May
16, 2006, and May 24, 2006. The DoD OIG is conducting an investigation into, among
other issues, the factual circumstances surrounding ABLE DANGER and also whether
the defendant Defense Intelligence Agency retaliated against Shaffer. These two
meetings, as well as two others that occurred in November 2005, have all been conducted
at the
2
unclassified level, particularly - apparently - in order to allow the undersigned to
participate.
4. During both meetings (and even during the November 2005 sessions), but
especially the interview held on May 16, 2006, there were numerous instances where the
conversation began to encroach upon “out of bounds” classified areas. For all I know,
the conversations actually extended at times into the classified arena. In any event, it is
clear to me that the primary focus and core issues at the heart of ABLE DANGER remain
classified. This is of concern to me, and I believe should concern this Court for purposes
of this litigation and present Motion, on at least two levels.
5. First, I, as Shaffer’s counsel, cannot adequately or effectively provide him sound
legal advice since I do not know all the facts of the operation, nor the full scope of
Shaffer’s role within the operation. This was more than clear when the conversation
involved specific questions and seemingly vague discussions surrounding the legality of
operations that Shaffer, and/or ABLE DANGER, might or might not have engaged in.
The investigator asking the questions, and Shaffer in providing answers, continually
danced around the issue while at the same time ensuring it was abundantly obvious they
both knew what they were addressing. The conversation became so alarming to me that I
was forced to specifically note on the record that I was concerned for Shaffer’s legal
well-being and could not provide either adequate or effective representation, and I
advised that both this line of questioning and his answers cease. I cannot judge at this
time whether Shaffer is in legal liability or not because of the veil that the Government
has purposefully placed over my face while at the same time continuing to pursue matters
that potentially expose Shaffer to either administrative, civil or even criminal penalties.
This scenario is completely unfair and inappropriate of the defendants to place Shaffer, or
anyone, in.
6. Second, it is also clear that specific individuals and organizations, due to their
classified or protected nature, are not being discussed or addressed in the investigation
3
(again being danced around during interviews), at least not with Shaffer, who obviously
was a key player in most of the relevant events. On multiple occasions I have witnessed
first-hand Mr. Shaffer being stopped from providing testimony or sworn information by
investigators (and I know of instances involving congressional staff) based on “security
classification”. I also know that Shaffer has not been asked, nor has he provided,
classified inputs to the DoD OIG investigations on ABLE DANGER. This issue is of
grave concern to me as it directly impacts the scope and accuracy of the DoD OIG
investigation. It is one thing to protect classified capabilities and avoid discussion due to
the presence of uncleared counsel, but it is entirely another to avoid specific relevant
areas of inquiry simply because of alleged classification concerns. While I personally
presently perceive the conduct of those handling the investigation to be fair and
professional, I cannot imagine the investigation can be completed, and more importantly
any accurate conclusions reached, without addressing the gaping holes Shaffer can
apparently fill and desires to address. Due to the potential administrative and legal
liability that Shaffer faces as a result of his participation in ABLE DANGER, it is
imperative that the testimony he provides (unless perhaps under some grant of immunity)
to the DoD OIG occur in the presence of counsel.
7. The DoD OIG has produced transcripts of the November 2005 interviews, and
will do the same for the May 2006 interviews, all of which can certainly be provided to
the Court for its review.
8. The DoD OIG investigation remains active (and probably will continue for at
least several more weeks if not longer) and I have reason to believe Shaffer will be
requested to participate in an additional interview session(s).
4
I do solemnly affirm under the penalties of perjury that the contents of the foregoing
paper are true to the best of my knowledge.
Date: May 30, 2006
/s/
__________________________
Mark S. Zaid, Esq.
Attorney for Plaintiffs

Tuesday, May 30, 2006

Triple Cross and Able Danger

Peter Lance's new book, Triple Cross, which you can pre-order online at Barnes and Nobles or Amazon, should reveal significant new information about the Able Danger case. You might recall his email to Able Danger Blog back in March:

...Boesen went on to do many, if not most of the Able Danger link charts.

Further, I have a booklet on al Qaeda that he co-wrote with Dr. Preisser in 2002. It's a little known monograph that he autographed for me.

I tried for weeks to reach Boesen after Cong. Weldon broke the Able Danger story in August. On the eve of the Specter Hearing in Sept. Boesen's son told me that his father couldn't talk to me because his "company" forbade him too, since I was a member of "the press."


In addition, we have learned that a two hour documentary he is working on for National Geographic Magazine, also due out in September, will discuss Able Danger. You might recall that a previous documentary of theirs mentioned it briefly, but you can expect a much more thorough discussion this time around. There are also rumors that a major news organization might be planning a in-depth follow up on Able Danger to coincide with the fifth anniversary of September Eleventh. Maybe there are some real journalists out there after all. Now, if only the witnesses weren't all afraid of losing their jobs, we might finally start to make some progress here and have a small chance of changing things so we can better prevent the next strike on the US.

Here is an introduction to the new book due out in September:

"TRIPLE CROSS: How Bin Laden’s Chief Security Adviser Penetrated the CIA, the FBI, and the Green Berets"

Investigative reporter Peter Lance returns to uncover the story of Ali Mohamed – a trusted security advisor of Osama bin Laden who hoodwinked the United States for more than a decade. As Lance reveals for the first time, this one man served in a series of high-security positions within the United States security establishment while simultaneously helping orchestrate the al Qaeda campaign of terror that led to 9/11, a feat worthy of John le Carre. How did he move in and out of and around the U.S.? How did he become a naturalized citizen, marry an American woman and infiltrate three of America’s top intelligence agencies: the CIA, the Defense Intelligence Agency and the FBI? With utter complacence, ruthlessness, and ease, and with no small amount of oversight from the outflanked U.S. intelligence community. TRIPLE CROSS penetrates Mohamed’s secret past to tell the story of the most dangerous triple-agent in recent history. Peter Lance is a five-time Emmy Award–winning journalist and the author of the groundbreaking 1000 YEARS FOR REVENGE, COVER UP, and the novel FIRST DEGREE BURN, he is a former correspondent for ABC News and has covered hundreds of stories worldwide for 20/20, Nightline, and World News Tonight.

ReganBooks
Publication: September 2006 (SH)
Estimated length: 320 pages with 16-page color insert
Manuscript available: May 2006


From Dingbat Magazine:

BAT:It sure is. You’ve given the public plenty to be outraged about and maybe the government will start feeling the pressure.

Finally, what are you working on now?

LANCE: A new book called TRIPLE CROSS, on the greatest enigma in the war on terror: Ali Mohamed, the al Qaeda spy who infiltrated the Green Berets at Fort Bragg, the CIA and the FBI. He's the rosetta stone that helps to explain so much of why the FBI and the DOJ failed to stop the 9/11 attacks. It is due out in Sept. and the National Geographic Channel will be doing a two hour documentary based on the book and my reporting.

Tuesday, May 23, 2006

Accuracy in Media addresses Able Danger

They agree that the media blackout is an outrage:

One thing is certain: don't look for any investigative stories from the Post into the intervention of the intelligence community into the media and politics.

While the media have played a nefarious role, officials of the Bush and Clinton administrations are scrambling to silence those, led by Weldon, who are asking tough questions about the performance of the intelligence community. Weldon, for example, wonders how it could happen that lead 9/11 hijacker Mohammed Atta was not arrested even though he had been identified as a dangerous terrorist by the Able Danger military intelligence unit well before the terrorist attacks. He and at least three other members of an al-Qaeda cell in Brooklyn, NY were known as dangerous terrorists more than a year before the planes crashed into the World Trade Center, the Pentagon, and a Pennsylvania field.

With notable exceptions (see below), powerful media outlets are ignoring or ridiculing those who are trying to expose the scandal of what at best can be categorized as incredible incompetence. At the moment, their target is Congressman Weldon, Vice Chairman of the House Armed Services Committee and the Homeland Security Committee.

Weldon and 248 of his colleagues in both parties are demanding a no-holds-barred investigation. There was one congressional hearing in February—followed by minimal news coverage—with other Capitol Hill investigations possibly in the offing. Congressman Todd Tiahrt, a member of the House Select Committee on Intelligence, said he could not comment when AIM asked if that panel planned hearings on Able Danger. Most of the Intel committee's hearings are behind closed doors.

In an updated interview with AIM (his first was with Editor Cliff Kincaid months ago), Weldon noted that at the hearing "five very senior, very trustworthy and well respected leaders in our military establishment" swore under oath that the Able Danger team identified the cell members (including Atta) "in January of 2000 and that in September of 2000 made three attempts to transfer the data to the FBI and were denied each time." Then-FBI Director Louie Freeh recently stated that if he had known of that Able Danger material, the FBI may well have stopped the 9/11 attacks from ever happening.

Weldon also told us "the 9/11 Commission said that the Able Danger task force members did not identify Mohammed Atta [even though] five people have testified under oath that they did."

The Philadelphia Inquirer in the congressman's backyard is part of the media whitewash. That liberal paper is trying not only to discredit Weldon and the Able Danger team itself, but also other threats the congressman has exposed over the years.


The article goes into a lot of detail on the Able Danger story. Go read it.

They also suggest sending a friendly post card to the new White House Press Secretary, Tony Snow. He has covered Able Danger in the past, and AIM suggests asking him to bring more information on the program to light:

Mr. Tony Snow
Press Secretary
The White House
1600 Pennsylvania Avenue, N.W.
Washington, DC 20500

Able Danger Blogging

The discovery of 9,500 pages of material on Able Danger - or more precisely the admission that this material still exists - has gotten quite a bit of attention around the blogosphere. In the Able Danger Blogroll, Vi Adkins points out a few.

