Okay, I still haven’t gotten through the IG Report on exigent letters. But Ryan Singel at Threat Level has–and he made a really disturbing find. Obama’s OLC (the one that Dawn Johnsen might have been leading if anyone had pressured Arlen Specter when he flipped parties) legalized the illegal use of exigent letters several weeks ago.
But in a surprise buried at the end of the 289-page report, the inspector general also reveals that the Obama administration issued a secret rule almost two weeks ago saying it was legal for the FBI to have skirted federal privacy protections.
[snip]
The Obama administration retroactively legalized the entire fiasco via a secret ruling from the Office of Legal Counsel.
That’s the same office from which John Yoo blessed President George W. Bush’s Bush’s torture techniques and warrantless wiretapping of Americans’ communications that crossed the border.
In the report’s final and heavily censored section, it discloses that the Office of Legal Counsel issued an opinion almost two weeks ago that it was legal for the FBI to obtain Americans’ phone records in the same manner that was harshly criticized by the inspector general’s report.
The inspector general also warned that the Office of Legal Counsel’s ruling needs to be considered by Congress.
Basically, it seems Obama attempted to make all the poison fruit based on these illegal searches legal by using the same tactic David Addington would–by having a lawyer at OLC make it okay.
In other words: “yes, we can.”
The OBAMA Justice Department is becoming as much a contradiction in terms as the Bush one. Scratch that. It is the Bush DoJ.
And except for the better grammar, the current occupant of the WH is the clone of his predecessor.
And we wonder why Dawn Johnsen was not confirmed by the Senate six or eight months ago.
If I were Ms. Johnsen, I would enjoy my stint at IU Bloomington and publish a pointed, detailed letter to the White House, withdrawing her nomination. That would save her twisting in the wind another 10 months before Obama admits – after the November 2010 elections – that with fewer than 60 votes, he just “can’t” get her nomination through the Senate (without, say, asking for it).
If Johnsen is as principled as she seems to be I hope she would refuse the appointment and let Obama/Bush continue along its chosen path. I don’t know whether I’d want to be associated with anything Sunstein proposes either.
Now that’s a surprise.
What a novel idea.
“In the report’s final and heavily censored section, it discloses that the Office of Legal Counsel issued an opinion almost two weeks ago that it was legal for the FBI to obtain Americans’ phone records in the same manner that was harshly criticized by the inspector general’s report.”
Let’s construct a timeline to explain why the release was delayed, and is now released.
Never mind… no timeline needed here. It was just a matter of waiting on all the ‘appropriate approvals’ before release.
Marty Lederman, I’m surprised. I guess he’s been getting some lessons on how The Real World works.
Barrack Obama, a true Trogan Horse.
I am not sure which is more disturbing; the OLC legalizing the illegal use of exigent letters, or the fact that the same methodology of making the breaking of the law legal via OLC is used by two different & consecutive administrations?
The latter I find a wee bit more so because it infers something that Jeff Kaye suggested just a few days ago.
Perhaps we need to start looking at the consulting behind the players.
Here are some bits from Jeff Kaye:
and
And what further horrors will be in Friday’s news dump? And only one weekend to recover from the waves of nausea this week caused. Which reminds me of this quote (though it’s entirely out of context): “Nothing seemed true; I felt surrounded by cardboard scenery which could quickly be removed….”
—Sartre’s Nausea, 1959 edition, pp 106-7
News dump or shiny object?
One or the other.
Maybe both.
Stay tuned to your local station
“News dump or shiny object?”
You got it.
This is the only part of the report relevant to Ryan Singel’s main comment:
“After reviewing a draft of the OIG report, the FBI asked the … (OLC)for a legal opinion on this issue [footnote 280: “Whether Chapter 121 of Title 18 of the United States Code applies to all call details associated [remaining 2.5 lines redacted]
On January 8, 2010, the OLC issued its opinion, concluding that the EPCA “would not forbid electronic communications service providers [remaining 3 lines redacted, ending at footnote 281, which is completely redacted] In short, the OLC agreed with the FBI that in certain circumstances [word or acronym redacted] allow the FBI to ask for and obtain these records on a voluntary basis from the providers, without legal process or a qualifying emergency.”
[all above taken from report pages 264 and 265; all emphasis added by me]
That does not support the inference that the Obama OLC issued anything like a complete endorsement of Bush-era policy on this area. It does suggest that the FBI, on reflection, saw the opportunity to make a narrow, technical distinction about a certain subset of the mass of call details obtained over the entire period during which the law wasn’t followed; framed the issue to OLC accordingly; and accordingly received at least some support from the OLC on the FBI position on the issue as framed.
