Human Rights First's U.S. Law and Security Digest is a weekly report to help keep you up to date about developments in U.S. national security law and policy that have an impact on civil liberties and human rights.

HRF REFUTES CLAIM THAT WATERBOARDING IS LEGAL
In a letter to the editor published in USA Today on Tuesday, November 20, Michael Posner, President of Human Rights First, denounced waterboarding, explaining that it "violates both a federal torture statute and an international treaty to which the United States is a party." Mr. Posner's comments appeared in response to a November 14 article by Mary Jo White, a former U.S. attorney for the Southern District of New York who led the prosecution of several high-profile terrorism cases. Ms. White praised Attorney General Mukasey for his independence and his refusal to state that waterboarding is illegal in all circumstances without having reviewed classified information. Waterboarding is not explicitly barred by existing legislation, argued Ms. White; rather, "methods that are considered to be ‘torture,' ‘cruel, inhuman and degrading treatment' or that ‘shock the conscience'" are prohibited. Mr. Posner disagreed, calling waterboarding torture and citing a November 2 letter from four retired military judge advocates general that stated: "Waterboarding detainees amounts to illegal torture in all circumstances." Read more.

PRIVATE CONTRACTORS SUBPOENED IN GRAND JURY INVESTIGATION
On Monday, November 19, officials announced that a Washington grand jury had issued subpoenas to private contractors present at a September 16 shooting in Iraq that killed 17 Iraqi civilians. While the number of subpoenas remains unknown, an anonymous source alleged that they had been issued mainly to Blackwater employees, the firm involved in the September 16 shooting. The Iraqi government has stated that it is aware of at least 20 shooting incidents involving employees from private security firms. Over half of these incidents were attributed to Blackwater guards. Officials remain unsure whether existing federal criminal laws apply to private contractors and warned that the subpoenas do not guarantee that criminal charges will be brought. Also on Monday, following the shooting of an 18-year-old female civilian in Baghdad, the Iraqi military announced that it had detained 43 people from a convoy for a Dubai-based contractor named Almco. Witnesses have said a guard on the convoy shot the teenager in the leg. Almco currently holds two contracts with the U.S. government. Officials allege that no Americans are among the 43 detainees. Read more.

STATE SECRETS DOCTRINE HINDERS SUIT AGAINST WARRANTLESS SURVEILLANCE PROGRAM
On Friday, November 16, the U.S. Court of Appeals for the Ninth Circuit issued a ruling excluding crucial evidence about the National Security Agency's (NSA) wiretapping of the Al-Haramain Islamic Foundation in a case challenging the NSA's eavesdropping program. The charity's lawsuit presents one of the strongest opportunities to dispute the constitutionality of the NSA program. In 2004, the FBI accidentally gave the charity a secret document revealing that the NSA had tapped the organization's communications without a warrant in violation of the Foreign Intelligence Surveillance Act (FISA). The Ninth Circuit's ruling relied on the state secrets privilege, finding "the need to defer to the executive on matters of foreign and national security..." However, the court also found that the subject matter itself is not a state secret because the government has openly discussed the NSA program. As a result, the state secrets doctrine cannot be used to discard all suits questioning the program's legality. In addition, the court remanded to the district court the question whether the NSA's violation of FISA trumps the state secrets claim. In related news, a federal judge in Virginia warned on Tuesday, November 20, that she may order a new trial for Islamic scholar Ali al-Timimi if the government does not permit lawyers to review classified materials suggesting that al-Timimi was wiretapped after the September 11 attacks. Al-Timimi was sentenced to life in prison in 2005 for inciting his followers to commit terrorist acts. Read more.

NOVEMBER 30: PANEL ON PAKISTAN AND U.S. NATIONAL SECURITY
The Center for American Progress will host a discussion entitled "Turmoil in Pakistan: Implications for U.S. Security." The panel will examine recent developments in Pakistan and the effect these events may have on the U.S., with a focus on the threat of terrorism, the mission in Afghanistan, and nuclear weapon developments. The discussion will begin at 9:00 a.m. at the Center for American Progress, 1333 H St. NW, 10th Floor, Washington, DC. More information.

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