Captain Ed:

That news should stun those who have been following the Able Danger story for the past year. The official story has had all documentation being destroyed in a particularly aggressive form of housekeeping that took place after Col. Tony Shaffer revealed the existence of the program to the 9/11 Commission. The missing documentation proves, according to Shaffer, that the intelligence community identified Mohammed Atta and the other members of the core 9/11 cell prior to the attacks as potential al-Qaeda agents.

The assertion that 9500 pages of evidence still exists at the Pentagon will no doubt surprise members of Congress that received little from their investigations into the program. Hopefully this will pique their curiosity once more....


AJ Strata:

I wonder if this will kick off another round of congressional hearings? Able Danger fell off the radar screen because of some deal behind the scenes. I still maintain the Able Danger story should be exposed, not to understand our intel capabilities, but to understand if some high level political appointee was able to shut down our national security efforts because some information was too uncomfortable. That still worries me that politics can trump security.


Daily Pundit:

A surprise? Certainly not. The Beltway establishment has and will do anything it thinks it needs to to protect itself.


Anti Media:

You've got to be kidding me....
....is the only way I know to describe this news.

....Surprise is an understatement. This is ridiculous. We have public testimony of DoD officials insisting the documents were destroyed, and now they claim there's more than 9500!

If the leaders of this country gave a damn about us, this would be front page news and there would be multiple investigations going on. As it is, we get platitudes and lies.


Just Barking Mad:

The 9/11 Commission claimed these documents were missing or destroyed. I knew the commission was a sham from the beginning, but this only highlights how big of a sham it really was.


News Max:

In a possibly related development, the Web site reported that the attorneys for the secret team members, who disclosed the existence of Able Danger, have argued in a new court filing that they be "cleared” to review such files.

Lt. Col. Shaffer, one of those secret team members, said he had no comment on either the newly disclosed existence of the 9,500 pages of Able Danger documents - or even on his attorneys’ court filings, without clearance from his superiors at the Defense Intelligence Agency.

Meanwhile, Rep. Curt Weldon, R-a., the salient investigator of the Able Danger case, has announced that he plans to continue his investigation regarding official claims that the top-secret spying unit’s data was destroyed.

Sunday, May 21, 2006

10,000 Able Danger documents located

Scott Malone of NavySeals.com and Christopher Law of PublicEdCenter.org have been following the Able Danger story from the beginning. Back in November, Chris submitted a FOIA request for all documents and emails that could be located related to Able Danger. He was routed from the Pentagon to SOCOM, back to the Pentagon, asked to resubmit his request, then told he had submitted duplicate requests. Last week, his request was finally denied. DOD refused to turn over a single document, but admitted there were at least 9,500 pages of data responsive to his request! Considering that DOD has maintained all along they have not been able to find much material on Able Danger, and has been slow to respond to requests for documents on Able Danger from both the Congress and the 9/11 Commission, this is quite a surprise.

You can download the original request and administrative responses here.

You can also download the denial he received with the admission the documents exist.

Scott Malone has written an article, describing the whole ordeal. He gave me permission to post it in its entirety here at Able Danger Blog. Thanks to both Chris and Scott for their continued work on this effort:

10,000 “DESTROYED” ABLE DANGER DOCUMENTS STILL CLASSIFIED

Motion Filed by Secret Team Members Requests Their Lawyers Be “Cleared”

By W. Scott Malone, Senior Editor NavySEALs.com

NavySEALs.com / MediaChannel.org

WASHINGTON, D.C. (May 21) – In two possibly related developments in the past week, the Pentagon denied access to almost 10,000 pages of classified documents relating to a top-secret intelligence program senior officials have three times previously testified were destroyed or unable to be located. And the attorneys for the secret team members who disclosed the existence of the data-mining counter-terrorism program, called ABLE DANGER, have argued in a new court filing that they be “cleared” to review such files.

The Defense Department’s Inspector General’s office (DoD-OIG) and the joint Special Operations Command (SOCOM) have amassed some 9,500 pages of documents on a program that senior DoD and 9/11 Commission officials have stated repeatedly were destroyed or can no longer be located.

In response to a Freedom of Information Act request, “The Office of the Undersecretary of Defense for Intelligence, has determined that approximately 9,500 pages of these collected documents are potentially responsive to your FOIA request.”

The still ongoing Inspector General’s Office investigation was cited as the primary reason for exempting the documents from public release. Undersecretary of Defense for Intelligence, Dr. Stephen Cambone, had promised congressmen last February that the OIG report would be completed by May. It has not been released. The letter of denial, which came from Cambone’s office, was dated the 8th of May.

National Security News Service reporter Christopher Law, who filed the request last November, said that he was somewhat surprised at the denial. “It wasn’t exactly what I asked for.” He had requested only the September, 2005 “Defense Department’s Intelligence Oversight Report” on ABLE DANGER, and any backup documents.

“I certainly didn’t expect them to have 9,500 pages of files which they had stated officially had been destroyed,” Law said Sunday. “We plan to appeal the denial,” Law said, along will keeping their original FOIA request open and “concurrent.”

Early last February, “a file cabinet full” of additional suspected ABLE DANGER records were seized by the Commanding General of the US Army Intelligence and Security Command (INSCOM) during a surprise Friday afternoon visit to the classified intelligence section of the information warfare center at Ft. Belvoir in Virginia, according to Rep. Curt Weldon (R-PA), whose persistent investigation of the ABLE DANGER case has apparently prompted the Pentagon to get serious in their record searches.

“The data that was discovered at INSCOM,” Thomas Gandy of Army Intelligence later told Rep. Weldon, “was the data that Congress had subpoenaed. They were searching for Able Danger data,” but “it was reported to me they did not come up with any.”

It could not be determined last week whether any of the seized INSCOM records were part of the withheld 9,500 pages. Additional reasons cited in the Pentagon denial included that some of the documents were “properly classified” pursuant to a Clinton-era Executive Order which covers US military weapons or systems; intelligence sources and methods, and the privacy rights of individuals and “third parties.”

In the District federal court in Washington, the attorneys for former ABLE DANGER team members Army Reserve Lt. Col. Anthony Shaffer filed an “opposition” motion to a Department of Justice motion to dismiss their suit to reinstate his wrongfully-dismissed security clearances, partially on the grounds that he has been denied the full services of counsel because the Pentagon has so far refused to grant his attorneys high enough security clearances.

“The plaintiffs,” the filing reads, referring to Lt. Col. Shaffer and civilian programmer J.D. Smith, “filed this action to permit their attorneys to be provided at least verbal access to allegedly classified information necessary for protecting their legal interests,” before closed-door, classified congressional hearings, and during the ongoing Inspector General’s investigation.

”It is about the need for effective and appropriate legal representation and the scope of what that entails,” the filing, dated May 12, reads.

“ABLE DANGER identified the September 11, 2001 attack leader Mohamed Atta, and three of the 9/11 plot’s 19 hijackers, as possible members of an al Qaeda cell linked to the 1993 World Trade Center Attacks or its participants,” over a year before the September 11th attacks. When Lt. Col. Shaffer revealed to Rep. Weldon last summer that the program had actually identified four of the 9/11 terrorists, Rep. Weldon took to the House floor to announce his own investigation.

According to their new filing: “Everything changed when the news of ABLE DANGER became publicly known in August 2005. The [Defense Intelligence Agency’s] retaliation and vendetta increased in intensity. Just days 5 before Shaffer was to testify before the Senate Judiciary Committee the following month, DIA revoked his clearance. Upon information and belief, this was a deliberate action undertaken by the defendants to attempt to further discredit Shaffer’s credibility and directly tied to ABLE DANGER.”

Lt. Col. Shaffer said Sunday that he could not comment on either the newly disclosed existence of the 9,500 pages of ABLE DANGER documents, or even his own attorneys’ court filings, without explicit clearance from his employers at the DIA. “Sorry, I just can’t,” he said. J.D. Smith could not be reached for comment.

"The DIA's actions to prevent my access to relevant materials that are necessary to properly and effectively legally represent Tony Schaffer are inconsistent with the long-standing relationship I've had with DIA,” said Mark S. Zaid, of Krieger & Zaid, who is representing Schaffer. “Serious questions abound as to why that is, and many of them involve Able Danger," Zaid said Sunday.

The FOIA request letters, and the new court filing, were posted Sunday on the AbleDangerBlog.com [http://www.abledangerblog.com/] website, in conjunction with efforts by NavySEALs.com [http://www.navyseals.com/community/main.cfm]; MediaChannel.org [http://www.mediachannel.org/]; and the National Security News Service [http://www.storiesthatmatter.org/] to secure the release all pre-9/11 US terrorist warning intelligence records.

As part of these efforts, last week NavySEALs.com and MediaChannel.org published an exclusive interview with former New York Times reporter Judith Miller. Miller described how her investigation of the Al-Qaeda attack on the USS Cole in October, 2000, had led her to an even more serious top-secret NSA Al-Qaeda intercept warning to the top National Security officials at the White House during the July 4th weekend of 2001, two months before the tragic September 11th attacks. Those intelligence warnings had been presaged similarly in the two weeks before the attack on the Cole by the ABLE DANGER program.

“Since DoD and other agencies have been known to re-classify and/or classify previously open source documents and testimony,” said the National Security News Service’s Law, “we are requesting some copies from their declassified file to make it procedurally more difficult to re-classify them somewhere down the road.”

And Rep. Weldon has announced that he plans to continue his investigation in to whether official claims that the top-secret spying unit’s data was destroyed, were false. Rep. Weldon has said repeatedly since his only official hearing last February that “knows to a certainty” that voluminous ABLE DANGER files and data still exist, and that more military intelligence officers, recently retired, have come forward with further confirming information in recent weeks.

Thursday, May 18, 2006

Slade Gorton at it again

Reader JM writes:

Hi, I'm a big fan of your blogsite and try to stay current on the Able Danger story (with the common hope that past wrongs will be righted and an effective intelligence tool will be re-constituted). Yesterday (5/16), I was listening to the John Carlson radio show on KVI 570, here in Seattle, and the guest was Slade Gorton. During the course of the interview he was asked a question about Able Danger and why it wasn't pursued more in the 911 report.