Due to all the redactions, we’re compelled to guess on the character of the membership of that subset; but just based on what we can see, one type that would qualify is instances which might qualify as truly ‘voluntary’, as in offered, or offered on urging [Among other things, the IG noted there were instances where the service provider actually made up the form for the FBI …!!!]. Such an overly-technical point avoids the crux of the IG’s criticism, which includes that the relationship among the government offices and officers and the service providers reps was saturated in the conflicts of interest and other frailties that typify each of government bureaucracy and for-profit entrepreneurial corporatism, resulting, not surprisingly, in the mutated progeny the IG describes finding.
I go a bit further: Carving out such a subset with a narrowly-framed issue is significantly eased by the fact that there’s lots of law that supports the government’s lawful use of information and evidence which some non-government actor has brought to the government’s attention. All of that may be nothing more than an attempt to evade the reality that the relationship from which the information or evidence derived held all the conscious integrity of a spring-time serpentine clusterfuckball; but it could be that all that happened here is the current OLC conceded the narrowly-technical legal point as being supported in the law.
But most States have privacy laws that prohibit that kind of turnover – so can you call it “voluntary” if it’s being given in response to federal indicia that they are “entitled” to it (with some supremacy aspects) but in violation of state law?
Quite so; and there would be lots of other objections, some of which are apparent from the parts that aren’t redacted, particularly the over all picture framed in advance of the relatively tiny part of the report that refers to the “Obama” OLC being in any way involved.
My point remains: Not only is there nothing in the parts we can read that amounts to a whitewash or support; one can’t even infer the particular whitewash that’s being implied, if what happened here is some federal beagle[s], to that point not having offered any manner of legal rationalization [except for not having specifically intended the illegal result of the negligent mess they primarily contributed to making] determined to add a little heft by leaving room for the impression of the “Obama” OLC ‘supporting’ the mess, by baiting the issue they themselves framed with a long-established, pretty mundane legal talking point that really doesn’t go beyond begging the question.
All this doesn’t mean the “Obama” OLC definitely has NOT been involved or compromised itself somehow; it’s just that I don’t see how we get there from something that on appearance is at least as likely to be a red herring. Note again the actual space it takes even if all of whatever the OIG wrote were to be un-redacted, in a report that, leaving aside the extent of redaction, is full of details on everything else.
Also, I wouldn’t want my point to be taken as endorsing the sufficient of the IG’s critique of the FBI’s various rationalizations and excuses. The picture is of a bunch of Homer Simpsons bringing their buddies from Mo’s bar into the handling area for radioactive material, pleading incompetence for the ensuing meltdown.
Thanks so much for taking the time to point out that the report doesn’t specifically say that and including the references. That’s really helpful
If I mischaracterized your comments apologies in advance.
Well, if it was illegal behavior in violation of statute, the OLC cannot make it legal with their pixie dust wand; they cannot overcome statutory law.
I love how succinct you are :)
Question: Do any of these events pertain to the infamous Gonzales visit to Ashcroft in the hospital? The time frames do overlap. FISC, FBI, ‘other sources of the info’ and so on are present in the events covered by OIG report.
Question: Were these issues ‘pixie dusted’ by the previous administration? (and if so why was the recent OLC ruling necessary?).
If this was not ‘pixie dusted’ by the previous administration why not?
( it seems that would/could have been done wrt these ‘issues’).
Was it a case that too many people new about the subject for ‘pixie dust’ to work?
i just can’t comprehend obama doing this.
but cheney has been very quite for several months, so maybe the white house and the authoritarians from the bush admin made a deal.
ex post facto legalization would then be expected as part of that deal.
most likely though it is just obama’s determination never to open the pandaora’s box of prosecution of federal officials from the bush era for any crime.
because obama realizes that all roads for crime lead to the bush white house – to alberto gonzales, cheney, and bush.
i can hear it now, buttercup singing “you got a friend in me” to cheney.
now this is where impeachment might really have a chance in a few more months – obstruction of justice for holder and obama.
but whatever the excuse, obama and holder’s behavior is appalling and extraordinarily risky for them.
That pretty much says it for me.
I haven’t looked at the documents at all so don’t have an opinion. This may well be just as bad as it seems, or maybe LabDancer’s analysis that this is very narrow is right…though I’m not sure if that makes it ok.
Too many things to worry about right now to try to slog through it – thanks Marcy and bmaz for taking on those chores.
I wouldn’t say Cheney has been quiet for “months;” He was babbling quite a bit after Christmas and into the New Year. I think what shut him up was the Haiti Earthquake; the news orgs aren’t paying much attention to anything else. When Haiti coverage ebbs, both Cheneys, I predict, will be back.
Thanks, lab dancer, for your comments at 14 and 20.
I don’t know the legal jargon, but the just seems to be that a narrow exception was carved out for some purpose. The careful legal thinking is consistent with holder’s other efforts to avoid having the doj become prosecutor for the misdeeds of various bush officials (or officials acting while bush was in office).
Carefully worded and limited though it is, in your reading,
Might the protection granted still support ew’s thesis that FBI behavior was retroactively blessed by an OLC reading of the law?
Kinda related: Gates has confirmed that Blackwater is in Afghanistan.