He immediately proceeded to marginalize Lt. Col. Tony Shaffer with the dismissal that 'he only worked on Able Danger for a few weeks' and that it may have been an interesting program but that it didn't reveal any useful information. Gorton said that, at the initial briefing Shaffer made when he was overseas, that nothing very compelling was discussed and that nobody who was there remembers seeing any pictures of Atta. He also dismissed Scott Philpott by simply saying that he didn't even work on the Able Danger program. He said that Able Danger never identified any of the 9/11 terrorists.

Gorton just didn't seem to have many facts straight.

Gorton said that Congressman Weldon claimed to have given 'the chart' to Stephen Hadley and that he later recanted and said that he wasn't sure what he gave Hadley. He said a number of other things that really seemed intended to make Weldon sound like a crackpot. Gorton sounded very defensive and seemed to really resent being questioned/contradicted.

It is just amazing to me that someone who is supposed to have been part of a comprehensive and 'open minded' investigation can so thoroughly dismiss something out of hand.

Gorton was also asked why Jamie Gorelick was allowed to stay on the committee considering the obvious conflict of interest. He mentioned that when the committee was being formed, Democrats insisted that Gorelick and Ben-Veniste be on it.

I wonder how he would try to explain Shaffer's tenacity in getting this story out at the expense of his career. Given Lt. Col. Shaffer's apparent honor and courage, would it have hurt for Gorton to just sit down with him and discuss the details? Even after the release of the report.

Really frustrating to hear someone who has been paid to get to the very bottom of things and is selling the American people short.

Anyway, thanks for all you do on your site to help keep this alive and have a great week,

[JM]


Ha! Now Scott didn't even work on Able Danger! I'm sure he would love that one, considering he was second in command of the task force under Col. Worthington....

Wednesday, May 17, 2006

Judy Miller got heads up before 9/11

Rory O'Connor and Scott Malone interviewed Judith Miller about pre-9/11 intel. Go read the whole thing:

“But I did manage to have a conversation with a source that [July Fourth] weekend. The person told me that there was some concern about an intercept that had been picked up. The incident that had gotten everyone’s attention was a conversation between two members of Al Qaeda. And they had been talking to one another, supposedly expressing disappointment that the United States had not chosen to retaliate more seriously against what had happened to the Cole. And one Al Qaeda operative was overheard saying to the other, ‘Don’t worry; we’re planning something so big now that the US will have to respond.’

“And I was obviously floored by that information. I thought it was a very good story: (1) the source was impeccable; (2) the information was specific, tying Al Qaeda operatives to, at least, knowledge of the attack of the Cole; and (3) they were warning that something big was coming, to which the United States would have to respond. This struck me as a major Page One-potential story.

“I remember going back to work in New York the next day and meeting with my editor Stephen Engelberg. I was rather excited, as I usually get about information of this kind, and I said, ‘Steve, I think we have a great story. And the story is that two members of Al Qaeda overheard on an intercept (and I assumed that it was the National Security Agency, because that’s who does these things) were heard complaining about the lack of American response to the Cole, but also… contemplating what would happen the next time, when there was, as they said, the impending major attack that was being planned. They said this was such a big attack that the US would have to respond.’ Then I waited....

As Steve put it to me, ‘You have a great first and second paragraph. What’s your third?”’

What's your third?

How about this?

June 21, 2001 Posted: 10:09 AM EDT (1409 GMT)

ATLANTA (CNN) -- Osama bin Laden has produced a videotape in which he is directing his followers to prepare for fighting....

"To all the Mujahedeen, your brothers in Palestine are waiting for you, it's time to penetrate America and Israel and hit them where it hurts most," bin Laden says.

Or maybe this?

June 25, 2001, MONDAY; ALL EDITIONS

BYLINE: AMIR SHAH, The Associated Press

DATELINE: KABUL, Afghanistan

Afghanistan's Taliban rulers have rejected U.S. concerns about the possibility of a terrorist strike by the followers of Osama bin Laden, saying Sunday that the Saudi dissident is under their strict control and cannot use Afghan territory as a base for attacks.

The remarks came a day after the Arabic satellite channel Middle East Broadcasting Corp. reported that followers of Bin Laden, based in Afghanistan, were planning an attack on American and Israeli "interests" within the next few weeks.


Good grief. Anyway, after interviewing Miller, they spoke with Engelberg:

Engelberg told us the same thing. “On September 11th, I was standing on the platform at the 125th Street station,” he remembered ruefully more than four years later. “I was with a friend and we both saw the World Trade Center burning and saw the second one hit. ‘It’s Al-Qaeda!’ I yelled. ‘We had a heads up!’ So yes, I do still have regrets.”


Interesting how that intercept never found it's way into the 9/11 Report, either. Regardless, here is the little noticed Columbia Journalism Review piece Rory and Scott mention from this past November:

In July of 2001, Steve Engelberg, then an editor at The New York Times, looked up to see Judy Miller standing at his desk. As Engelberg recalls, Miller had just learned from a source about an intercepted communication between two Al Qaeda members who were discussing how disappointed they were that the United States had never attempted to retaliate for the bombing of the USS Cole. Not to worry, one of them said, soon they were going to do something so big that the U.S. would have to retaliate.

Miller was naturally excited about the scoop and wanted the Times to go with the story. Engelberg, himself a veteran intelligence reporter, wasn’t so sure. There had been a lot of chatter about potential attacks; how did they know this was anything other than big talk? Who were these guys? What country were they in? How had we gotten the intercept? Miller didn’t have any answers and Engelberg didn’t think they could publish without more context. Miller agreed to try and find out more, but in the end the story never ran.

Today, more than four years after 9/11, Engelberg, now managing editor of The Oregonian in Portland, still thinks about that story. “More than once I’ve wondered what would have happened if we’d run the piece?” he says. “A case can be made that it would have been alarmist and I just couldn’t justify it, but you can’t help but think maybe I made the wrong call.”


Made the wrong call? You think?

Missing Link Analysis Chart Discovered

Just got the following update from Curt Weldon. Here is the key section:

In the next week, I will be following up with the DOD-IG on the status of the investigation and where it is headed as well as the link analysis chart that has been discovered. I will be asking the IG about the chart, its origin and why it has not been made public.


Sounds like the infamous chart was found? Here is the rest of the email:

[THIS MESSAGE HAS BEEN SENT ON BEHALF OF U.S. REP. CURT WELDON (R-PA). YOU HAVE RECEIVED THIS EMAIL BECAUSE YOU HAVE PREVIOUSLY CONTACTED OUR OFFICE ABOUT ISSUES RELATING TO PRE-9/11 INTELLIGENCE PROGRAM - ABLE DANGER]

Thank you for your continued interest regarding Able Danger - the Department of Defense planning effort prior to 9/11 tasked to identify and target the linkages and relationships of Al-Qaeda worldwide.

While the hearing held on Able Danger by the House Armed Services Strategic Forces and Terrorism, Unconventional Threats and Capabilities Subcommittees last February marked progress, the matter is far from resolved.

The Department of Defense Inspector General (DOD-IG) continues its investigation into allegations that the Defense Intelligence Agency (DIA) impugned the career of LTC Shaffer shortly after coming forward to the 9/11 Commission and the American Public with information about Able Danger and its work. In the next week, I will be following up with the DOD-IG on the status of the investigation and where it is headed as well as the link analysis chart that has been discovered. I will be asking the IG about the chart, its origin and why it has not been made public.

Many of you have asked for more information about Able Danger. Despite the failure of the main stream media to keep you informed, many sources on the Internet, namely several blogs, have continued to provide valuable information about this important issue. You can find a multitude of updated news provided by these blogs here.

Thank you again for your ongoing interest. I will continue to keep you updated as this inquiry progresses.


Thank you,


CURT WELDON

Member of Congress

7th District of Pennsylvania


http://curtweldon.house.gov

Senate moves to force Lippold to retire

Thanks to Jane Novak for the link.

Bill could force ex-Cole skipper into retirement

A U.S. Senate committee is recommending changes in military promotion regulations that could force the former skipper of the Norfolk-based destroyer Cole out of the Navy in 2008.

Language quietly inserted into a Pentagon spending bill by the Senate Armed Services Committee early this month would require that Cmdr. Kirk Lippold retire unless President Bush resubmits his nomination for promotion to captain and he is confirmed by the Senate.

The committee declined to act on Lippold’s nomination when Bush originally submitted it in 2002. Lippold’s name was returned to the White House when Congress adjourned at the end of that year, but the Navy still considers him eligible for promotion, and Bush could renominate him at any time.

Though the committee’s chairman, Virginia Sen. John Warner, has questioned Lippold’s “qualities of judgment, forehandedness and attention to detail,” a Warner spokesman said Monday that his boss has made no decision about Lippold’s fitness for promotion.

John Ullyot, Warner’s press secretary, declined comment on whether Warner authored the provisions recommended by the committee. The language concerning promotions is part of a spending bill unanimously endorsed by the committee, he said .

Lippold is not singled out by name in the committee plan, which would require Bush to act by October 2008 to renominate any officer who has been nominated but whose name has been returned to the White House without a vote by the Senate. Lippold and two other officers are the only Navy personnel in that category, the Navy confirmed Monday.

If Lippold and the others are not renominated, they would be required to retire.

Tuesday, May 16, 2006

Opposition Filed on DoD Motion to Dismiss

Rory O'Connor sent over a copy of the Opposition brief that Mark Zaid filed today in the ongoing case over whether Lt. Col. Shaffer and J. D. Smith have a right to legal representation. DoD continues to take the position that they are not allowed to speak to an attorney regarding any aspects of Able Danger that might be classified. Nor will DoD even evaluate whether their attorney could ever be cleared for access. Which means they are on their own when it comes to briefing members of Congress.

You can download the petition here.

Here it is in plain text. Sorry about the formatting.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANTHONY SHAFFER et al. *
*
Plaintiffs, *
*
v. * Civil Action No. 06-271 (GK)
*
DEFENSE INTELLIGENCE AGENCY *
et al. **
Defendants. *
* * * * * * * * * * * *
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
The plaintiffs, Anthony Shaffer (“Shaffer”), and J.D. Smith (“Smith”), filed this
action to permit their attorneys to be provided at least verbal access to allegedly classified
information necessary for protecting their legal interests. The defendants Defense
Intelligence Agency (“DIA”), Department of Defense (“DoD”), Department of Army
(“Army”), George Peirce, Robert Berry, William J. Haynes, III, and Tom Taylor, have
refused to permit the plaintiffs to share any such information thereby interfering with
their First Amendment right to counsel.1
Contrary to the defendants’ claims, this case is not solely about the need for Shaffer
to share allegedly classified information with counsel for the purposes of participating in
Congressional briefings and/or hearings.2 It is about the need for effective and
appropriate legal representation and the scope of what that entails, which is best
determined by this Court, not the defendants.
1 Peirce and Berry, who are the General Counsel and Principal Deputy General Counsel
of DIA, respectively, have been sued in both their individual and professional capacities.
Haynes and Taylor, who respectively serve as the DoD General Counsel and Army
Senior Deputy General Counsel, have only been sued in their professional capacities.
2 Smith consents to the voluntary dismissal of his claims pursuant to Rule 41 of the
Federal Rules of Civil Procedure.
2
FACTUAL BACKGROUND
A. ABLE DANGER
At all times relevant to this case Shaffer served as a civilian employee of the DIA
and DoD, and a reserve military officer for the Army. He performed certain duties in
association with a DoD program code named ABLE DANGER, which included both
classified and unclassified components. First Amended Complaint at ¶12 (filed February
27, 2006)(“FAC”). ABLE DANGER was a United States Special Operations Command
(“SOCOM”) military intelligence program that was created as a result of a directive from
the Joint Chiefs’ of Staff in early October 1999 by the chairman of the Joint Chiefs of
Staff, Hugh Shelton. It was designed to develop an Information Operations Campaign
Plan against transnational terrorism, specifically al-Qaeda. Id. at ¶13.
Upon information and belief, ABLE DANGER identified the September 11, 2001
attack leader Mohamed Atta, and three of the 9/11 plot’s 19 hijackers, as possible
members of an al Qaeda cell linked to the 1993 World Trade Center Attacks or its
participants. This information was contained, among other locations, on a chart prepared
by Smith and turned over to Shaffer for use by ABLE DANGER. Although no specific
criminal or terrorist activity was detected, these individuals were viewed as having
associational links with known terrorists. Id. at ¶14.
ABLE DANGER used all information legally collected under the rule of law. All
publicly obtained information was approved after a legal review of SOCOM lawyers.
However, the information was ordered destroyed and this was accomplished by the
Spring of 2001, after ABLE DANGER had been officially and formally shut down for
unknown reasons. Additionally, upon information and belief, in or around Spring 2004,
the DIA improperly destroyed ABLE DANGER and other files that Shaffer had
maintained in his DIA work space. Id. at ¶15. If the primary assertion of the ABLE
DANGER members is true, the early identification of Atta contradicts the official
3
conclusion of the 9/11 Commission that American intelligence agencies had not
identified Atta as a potential terrorist prior to the 9/11 attack. Id. at ¶16.
Thus it was no surprise that former members of the 9/11 Commission, most notably
former Senator Slade Gorton, who has appeared on numerous television programs on this
matter, have publicly challenged these assertions and, at times, implicitly or explicitly
called those who have claimed to the identification of Atta pre-9/11 as liars. Two other
9/11 Commission members, Timothy J. Roemer and John F. Lehman, both have claimed
not to have received any information on Able Danger. Lee H. Hamilton, former Vice
Chair of the 9/11 Commission, and Al Felzenberg, a former spokesman for the 9/11
Commission, both denied that the 9/11 Commission had any information on the
identification of Mohammed Atta prior to the attacks. Id. at ¶17.
However, Shaffer asserts that in October 2003, in Bagram, Afghanistan, he told Philip
D. Zelikow, the Executive Director of the 9/11 Commission, and three other 9/11
Commission staff members, that ABLE DANGER had identified 9/11 hijackers, “to
include Atta”. Although Zelikow told Shaffer that what he had said was “very important”
and provided Shaffer his business card and asked him to call the Commission upon
Shaffer’s return to the United States, when Shaffer did so in January 2004, his attempts to
establish recontact with the Commission were rebuffed. Instead Shaffer was told that the
Commission had all the information it needed concerning ABLE DANGER from the
Pentagon. Id. at ¶18.
In July 2004, Navy Captain Scott Phillpott independently met with 9/11 Commission
staff and also informed them that ABLE DANGER had identified several 9/11 hijackers
pre-9/11. Id. at ¶19. Not one mention of ABLE DANGER can be found in the 9/11
Commission’s final report. Id. at ¶20.
On August 12, 2005, Thomas H. Kean and Lee H. Hamilton, former Chair and Vice
Chair of the 9/11 Commission, issued a statement in response to media inquiries about
the Commission’s investigation of ABLE DANGER. They now stated the Commission
4
had been aware of the Able Danger program, and requested and obtained information
about it from the DoD, but none of the information provided had indicated the program
had identified Atta or other 9/11 hijackers. They also confirmed that Captain Phillpott
had provided them information that Atta had been identified prior to the attacks but that it
was just days before the Commission’s report was scheduled to be released. Id. at 21.
Now ABLE DANGER was described by a former 9/11 Commission senior staffer as
“historically insignificant.” Id. at ¶21.
B. Allegations of Criminal and Other Inappropriate Conduct
Led to the Revocation of Shaffer’s Security Clearance
In or around April 2004, DIA informed Shaffer he was being placed on administrative
leave and that his security was facing revocation. He was formally served in or around
June 2004 with of a Notice to Revoke his security clearance. The allegations included
offenses of a potential criminal nature. Indeed, in association with some of the
allegations, Shaffer was appointed a military criminal defense attorney. Declaration of
Mark S. Zaid, Esq., at ¶7 (dated May 12, 2006)(“Zaid Decl.”), attached at Exhibit “1”.
Shaffer retained the undersigned counsel in or around April 2005 to substantively
respond to the DIA allegations. As was customary at the time, Shaffer’s counsel was
provided access to classified information. In or around late April 2005, Shaffer submitted
a sworn declaration attesting to the facts as he knew them to be. In order to provide this
Court with a sense of the allegations, a copy of this document is attached at Exhibit “2”.
Shaffer and the undersigned met with DIA for a personal appearance in June 2005.
Additional documents supporting the reinstatement of Shaffer’s clearance were also
submitted. ABLE DANGER played a substantive, though small at the time, role in these
initial clearance proceedings. Up to this point Shaffer had not yet gone public with his
knowledge of ABLE DANGER. Zaid Decl. at ¶8.
Everything changed when the news of ABLE DANGER became publicly known in
August 2005. The defendants’ retaliation and vendetta increased in intensity. Just days
5
before Shaffer was to testify before the Senate Judiciary Committee the following month,
DIA revoked his clearance. Upon information and belief, this was a deliberate action
undertaken by the defendants to attempt to further discredit Shaffer’s credibility and
directly tied to ABLE DANGER. An appeal was filed and in lightening speed, far quicker
than the undersigned had seen in any prior DIA case in a decade, Shaffer’s appeal was
summarily denied. Had Shaffer’s counsel had access to the alleged classified information
regarding Shaffer’s role in ABLE DANGER, it seems clear that a far more substantive
appeal could have been submitted to DIA for consideration. Id. at ¶9.
Additionally, for the first time the undersigned has ever witnessed, DIA moved to
suspend Shaffer without pay pending termination, the proposed action for which was to
be initiated shortly. Fortunately, congressional intervention persuaded DoD to halt all
DIA personnel actions against Shaffer until the conclusion of a still pending DoD Office
of Inspector General (“DoD OIG”) Investigation. Id. at ¶10.
It is Shaffer’s belief that the defendants violated various statutes and regulations, as
well as violated his constitutional rights, due to its actions against him as a result of
ABLE DANGER. Notwithstanding the forthcoming conclusions by the DoD OIG,
whatever they might be, Shaffer will pursue legal remedies to prevent DIA from
terminating his employment, and will challenge the revocation of his security clearance.
In order to do so, Shaffer’s counsel obviously requires knowledge of the allegedly
classified role Shaffer played with ABLE DANGER or otherwise it is not possible to
effectively advise Shaffer on his legal rights or chances for success. While the question as
to whether Shaffer is entitled to share classified information with his counsel is not yet
before this Court, it seems clear that he is presently facing factual circumstances that
justify such sharing.
6
C. Request by Shaffer’s Counsel to be Granted
Authorized Access to Classified Information
By letter dated August 30, 2005, Shaffer’s counsel requested that the defendants
officially permit their access to relevant classified information concerning ABLE
DANGER in order to represent Shaffer and others. This request was not conditioned on
the utilization of the information for participation in Congressional inquiries. It was a
general request in order to allow proper and effective evaluation of the legal and factual
circumstances of Shaffer’s case. However, it particularly cited, as an area of justification,
the need to handle classified congressional and DoD inquiries. Exhibit “3”. This request
was then specifically supplemented the next day due to the issuance of a formal invitation
for Shaffer to testify before the United States Senate. Exhibit “4”.
By letter dated September 16, 2005, defendant Peirce responded on behalf of all
defendants denying the undersigned counsel’s request for access to classified
information. Exhibit “5”. Upon information and belief, defendant Berry participated in
drafting and formulating the defendants’ response. FAC, at ¶24.
In September 2005, both Shaffer and Smith were scheduled to testify before the
United States Senate Judiciary Committee to discuss their involvement with ABLE
DANGER. Shaffer submitted proposed testimony to the DoD for classification review,
but the DoD has never responded. In any event, the defendants claimed all information
concerning ABLE DANGER was classified and refused to consent to allow the
testimony. Their undersigned counsel, Mark S. Zaid, testified in their place on September
21, 2005. Id. at ¶25.
By letter dated February 2, 2006, Shaffer renewed his request to share relevant
classified information with his counsel, particularly in order to appear in a closed,
classified House of Representative’s hearing. Id. at ¶27; Exhibit “6”. By letter dated
February 14, 2006, defendant Peirce responded on behalf of all defendants denying the
undersigned counsel’s request for access to classified information. Exhibit “7”. Upon
7
information and belief, defendant Berry participated in drafting and formulating the
defendants’ response. Peirce, as DIA General Counsel, does not possess the authorization
or qualifications to render clearance determinations under the circumstances. Id. at ¶28.
On February 15, 2006, Shaffer and Smith testified before two Subcommittees of the
House Armed Services regarding ABLE DANGER and related programs. Shaffer made
his desire to be represented by counsel in the closed session, which was to include
classified testimony. He publicly commented during his open session testimony (and
reiterated during the closed session) that he was not going to be permitted counsel in the
closed session and that this fact placed him in potential legal jeopardy. He noted that the
defendants refused to permit undersigned counsel access to classified information so as to
permit them to attend the closed, classified portion of the hearing and have therefore
deprived Shaffer of his right to assistance of counsel during said hearings. Although the
Subcommittees did not issue subpoenas, it was made clear that were Shaffer or Smith to
decline to appear voluntarily they would be compelled to do so. Id. at ¶29.
Shaffer’s credibility has been called into question and, based on the official views of
the defendants and other current or former Government representatives, the claims he
continues to make are nothing less than intentionally false. Therefore, Shaffer could
potentially face prosecution should his answers to government investigators, or even
public statements, be held to be either false or inconsistent thereby justifying and
requiring effective and complete representation throughout every aspect of these matters.
Id. at ¶33.
ARGUMENT
The defendants initially seek to dismiss this case, not on substantive grounds, but on
alleged procedural defects regarding subject matter jurisdiction under Rule 12(b)(1) and
service of process under Rule 12(b)(5) of the Federal Rules of Civil Procedure. Both
efforts should fail.
8
Federal courts are, of course, courts of limited jurisdiction and the law presumes that
“a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S.
283, 288-89 (1938); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442,
448 (D.C.Cir. 2004)(noting that “[a]s a court of limited jurisdiction, we begin, and end,
with an examination of our jurisdiction”). Because “subject-matter jurisdiction is an ‘Art.
III as well as a statutory requirement[,] no action of the parties can confer subject-matter
jurisdiction upon a federal court.’” Akinseye v. Dist. of Columbia, 339 F.3d 970, 971
(D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee,
456 U.S. 694, 702 (1982).
On a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule
12(b)(1), the plaintiff bears the burden of establishing that the court has subject-matter
jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The court may
dismiss a complaint for lack of subject-matter jurisdiction only if “‘it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief.’” Empagran S.A. v. F. Hoffman-Laroche, Ltd., 315 F.3d 338, 343
(D.C. Cir. 2003), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Because subject-matter jurisdiction focuses on the court’s power to hear the claim,
however, the court must give the plaintiffs’ factual allegations closer scrutiny when
resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for
failure to state a claim. Macharia v. United States, 334 F.3d 61, 64, 69 (D.C.Cir. 2003);
Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C.
2001). Moreover, the court is not limited to the allegations contained in the complaint.
Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir. 1986), vacated on other grounds, 482
U.S. 64 (1987). Instead, to determine whether it has jurisdiction over the claim, the court
may consider materials outside the pleadings. Herbert v. Nat'l Acad. of Scis., 974 F.2d
192, 197 (D.C.Cir. 1992).
9
I. THE PLAINTIFFS POSSESS STANDING TO PURSUE THIS CASE AND
THEIR CLAIMS ARE RIPE FOR ADJUDICATION
There is no disagreement regarding the nuances of well-settled law regarding ripeness
and standing. The basic rationale behind the ripeness doctrine is “to prevent the courts,
through avoidance of premature adjudication, from entangling themselves in abstract
disagreements over administrative policies, and also to protect the agencies from judicial
interference until an administrative decision has been formalized and its effects felt in a
concrete way by the challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148-49
(1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99 (1977).
A court may find challenges ripe for review after evaluating “(1) the fitness of the
issues for judicial decision and (2) the hardship to the parties of withholding court
consideration.” Nat’l Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803
(2003), citing Abbott Labs., 387 U.S. at 149. The D.C. Circuit has characterized the
ripeness inquiry as a balancing test where the court “balances the petitioner's interest in
prompt consideration of allegedly unlawful agency action against the agency’s interest in
crystallizing its policy before that policy is subject to review and the court’s interest in
avoiding unnecessary adjudication and in deciding issues in a concrete setting.” AT&T
Corp. v. FCC, 349 F.3d 692, 699 (D.C. Cir. 2003), quoting City of Houston v. Dep’t of
Housing & Urban Dev., 24 F.3d 1421, 1430 (D.C. Cir. 1994)(internal quotation marks
omitted).
Under AT&T’s guidance, the fitness for review prong consists of two considerations:
(1) “whether the disputed claims [are] presumptively suitable for judicial review;” and (2)
“whether the court or the agency would benefit from postponing review until the policy
in question has sufficiently crystallized by taking a more definite form.” 349 F.3d at 699-
700 (internal quotation marks and citations omitted). “Among other things, the fitness of
an issue for judicial decision depends on whether it is ‘purely legal, whether
consideration of the issue would benefit from a more concrete setting, and whether the
10
agency's action is sufficiently final.’” Atl. States Legal Found., Inc. v. EPA, 325 F.3d
281, 284 (D.C. Cir. 2003), quoting Clean Air Implementation Project v. EPA, 150 F.3d
1200, 1204 (D.C. Cir. 1998). If a claim “rests upon contingent future events that may not
occur as anticipated, or indeed may not occur at all,” it is not ripe for adjudication. Id. In
this Circuit, “the ‘hardship’ prong of the Abbott Laboratories test is not an independent
requirement divorced from the consideration of the institutional interests of the court and
agency. Thus, where there are no institutional interests favoring postponement of review,
a petitioner need not satisfy the hardship prong.” AT&T Corp., 349 F.3d at 700 (citation
omitted).
From a standing perspective, the analysis is quite similar. To satisfy standing
requirements, a plaintiff must demonstrate “that he ‘has sustained or is immediately in
danger of sustaining some direct injury’” that is both “real and immediate” and not
“conjectural” or “hypothetical.” City of Los Angeles v. Lyons, 461 U.S. 95, 101-02
(1983); see also Northeastern Fla. Chapter. Associated Gen. Contractors of Am. v. City
of Jacksonville, 508 U.S. 656, 663 (1993)(to establish standing, plaintiff must establish
an “injury in fact” that is “concrete and particularized” and “actual or imminent, not
conjectural or hypothetical”). It is plaintiffs who bear the burden of establishing that they
have standing to sue. See Lujan, 504 U.S. at 561.
A. Shaffer Has Standing To Challenge The Defendants’ Actions And His Claims
Are Ripe For Adjudication Given The Interference With His Attorney-Client
Relationship, The Scope Of Which Cannot Be Limited By The Defendants
The defendants assert that an “individual has no cognizable fight under the First
Amendment to have his private counsel be given access to classified information for
purposes of representing him when he appears as a fact witness at non-adversarial
congressional hearings and defendants’ denial of plaintiffs’ request for attorney access
was consistent with DoD regulations.” Memorandum in Support of Defendants’ Motion
to Dismiss at 2 (filed April 7, 2006)(“Defs’ Memo”). While the defendants’ articulation
11
of congressional interest and importance is misplaced and contributes to the reasoning as
to why this Court should deny their Motion, more importantly their restrictive depiction
of the Shaffer’s need for access is entirely inaccurate. This alone must defeat their
Motion, particularly because this is a substantive argument regarding the merits of this
case, and is not determinative of standing or ripeness.
Shaffer has not isolated his argument to the premise that the sharing of classified
information with his counsel relies solely upon the interests of Congress and the
possibility of future hearings or meetings. That was, to be sure, the predicate for the filing
of the initial Motion for Temporary Restraining Order/Preliminary Injunction (filed
February 15, 2006) given that Shaffer was facing imminent participation in a classified
session, without counsel present, before two Subcommittees of the House Armed
Services Committee. The defendants believe that “[u]nless and until, Congress actually
compels plaintiffs to testify about classified matters, this Court should avoid issuing an
advisory opinion on matters that might never occur and should dismiss plaintiffs’ claims
for lack of standing.” Def’s Memo at 2 (emphasis original). However, Shaffer’s request
for authorization to share relevant information with his attorneys – and hence the need for
this litigation – has a scope that is far broader that defendants imply.
It should also be clear that, with respect to the Administrative Procedure Act claims,
there has been final agency action in this case. The defendants have twice affirmatively
denied Shaffer’s request to provide his counsel with access to classified information.
Exhibits “5” and “7”. Nor is there any administrative policy that has not “sufficiently
crystallized” itself. Most of the claims in this case revolve around the Constitution and
seek declaratory relief. The defendants have failed to articulate any decisions that lack
finality or crystallization.
At issue is whether or not the defendants can infringe upon Shaffer’s First
Amendment constitutional right to share classified or potentially classified information
with his cleared counsel in order to obtain effective legal representation that would
12
permit adequate guidance and analysis on his legal choices and/or claims in general. This
representation, and the need for information, is not contingent on the occurrence of any
future events. It exists now. The administrative requests Shaffer submitted through
counsel to the agencies were never limited to Shaffer’s congressional involvement, but
merely cited to Congress as one tangible justification for why access was needed. FAC
¶¶23, 27. Indeed, the relief sought by Shaffer in this litigation makes it quite clear that he
is seeking to strengthen, and protect from intrusion, the entire attorney-client relationship.
FAC at 12 (relief requested in this litigation regarding sharing of allegedly classified
information is not limited to congressional events).
1. Congress Remains Very Involved With ABLE DANGER And Shaffer
The defendants have undertaken a poignant effort to downplay the anticipated
prospective role of Congress and its relationship to Shaffer’s need for counsel’s access to
classified information. As the defendants argue, Shaffer’s “First Amendment and APA
claims are based on the mere supposition that plaintiffs will suffer some type of injury by
testifying under oath at Congressional hearings or by being interviewed by investigators
of the DoD’s Office of Inspector General (“OIG”) without their counsel being privy to
classified information regarding ABLE DANGER.” Defs’ Memo at 10. Furthermore, the
defendants heavily rely on the argument that the “absence of any allegation that Congress
will compel their ‘classified,’ as opposed to ‘unclassified,’ testimony underlines the
speculative nature of plaintiffs’ claims.” Id. at 11.
The defendants provide no factual, but more importantly no legal, distinction as to
why this argument matters. One would imagine there is little doubt that were an
individual compelled to testify in any type of proceeding, particularly where their legal
interests were touched upon in some manner, the right to effective counsel is quite
heightened. However, the voluntary nature of a proceeding does not lead to the contrary
conclusion that an individual therefore loses the need or right to obtain effective counsel.
13
In any event, the defendants’ claims about congressional intent or future plans with
respect to ABLE DANGER and Shafffer have no basis in fact and are actually little more
than supposition on the part of its counsel. The defendants have provided no evidence
from Congress that pertains to this case. To the contrary, Shaffer has direct evidence from
a leading Member of Congress, Curt Weldon, whose Subcommittee has direct
jurisdiction over the ABLE DANGER controversy.
Congressman Weldon has made it clear that Congress continues to be involved with
ABLE DANGER in general and Shaffer in particular. Declaration of Congressman Curt
Weldon at infra (dated May 12, 2006)(“Weldon Decl.”), attached at Exhibit “8”. He also
noted that while there are no hearings presently scheduled, because of the speed in which
the scheduling process often operates, this Court might not have the time to render a
substantive ruling if it agrees with the defendants’ arguments.
The controversy surrounding ABLE DANGER and the plaintiffs remain a
priority for me and other Members of Congress. The House Armed
Services Committee, and certainly the Subcommittee I chair, remains
seized of the matter, and other Congressional Committees are very
interested in the topic as well. I fully anticipate that additional hearings
will be scheduled by one or more Congressional Committees on the topic
of ABLE DANGER and would likely require Lt Col Shaffer, and possibly
J.D. Smith, to serve as a witness. Moreover, without a doubt, there are
Members of Congress, and their staffs, who serve in positions that have
jurisdiction over ABLE DANGER issues and who wish to be briefed by Lt
Col Shaffer in a classified environment. In fact, I am aware of current
Members and/or their staff who presently desire such a briefing. Although
it is true that no Congressional hearings are currently scheduled which
involve ABLE DANGER, such scheduling can occur with very little
notice. If that occurs this Court would likely not be in a position to timely
act especially given the delicate issues of national security that do need to
be considered. Therefore, adjudicating this issue now would seem entirely
appropriate.
Id. at ¶4.
Therefore, the only evidence in the record of congressional interest favors this
Court’s denial of the defendants’ Motion.
14
2. The Legal Circumstances That Necessitate Shaffers’ Attorneys’
Access To Classified Information Extend Far Beyond Congressional
Involvement
Shaffer’s legal dilemma has already manifested itself, and he continues to face legal
peril at the hands of the defendants. He had his security clearance revoked and is facing
termination from his employment with DIA for matters related to his work on ABLE
DANGER. FAC ¶26. Because of ABLE DANGER, both the clearance revocation and
prospective termination are currently the subject of a DoD OIG investigation, and all
personnel actions against Shaffer have been stayed pending the conclusion of that
investigation.3 Shaffer’s actions have categorized him as a Whistleblower and as such he
may or may not have certain legal rights that accompany such status. He also holds
potential claims against the U.S. Government under the Constitution and various
regulations/statutes, the full extent of which cannot be ascertained without his counsel
having access to the full panoply of relevant information, and that certainly includes that
which may be considered classified. These are very real and immediate issues.
To argue that Shaffer’s claims are not ripe, or that he does not possess standing to
raise his claims, would eviscerate significant aspects of the very nature of the attorneyclient
relationship that would permit clients to ascertain the extent to which they have
been harmed or possess legal rights and potential remedies. In Caplin & Drysdale v.
United States, 491 U.S. 617 (1989), the petitioner, which was a law firm, contended that
a statute infringed on criminal defendants’ Sixth Amendment right to counsel of choice,
and upset the “balance of power” between the Government and the accused in a manner
contrary to the Due Process Clause of the Fifth Amendment. The Court ruled that
3 While it is true that Shaffer’s personal participation in the DoD OIG investigation,
which has included participation by his attorney, has not involved a classified meeting,
classified information is a prominent aspect of the investigation. Had Shaffer’s counsel
been permitted to participate in classified meetings in order to protect his legitimate legal
interests, Shaffer could have gone into more detail on his involvement and knowledge of
ABLE DANGER activities and DIA retaliation. For now, the DoD OIG merely possesses
some classified information from Shaffer as a result of observing his closed session
congressional testimony.
15
standing existed recognizing that the attorney-client relationship was “one of special
consequence” and that the statute at issue may “materially impair the ability of” attorneys
to exercise their clients’ constitutional rights. Id. at 624. Clearly if standing existed for
the third-party law firm to protect the attorney-client relationship from interference by the
Government, standing certainly exists for the harmed individual, i.e., the client such as
Shaffer, to purse a similar claim.
The notion that individuals are entitled to obtain proper legal assistance and that
interference with that process is a constitutional violation would seem unquestionable.
Determining the extent of that violation clearly confers standing and signifies ripeness.
For example, in In re Primus, 436 U.S. 412 (1978), the Supreme Court also noted that:
efficacy of litigation as a means of advancing the cause of civil liberties
often depends on the ability to make legal assistance available to suitable
litigants. “‘Free trade in ideas’ means free trade in the opportunity to
persuade to action, not merely to describe facts.” Thomas v. Collins, 323
U.S. 516, 537 (1945). The First and Fourteenth Amendments require a
measure of protection for “advocating lawful means of vindicating legal
rights,” [NAACP v.] Button, 371 U.S. [415], 437 [1963], including
“[advising] another that his legal rights have been infringed and [referring]
him to a particular attorney or group of attorneys . . . for assistance,” id., at
434.
Primus, 436 U.S. at 432.
A similar situation existed in United States v. Schmidt, 60 M.J. 1, 4-5 (C.A.A.F.
2004). Though obviously a criminal case which therefore involves different substantive
considerations with respect to the merits of the dispute, the underlying premise regarding
the important nature of the attorney-client relationship (and how it can relate to
standing/ripeness) remain the same.
The Government must also respect the important role of the attorney-client
relationship in maintaining the fairness and integrity of the military justice
system. Now that civilian defense counsel has been granted an appropriate
security clearance, we are confident that the military judge can take
appropriate action to protect the Government’s interest in restricting
disclosure of classified information in a manner that respects the right of
an accused service member under the Sixth Amendment and Article 27,
16
UCMJ, 10 U.S.C. § 827 (2000), to the effective assistance of counsel in
preparing a defense. See United States v. King, 53 M.J. 425 (C.A.A.F.
2000) (mem.).
Id. at 5.
What the defendants are trying to do is place the cart before the horse, or at the very
least delay the horse. Whether or not Shaffer is entitled to share classified information
with his counsel goes to the balancing equation this Court must ultimately apply later in
this litigation, but it is not a question of standing or ripeness.
3. Should This Court Still Question Shaffer’s Standing Or The Ripeness Of
His Claims The Defendants Should First Respond To Certain Discovery
Requests Before The Issuance Of A Ruling
On March 21, 2006, the plaintiffs served the defendants with document production
requests, interrogatory requests and requests for admissions after receiving permission
from this Court to do so. On April 19, 2006, just days before their response deadline, the
defendants filed Motions for a Stay of Discovery and Extension of Time in Which to
Serve Discovery Responses (despite the fact that at the March 17, 2006, Rule 16
Conference the defendants informed the Court that they intended to file this very motion
and participated in the discussion regarding discovery). One of the primary reasons for
the defendants’ Motions was that they believed the responses would be irrelevant to the
standing/ripeness issues. That is, indeed, true for some of Shaffer’s discovery requests
(which deal more with the merits of the underlying substance of the litigation regarding
whether a “need-to-know” exists or whether counsel is trustworthy), but clearly not all.
As has been stated, contrary to the defendants’ contention, this dispute is not limited
to congressional involvement. Shaffer has a viable claim to argue that he desires to share
allegedly classified information with his counsel. He has made that as perfectly clear as
can be. That by itself should confer standing upon him and demonstrate he has met the
burden for ripeness.
17
Alternatively, if the above has not persuaded the Court of this fact, the defendants
should first respond to some of the discovery requests that pertain to the relevant
regulations, policies, statutes and laws governing access to classified information,
particularly by counsel, and determinations of “need-to-know”. “The Government may
establish appropriate procedures to protect its interests in restricting access to classified
information pursuant to statutes, rules, and regulations. See e.g., Dep’t of Defense,
Regulation 5200.1-R, Information Security Program (January 1997).” Schmidt, 60 M.J. at
4-5.
If the relevant internal regulations and policies grant Shaffer the right to reach “needto-
know” determinations on his own, which Shaffer believes they do, then that clearly
would support his argument that he has standing and his claims are ripe. The only way to
obtain complete access to this information is through discovery as much of it is
unavailable through other means.4 The parties can then proceed to the true merits of the
litigation.
B. Shaffer Has A First Amendment Right To Counsel That Is Being Infringed
Upon By The Defendants
Though the merits of the litigation is not yet directly before the Court, the nature of
the substance is relevant in order to better understand the framework of the dispute
including that of ripeness and standing. Therefore, a brief foray into the legal analysis of
the constitutional right to counsel that is at issue may be helpful.
This Circuit has explicitly recognized an individual’s First Amendment interest in
communicating with an attorney. See Jacobs v. Schiffer, 204 F.3d 259 (D.C. Cir. 2000);
Martin v. Lauer, 686 F.2d 24 (1982); see also Denius v. Dunlap, 209 F.3d 944, 954 (7th
Cir. 2000)(“The right to hire and consult an attorney is protected by the First
Amendment’s guarantee of freedom of speech, association and petition.”); DeLoach v.
4 The document production requests that Shaffer believes are relevant to this Motion are
numbers 1, 2, 9, 11 and 12; that of his interrogatory requests are numbers 3-6, 12, 14, 19,
21-22; and those of the admission requests are numbers 1, 7, 8, 10-12, 19-21.
18
Bevers, 922 F.2d 618, 620 (10th Cir. 1990)(“The right to retain and consult an attorney ...
implicates not only the Sixth Amendment but also clearly established First Amendment
rights of association and free speech.”). Like this case, both Jacobs and Martin involved
government restrictions on what information employees could share with their lawyers.
These Circuit holdings are buttressed by Supreme Court precedent recognizing a
constitutional right of unfettered access to counsel. It has long been recognized by the
Supreme Court that the First Amendment prohibits the government from interfering with
collective action by individuals to seek legal advice and retain legal counsel. See
United Transp. Union v. State Bar of Mich., 401 U.S. 576, 585-86 (1971)(“Collective
activity undertaken to obtain meaningful access to the courts is a fundamental right
within the protection of the First Amendment.”); United Mine Workers of Am. v. Illinois
State Bar Ass’n, 389 U.S. 217, 221-22 (1967)(“The freedom of speech, assembly, and
petition guaranteed by the First and Fourteenth Amendments gives petitioner the right to
hire attorneys on a salary basis to assist its members in the assertion of their legal
rights.”); see also Brotherhood of R.R. Trainmen v. Virginia, 377 U.S. 1, 6 (1964);
Button, 371 U.S. at 429-30.
So too is an individual’s ability to consult with counsel on legal matters
constitutionally grounded. See Bates v. State Bar of Ariz., 433 U.S. 350, 376 n.32
(1977)(“Underlying [the collective action cases] was the Court's concern that the
aggrieved receive information regarding their legal rights and the means of effectuating
them. This concern applies with at least as much force to aggrieved individuals as it does
to groups.”); see also Trainmen, 377 U.S. at 7 (“A State could not ... infringe in any way
the right of individuals and the public to be fairly represented in lawsuits....”).
Furthermore, the right to obtain legal advice applies equally to legal representation
acquired for any purpose - including to advocate a political or social belief, Button 371
U.S. at 419-20, or to recover damages in a personal injury suit, United Mine Workers,
19
389 U.S. at 223. In sum, the First Amendment protects the right of an individual or group
to consult with an attorney on any legal matter. Denius, 209 F.3d at 954.
The First Amendment interest in speaking freely to counsel is “interwoven” with the
fundamental and constitutionally protected right of access to the courts. Martin, 686 F.2d
at 32. Without the right of access to the courts, “all other legal rights would be illusory.”
Id. Meaningful access to the courts is contingent on the ability of an attorney to give
sound legal advice, and “restrictions on speech between attorneys and their clients
directly undermine the ability of attorneys to offer sound legal advice.” Id.
While it is true that none of the cases cited above address the question of the
appropriate balance between an individual’s right to consult with counsel and the
government’s interest in protecting national security information, the strength of the
interest asserted by the government to counterbalance the plaintiffs’ First Amendment
interests does not negate the implication of Shaffer’s interests here. Shaffer’s ability to
receive sound advice from counsel as to the legality of the actions and statements taken
against and regarding them has been infringed by defendants’ denial of access to the
plaintiffs’ attorney.5 See Stillman v. DoD, 209 F. Supp. 2d 185 (D.D.C. 2002), rev’d on
other grounds, 319 F.3d 546 (D.C.Cir. 2003).
Shaffer is unable to speak freely with his attorneys about his knowledge of specific
and relevant events that led to the actions undertaken and statements asserted by the
Government and its officials. As the Supreme Court has recognized, “the first step in the
resolution of any legal problem is ascertaining the factual background and sifting through
the facts with an eye to the legally relevant.” Upjohn Co. v. United States, 449 U.S. 383,
5 The defendants frequent citation to Department of Navy v. Egan, 484 U.S. 518 (1988)
notwithstanding. This case is continually misinterpreted in an expansive manner as to
give the impression that Article III courts cannot adjudicate or challenge agency security
clearance determinations. Egan’s authority is strictly limited to an interpretation of the
statutory jurisdiction of the Merit Systems Protection Board.
20
390-91 (1981). Indeed, the plaintiffs have a “legitimate interest in an early assessment of
[their] legal rights.” Id.
III.THE DEFENDANTS HAVE EITHER BEEN SERVED OR ARE IN THE
PROCESS OF BEING SERVED
This case was filed on February 14, 2006. No Complaint was filed as it initially began
as a Motion for Temporary Restraining Order/Preliminary Injunction. The First Amended
Complaint was filed on February 27, 2006. The Clerk of the Court issued Summonses on
March 6, 2006. The Summons are valid for 120 days.
As an alternative defense the defendants argue that the case should be dismissed due
to a lack of service. This defense requires short shrift.6 The federal defendants have been
properly served. The U.S. Attorney’s Office received the Summons and Complaint on
May 1, 2006. Zaid Decl. at ¶¶4-5; Exhibit “1A”. Additionally, the individual defendants
are in the process of being served through the U.S. Mail as permitted by Rule 4 of the
Federal Rules of Civil Procedure. A copy of the First Amended Complaint and two
copies of Form 1B (Waiver of Service of Summons), along with a SASE, was mailed to
both individual defendants on May 12, 2006. Zaid Decl. at ¶6. Whether they have
cognizable legal defenses to relieve them of personal liability is not an issue before this
Court at this time.
6 For one thing, the plaintiffs properly served the federal defendants pursuant to the
appropriate rules governing the filing of a Motion for Temporary Restraining
Order/Preliminary Injunction pursuant to LCvR 65.1. The defendants participated in
proceedings relevant to that Motion.
21
CONCLUSION
Based on the foregoing, the defendants’ Motion to Dismiss should be denied.
Dated: May 12, 2006
Respectfully submitted,
/s/
________________________
Mark S. Zaid, Esq.
DC Bar #440532
Krieger & Zaid, PLLC
1920 N St., N.W.
Suite 300
Washington, D.C. 20006
(202) 454-2809
ZaidMS@aol.com
Attorney for Plaintiffs

Monday, May 15, 2006

New witness verifies Able Danger claims

The quote of note is at about the five minute mark. From C-SPAN's Washington Journal last Wednesday:

CALLER: YES, GOOD MORNING. I'M LISTENING TO YOUR STATEMENT THERE, SENATOR WELDON. IT IS NICE TO SEE YOU. HOWEVER, THE BUDGET. I'M JUST WONDERING IF THEY'RE GOING TO TAKE THIS BUDGET AND EARMARK IT WITH A BUNCH OF RIDERS ON THERE FOR EXTRA SPENDING, LIKE HAD HE NORMALLY DO, WHICH I WOULD HATE TO SEE. I WOULD LIKE TO SEE A CLEAR BUDGET THAT COVERS ALL FACETS OF OUR DEFENSE. HOWEVER, WHILE YOU'RE HERE, COULD YOU PLEASE BRIEF US, UPDATE US, ON "ABLE DANGER." IT SEEMS LIKE ANYBODY WHO SAYS ANYTHING ABOUT THIS IN THE MEDIA OR ANYWHERE BECOMES PERSONA NON GRATUS. MANY PEOPLE WANT TO KNOW WHAT'S HAPPENING WITH THAT.

GUEST: REP. CURT WELDON (EXCERPT) ON "ABLE DANGER," I'M GLAD YOU ASKED THE QUESTION. BECAUSE THERE HAS BEEN RESISTANCE BY THE PREVIOUS ADMINISTRATION AND BY SOME IN THIS ADMINISTRATION NOT TO HAVE THIS STORY TOLD. THE GOOD NEWS IS THE INSPECTOR GENERAL FOR THE DEPARTMENT OF DEFENSE IS CONTINUING A MAJOR INVESTIGATION THAT I THINK IS GOING TO BRING FORTH SOME SIGNIFICANT REVELATIONS TO THE AMERICAN PEOPLE, AND SIGNIFICANT CHANGES IN THE INTELLIGENCE OVERSIGHT AND WHAT WAS DONE TO LIEUTENANT COLONEL SCOTT SCHAFER AND OTHER MEMBERS OF THE "ABLE DANGER" TEAM. ALONG WITH THAT WORK, I CAN TELL YOU THAT I HAVE A NEW WITNESS.

I'VE NOT ANNOUNCED THIS YET, SO YOU'VE ALLOWED ME TO OFFER THIS TO OUR VIEWERS. ANOTHER MEMBER OF THE MILITARY HAS RETIRED AND HAS COME FORTH AND WILL VERIFY EVERYTHING THAT THE "ABLE DANGER" TEAM HAS SAID. YOU KNOW, THE AMERICAN PEOPLE HAVE A RIGHT TO KNOW WHAT HAPPENED IN THE RUN-UP TO 9/11. THIS IS NOT EMBARRASSING -- ABOUT EMBARRASSING PEOPLE. IT IS ABOUT FACTS. AND CLEARLY, THE "ABLE DANGER" STORY THAT WAS COMPLETELY KEPT OUT OF THE 9/11 COMMISSION REPORT, THAT HAS NOT BEEN WELCOMED BY EITHER ADMINISTRATION, NEEDS TO BE TOLD. 248 OF MY COLLEAGUES SIGNED A LETTER LAST FALL THAT I SENT TO SECRETARY RUMSFELD DEMANDING THAT WE ALLOW THE "ABLE DANGER" PRINCIPLES TO TESTIFY IN AN OPEN FORUM. WE'VE HAD ONE HEARING. THE INVESTIGATION CONTINUES. THE INFORMATION CONTINUES TO COME OUT AND I CAN TELL YOU THE AMERICAN PEOPLE DESERVE TO HAVE ANSWERS. AS LONG AS I'M IN CONGRESS, I WILL CONTINUE TO PUSH FOR WHAT REALLY HAPPENED IN THE RUN-UP TO 9/11.

Thursday, May 11, 2006

It is called data mining

Looks like someone learned a few lessons from Able Danger after all. Of course, never mind that the Israelis had been doing this for us well before 9/11 anyway. Let the mass hysteria begin, while the administration continues to coverup the strongest case for data mining, the fact that Able Danger could have stopped 9/11 - without even mining domestic call data.

From USA Today:

The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.

The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans - most of whom aren't suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.

"It's the largest database ever assembled in the world," said one person, who, like the others who agreed to talk about the NSA's activities, declined to be identified by name or affiliation. The agency's goal is "to create a database of every call ever made" within the nation's borders, this person added.

For the customers of these companies, it means that the government has detailed records of calls they made - across town or across the country - to family members, co-workers, business contacts and others.

The three telecommunications companies are working under contract with the NSA, which launched the program in 2001 shortly after the Sept. 11 terrorist attacks, the sources said. The program is aimed at identifying and tracking suspected terrorists, they said.

Wednesday, May 10, 2006

Sestak's Press Secretary works for Sandy Berger

From the Weldon Congressional Campaign:

Sestak’s spokesperson, Allison Price, is Director of Communications at Sandy Berger’s DC Consulting and Lobbying Firm.

Michael Puppio, Delaware County Chairman of Congressman Curt Weldon’s reelection campaign, today questioned Democrat candidate Joe Sestak’s ties to Stonebridge International, a Washington, DC based consulting and lobbying firm. Sestak’s spokesperson Allison Price is the Director of Communications at the firm, which was founded by former Clinton Administration official Sandy Berger, who was convicted of mishandling and destroying classified evidence related to the 9/11 terrorist attacks.

Allison Price, Sestak’s official campaign spokesperson, is listed on the lobbying and consulting firm’s website as its Director of Communications, which would seem to indicate a conflict of interest. Among its numerous clients, the firm is a registered lobbyist before Congress on behalf of French aircraft manufacturer Airbus, The Boeing Company’s major international rival in the production of civilian aircraft. The firm also lobbies on behalf of Gulfsands Petroleum, a company with oil interests and projects in Iraq and the Syrian Arab Republic. In addition, to Sestak’s spokesperson’s ties to the firm, the principal of Stonebridge International, Sandy Berger hosted a major fundraiser for Sestak in Washington, DC that raised tens of thousands of dollars for Sestak’s campaign.

“Joe Sestak has been in the race only two months and he’s already cozying up to special interests,” said Michael Puppio. “I’m not sure how Joe Sestak can justify having a campaign spokesperson who works at a major DC lobbying firm. Beyond supplying campaign staffers, is Stonebridge International also helping to craft Joe Sestak’s policy positions? This just doesn’t pass the smell test.”

Joseph Sestak’s federal campaign filings list his spokesperson Allison Price, who donated $500 to his campaign, as a consultant with Stonebridge International. The company’s website also lists Allison Price as its “Director of Communications,” noting that she “manages the firm’s communications strategies and plans.” A telephone call placed to the offices of Stonebridge International also transferred one of Congressman Weldon’s campaign staffers to Allison. (http://www.stonebridge-international.com/bios/bio25.html)

“First Joe Sestak accepts money from an individual who mishandled and destroyed classified information,” said Puppio, referring to Berger’s federal conviction. “Now it seems he’s running part of his communications efforts out of that lobbyist’s office. It will be interesting to see if his campaign finance reports list this as an in-kind contribution.”

Last week, Joe Sestak stated that there needs to be “full transparency between members and lobbyists.” But to date, he has not disclosed anything regarding his own relationship with Stonebridge International and how it relates to his campaign spokesperson.

“Joe Sestak is already aligning himself with Washington special interest groups,” said Puppio. “Sestak is now indebted to a firm lobbying on behalf of French company Airbus, which is competing with Boeing on a variety of contracts, potentially resulting in the loss of jobs here in Delaware County. Given his relationship with Stonebridge, I have no confidence that Joe Sestak is going to put the interests of local residents and Boeing workers above those of his lobbying friends in Washington.”

Puppio also questioned Stonebridge’s representation of Gulfsands Petroleum, which has interests in Iraq and the Syrian Arab Republic.

“Local residents deserve to know if Sandy Berger or any other employee of Stonebridge has talked to Joe Sestak about Iraq, the Middle East, and oil prices,” said Puppio. “We don’t know what Gulfsands agenda is in Washington or the Middle East and how it is impacting Joe Sestak’s position on these issues. Voters have the right to know how Sestak is being influenced by these groups.”

Last week, Weldon questioned Sestak’s campaign contributions from recently dismissed CIA analyst Mary McCarthy, who was fired from her position within the intelligence community for illegally leaking classified information and materials that may have endangered counter-terrorism operations. McCarthy was hired to her position in the CIA by Sandy Berger. When Weldon urged Sestak to return the campaign contribution, Sestak’s spokesperson, Allison Price, told The Hill newspaper that “McCarthy gave because she thought much needs to change in Congress.”

“Delaware County residents deserve to know the type of people who want Joe Sestak in Congress and what their agendas are,” said Puppio. “Congressman Weldon has consistently put local resident first, through job creation, and funding local transportation and open space protection initiatives. Most importantly, you know that Curt is his own man, he’s an independent who speaks his mind. I’m not so sure that’s the case with Joe Sestak.”

Sunday, May 07, 2006

Able Danger and the CIA

Well, it's May now, and still no word on the status of the IG investigation into the clear retaliation against members of the Able Danger team for speaking out. Anyway, as you might have heard, Porter Goss has resigned. AJ Strata offers his take on it here:

The only place stuck on stupid is the long term CIA rogues who cannot face the fact they screwed up. The CIA was against the new technology of Able Danger! They were the ones who have been fighting change.


Meanwhile, Michael Tanji at Group Intel has put together some odds on who might get the job:

3:1 General Hayden. Easy enough since most people are already claiming he’s the nominee. He is also the expected choice since you’d be hard pressed to find an example of a real outsider getting a job like this. Generally speaking (no pun intended) I don’t like the safe picks because they’re just more of the same old, but General Hayden managed to reign in an even bigger and more unruly IC bureaucracy (NSA), which is no small feet, and he’s got the confidence of his current and future boss. Easy money.

7:1 Mary Margaret Graham. DDNI Collection. Late of the CIA doing CI, but is apparently no fan of the discipline if recent reports are correct. Definitely a safe choice and close to the once and future boss, but not known for a willingness to break china.

10:1 LTG (R) Hughes. Former D/DIA, former head of intel at DHS. Old school, which I’m not fond of, but Army, which I am fond of. He gets extra credit in my book for leaving a comfortable retirement to try and square away the fiasco that was DHS intel. You gotta give props to a guy who willingly signs up for ulcers, migraines and insomnia. Not overly political, so confirmation should be fairly easy, but not exactly a name linked to big reform efforts....

1,000:1. Tony Shaffer. Will need to have clearance re-instated. Thinks outside of standard parameters. Military and C/O experience. Knows office politics and life at the pointy-end of the spear. Cares not a wit for rice bowls and propriety if it gets in the way of success. Politics undetermined, but seems to only have right-leaning allies for some reason (ahem). Not afraid to stand up for his beliefs, name names, call spades spades.


You might recall LTG Hughes as one of the "good guys" Shaffer named in his testimony:

LTG Pat Hughes, the Director of DIA during the 1999-2000 period, who allowed my unit, STRATUS IVY, the charge to take on ‘out of the box’ ideas, and develop them into real intelligence operations. It was his constant encouragement that allowed for entrepreneurial concepts to develop in this pre-9-11 era. He personally approved STRATUS IVY’s mission and signed us up to support cutting edge black programs that became the mainstay of my unit’s efforts....

January-March 2001. DIA is requested to provide updated info for the effort to be re-established in Tampa. DIA begins to drag its feet across the board with the departure of LTG Hughes, MG Harding and COL York. STRATUS IVY is prohibited by DIA/DO’s new leadership, MG Isler, from participating in the NSA and DIA data transfer.


My understanding is that other than the it's mission against Al Qaeda, which got the rug pulled out from under it for some reason, Stratus Ivy was highly successful in large part thanks to Lt. General Hughes. If I were plotting against the US in Iraq, Iran, or North Korea, I would not want that capability to be rebuilt over at the CIA. If it was, I might be checking my rearview mirror a lot more often than before.